Membership Agreement

Last updated: August 1, 2006

Smalltown, Inc., a Delaware corporation ("Smalltown") welcomes you. The use of Smalltown Web site, currently located at www.smalltown.com (the "Site") and the services offered on and through the Site (such services and the Site shall collectively be referred to as the "Service") is subject to the terms and conditions of this membership agreement (the "Agreement"). "You" or "Your" means an individual or entity to whom Smalltown has given the rights to use the Service pursuant to the terms of this Agreement. Smalltown grants You the rights to use the Service described herein in consideration of Your acceptance of the terms and conditions of this Agreement. IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS AGREEMENT. BY CLICKING THE "I ACCEPT" BUTTON, YOU ARE AGREEING TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THESE TERMS AND CONDITIONS OR OTHERWISE DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MUST CLICK THE "I DO NOT ACCEPT" BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE SERVICE AS A SMALLTOWN MEMBER. The Service is protected by copyright and other applicable law. Any use of the Service other than as authorized under this Agreement is prohibited.

1. Description of the Service

Smalltown is a community-focused website that enables users to discover local businesses, services, commerce, events, arts and culture, as well as to promote their own. Users can (i) create, search, and save listings; (ii) read and write reviews; and (iii) participate in online discussions.

2. Changes to The Service and this Agreement

Smalltown reserves the right to modify, discontinue, temporarily or permanently, the Service and other offerings at any time without notice. You agree that Smalltown shall not be liable to you or any third party for any modification, suspension or discontinuance of the Service (or any portion thereof). Furthermore, You understand, acknowledge, and agree that Smalltown reserves the right to make, at its sole discretion, additions, deletions, changes and any other modifications (collectively, "Amendments") to this Agreement, at any time without notice, by posting the Amendments on the Site. Any such Amendments shall be effective immediately upon posting or at such other date and/or time as may be determined by Smalltown. You can review the most current version of this Agreement at any time. You will be able to determine if any Amendments have been made since your previous use of the Service by viewing the "Last Updated" information that appears at the top of this Agreement. It is Your responsibility to review the most current version of this Agreement prior to each use of the Service, and You fully agree to be bound by all of the terms and conditions of this Agreement and its Amendments.

3. Participation Restrictions

You may not use the Service (and therefore may not submit, upload, or download, any information or materials to or from the Service) if You are (i) not able to legally form binding contracts, (ii) under the legal age to form a binding contract in Your jurisdiction (unless you are supervised by your parent or legal guardian who has agreed to this Agreement); or (iii) temporarily or indefinitely suspended from the Service. In the event that Smalltown discovers that You fit into one or more of these categories, Smalltown reserves the right to discontinue Your use of the Service and/or suspend or cancel Your account. Smalltown furthers reserves the right to refuse, cancel, or suspend permission for use of the Service to any content provider or other users at any time in Smalltown's sole discretion, including without limitation, in such instances wherein Smalltown believes that You are or might be engaged in any form of fraudulent, illegal, or otherwise improper activity regarding the Service.

4. Member Account

When registering to Smalltown, You agree to provide true, accurate, current and complete information about Yourself as prompted during the registration process. You further agree to maintain and promptly update such information to keep it true, accurate, current and complete. Upon completing the registration to the Service, You will receive a password and account designation. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password and/or account. You agree to (a) immediately notify Smalltown of any unauthorized use of your account or any other breach of security, and (b) ensure that your exit from your account at the end of each session. Smalltown cannot and will not be liable for any loss or damage arising from your failure to comply with this Section 3.

5. License

You hereby grant and agree to grant to Smalltown a non-exclusive, worldwide, royalty-free right and license to: (i) use, display (publicly or otherwise), reproduce, and distribute all content provided by You to the Service, including but not limited to, all text, images, movies, music, and related information (collectively, the "Content"), or any portion or excerpts thereof, for the purpose of performing the Service; (ii) convert the Content (or any portion or excerpts thereof) to HTML format or other format in accordance with this Section 5; and (iii) allow other users of the Service to access, use and download the Content through any technology now known or hereafter developed. Other than for the purposes described above, any further use of material will not be allowed without express permission from You. Smalltown shall have the sole right to determine the placement and location of Content on the Site and/or Service. Smalltown may, at its sole discretion, remove any Content (or any portions thereof) from the Service at any time if Smalltown believes that such material is outdated, inaccurate, infringes the intellectual property rights or any other rights of any third party, obscene, defamatory or libelous, or otherwise illegal, is no longer of interest to other users of the Service, or for any other reason, or for no reason. Smalltown shall have no obligation, and shall not be liable for any failure, to use, display, distribute, or otherwise promote all or any part of the Content, and such failure shall not be deemed a breach of this Agreement.

6. Proprietary Rights

This Agreement, the Site, the Content, and any other material on the Site ("Works") are owned and controlled by Smalltown, its affiliates, other parties that have licensed to Smalltown the right to use their material, and other users of the Site, and are protected by U.S. and international copyright and other laws. Some of the names, characters, logos, trademarks, service marks, or other images displayed on the Site ("Trademarks") are the registered and unregistered trademarks of Smalltown or other parties and are protected by trademark and other laws. You acknowledge that these rights are valid and enforceable. Except as explicitly permitted, on a case-by-case and use-by-use basis, by the respective owner of the Works and Trademarks (collectively, the "Materials"), you may not copy, modify, reproduce, republish, upload, post, display, perform, transmit, broadcast, or distribute the Site or any of the Materials available on or through the Site. Nothing contained in this Agreement shall purport to convey any ownership or other rights with respect to the Materials, and you acknowledge that by using the Site or Materials you do not acquire any ownership or other rights with respect thereto. You hereby covenant that you will not "steal" or otherwise copy, modify, distribute, or misappropriate, in whole or in part, any of the Materials contained on the Site and/or the "platform" or methods that Smalltown uses to offer and perform its service, including without limitation, via electronic means (such as "spiders" or other electronic information-gathering processes).

7. No Offensive Content or Pornography

You agree that any and all Content or other materials you cause to be listed on or otherwise transmitted to the Service shall not: (a) violate any laws; or (b) be pornographic, indecent, obscene, defamatory, libelous, offensive, or otherwise inappropriate or objectionable with respect to applicable standards, customs, or practices. If there is any dispute in any of these regards, the determination made by Smalltown shall be final, conclusive, and binding. Smalltown may remove material from the Service at any time, and reserves the right from time to time to make and revise guidelines relating to the listing of material and the content of such material using the Service.

8. Your Representations and Warranties

You covenant, represent and warrant to Smalltown that: (a) You possess the legal right and ability to enter into this Agreement; and (b) the Content You provide to Smalltown or otherwise communicate in connection with the Service: (i) is true and correct (including, without limitation, Your membership or affiliation with any group, club, or the like); (ii) does not and will not infringe on or misappropriate any copyrights, trademarks, trade secrets, patents, other intellectual property rights, privacy rights, publicity rights, or any other proprietary or personal rights of any person or entity; (iii) will not be non-local or otherwise irrelevant with respect to the community which the Site in Your geographic area is intended to serve; (iv) will not constitute multiple listings for the same business or item; and (v) shall not subject Smalltown to any costs, claims, or liabilities of any kind or nature. You agree that no fiduciary relationship is established between You and Smalltown as a result of Your membership or submission of Content or any other material to Smalltown hereunder. You understand that submission of Content is not made in confidence and shall not be held in confidence by Smalltown. You acknowledge that Smalltown has no obligations to You except as explicitly set forth herein, and that no other obligations exist or shall exist or shall be deemed to exist.

9. Fees

Accessing the Site and viewing search results is free. Fees will be charged from users that elect to convert their "card" into a Smalltown mini-website and for other services, based on Smalltown's Fees Schedule, which Smalltown may change from time to time, in its sole discretion. Smalltown reserves the right to impose additional fees for transactions and services at any time. Prior to changing the Fee Schedule or introducing any new fee structures, current members will be notified thereof via email and given the opportunity to terminate their membership. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees and applicable taxes associated with the Service in a timely manner with a valid payment method. Any amounts payable by You that remain unpaid after the due date will be subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate allowable by law from the due date until such amount is paid.

10. Disclaimer of Warranties

Smalltown does not control the Content posted via the Service. Therefore, Smalltown is not in any way responsible for, and makes no warranty or representation herein to You or to any other user with respect to, the content of the Content or information or other material posted using the Service, including without limitation, the source, accuracy, integrity, nature, or quality thereof, or that such material is compliant with any law, standard, custom or practice. You are entirely responsible for all Content that you upload, post, email, or otherwise transmit via the Service. You understand that by using the Service, you may be exposed to Content that is offensive, indecent, or otherwise objectionable. YOU AGREE THAT YOU WILL NOT HOLD SMALLTOWN RESPONSIBLE FOR OTHER USERS' ACTIONS OR INACTIONS, INCLUDING WITH RESPECT TO CONTENT AND OTHER MATERIALS AND INFORMATION THEY POST ON OR SUBMIT TO THE SERVICE. THE SERVICE AND THE MATERIALS IT CONTAINS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITH NO WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SMALLTOWN EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, REGARDING THE SECURITY, RELIABILITY, AND PERFORMANCE OF THE SERVICE, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND THE MATERIALS IT CONTAINS AT YOUR OWN DISCRETION AND RISK.

11. Limitation of Liability

YOU AGREE THAT, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT SHALL SMALLTOWN OR ANY OF ITS PRINCIPALS, OWNERS, PARENTS, SUBSIDIARIES, OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, AGENTS, CO-BRANDERS, PARTNERS, CONTRACTORS, CONSULTANTS, SUPPLIERS, CUSTOMERS, AND OTHER AFFILIATES, BE LIABLE FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COMPUTER FAILURE OR MALFUNCTION OR OTHERWISE, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, ARISING FROM OR RELATING TO USE OF OR ACCESS TO THE SERVICE AND ANY PROPOSED TRANSACTION IN CONNECTION THEREWITH (INCLUDING, WITHOUT LIMITATION, ANY INTERACTION WITH ENTITIES OR INDIVIDUALS FOUND ON OR THROUGH THE SITE), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NOTWITHSTANDING THE FOREGOING, IF SMALLTOWN IS FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR ANY THIRD PARTY SHALL BE LIMITED TO THE LESSER OF (A) THE TOTAL FEES YOU PAID SMALLTOWN IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, AND (B) FIVE HUNDRED DOLLARS (U.S. $500).

In the event that you have a dispute with one or more other users, you hereby release Smalltown, its principals, owners, parents, subsidiaries, officers, directors, shareholders, employees, representatives, agents, co-branders, partners, contractors, consultants, suppliers, customers, and other affiliates, from claims, demands and damages (actual and consequential) of every kind or nature, known or unknown, arising out of or in any way related to such disputes. If you are a California resident, you knowingly and voluntarily waive the provisions of California Civil Code Section 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor," as well as any other statute or common law principle of similar effect in any jurisdiction.

12. No Responsibility for Loss

It is Your strict responsibility to retain copies of all Content or other materials, and ensure that You absolutely keep Your original copy of any such material safe throughout the process of uploading or transmitting material to the Service and thereafter. Smalltown recommends that You back up all Your materials, as Smalltown is not responsible for doing that for You. Smalltown shall not be responsible for any loss of or damage to Content or other materials, or any copies thereof, for whatever reason and under whatever circumstances.

13. Viruses

You represent, warrant and agree that any Content or other materials You furnish to Smalltown or upload to the Service hereunder shall contain no computer code, instructions or other matter which may: (a) harm, disrupt, damage, disable, or interfere with Smalltown's use of their computer or telecommunications facilities for their purposes; or (b) harm the interest or property of other Smalltown users. Smalltown cannot warrant or represent to You or any user or other party that the Service will operate and continue to operate in a virus-free fashion, and it is Your responsibility to maintain such "firewalls", anti-virus or other protection systems which You may deem necessary or appropriate for Your protection.

14. Notification of Error or Objectionable Content

Smalltown works to maintain a healthy and vibrant community. Please alert us, through the Error and Abuse form, with respect to any content available on the site that you believe is (i) incorrect; (ii) pornographic, obscene, or offensive; or (iii) infringing your intellectual property rights; so that we can fix errors, and investigate, take action against offenders, and report illegal activity to authorities. Without limiting other remedies, we may limit, suspend, or terminate our service and user accounts, prohibit access to our website, remove hosted content, and take technical and legal steps to keep users off the Site if we think that they are creating problems, possible legal liabilities, or acting inconsistently with this Agreement or with the spirit of the Service. With respect to any intellectual property infringement complaint against Your Content, we will ask You to please contact the complaining party and attempt to resolve the dispute, and if you cannot resolve the dispute and inform us in writing of such failure, we may attempt to help resolve the dispute. Notwithstanding the foregoing, Smalltown reserves the right to remove content until dispute has been resolved.

15. Indemnity; Release

You agree to defend, indemnify, and hold Smalltown and its principals, owners, parents, subsidiaries, officers, directors, shareholders, employees, representatives, agents, co-branders, partners, contractors, consultants, suppliers, customers, and other affiliates (the "Indemnified Person(s)") harmless from and against any and all claims, liability, suit, proceeding, demand or action, and any damages, losses costs (including reasonable attorneys' fees and other legal costs), expenses, or settlement awards incurred in connection therewith, brought against any Indemnified Person(s) arising out of, or related to, (i) Your Content or any other material You upload to, or transmit through, the Service, (ii) any use thereof, (iii) Your use of the Service and any materials of other users, and/or (iv) Your breach of any term of this Agreement. To the maximum extent permitted by applicable law, you hereby release, and waive all claims against the Indemnified Persons from any and all liability for claims, damages (actual and consequential), costs and expenses (including litigation costs and attorneys' fees) of every kind and nature, arising out of or in any way connected with use of the Service. If you are a California resident, you waive your rights under California Civil Code Section 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states and nations similarly waive their rights under applicable and/or analogous laws, statutes, or regulations.

16. Termination; Withdrawal of Content

Either party may terminate this Agreement immediately upon written notice to the other party if the other party files a petition for bankruptcy, becomes insolvent, or makes an assignment for the benefit of its creditors, or a receiver is appointed for the other party or its business. You may terminate this Agreement for convenience upon thirty (30) days prior written notice. You may ask to withdraw Your Content from public display in the Site by providing Smalltown with a written request as set forth in Section 19 (Notices), and Smalltown will use commercially reasonable efforts to remove Your Content from public display on the Site promptly after receipt of Your request.

17. Privacy and Information Rights

You agree that Smalltown may collect and use information that You provide to Smalltown when You register for the Service or otherwise use the Service (including but not limited to contact and billing information) in accordance with the Privacy Policy, which is incorporated herein by reference.

18. Governing Law

This Agreement is to be construed in accordance with and governed by the internal laws of the State of California (without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of California to the rights and duties of the parties), and any disputes arising herefrom shall be determined by a court of competent jurisdiction in the Northern District of California (or such other venue which Smalltown may elect as appropriate, in its sole discretion), and You hereby submit to the personal jurisdiction thereof. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.

19. Notices

Unless provided for to the contrary in this Agreement, any and all notices or other communications or deliveries required or permitted to be made under this Agreement shall be sent (a) if to You, at the email address You provide during registration for the Service, and (b) if to Smalltown, by U.S. certified mail to Smalltown, Inc., 210 South B Street, San Mateo, CA 94401, or by email to info@smalltown.com. Contact information shall be updated as necessary to ensure that each party has current information regarding all such contacts.

20. General

You shall not, and shall not have the right to, assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any of Your rights or obligations under this Agreement without the prior written consent of Smalltown. Any purported assignment, sale, transfer, delegation or other disposition by You, except as permitted herein, shall be null and void. Smalltown shall be entitled to freely assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement and any of its licenses, rights or obligations thereof. The relationship between Smalltown and You is not one of a legal partnership relationship, but is one of independent contractors with respect to each other, and there is no affiliation to one another other than the use of the Service. The words "You" or "Your" shall also mean heirs, executors, administrators, successors, legal representatives and permitted assigns. This Agreement does not affect any right that either party would have had, or shall have, independent of the Agreement including rights relating to Content under applicable law. Neither party shall be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet or other network disturbances. Headings contained herein are for reference only and shall not be given any legal effect. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties. The failure of either party to insist upon or enforce performance or to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches or relinquishment of the first party's right to assert or rely upon the provision, right, or remedy in that or any other instance; rather the provision, right, or remedy shall be and remain in full force and effect. This Agreement sets forth the entire understanding and agreement between the parties with respect to the subject matter hereof. Should legal action arise concerning this Agreement, the prevailing party shall be entitled to recover all reasonable attorneys' fees and related costs, in addition to any other relief which may be awarded by any court or other tribunal of competent jurisdiction. In the event of any contradiction between the terms of this Agreement and the terms of the Terms of Use or Privacy Policy, the terms and conditions of this Agreement shall prevail. The provisions of Sections 5 (License), 6 (Proprietary Rights), 7 (Confidentiality), 8 (Your Representations and Warranties), 10 (Disclaimer of Warranties), 11 (Limitation of Liability), 12 (No Responsibility for Loss), 15 (Indemnity; Release), 16 (Termination; Withdrawal of Content), 18 (Governing Law), 19 (Notices), and 20 (General) shall survive any expiration or termination of this Agreement.