Webcards™, a Smalltown® Innovation

Terms of Use

Last updated: August 1, 2006

Welcome to www.smalltown.com (the "Site"), a site operated by Smalltown, Inc. ("Smalltown," "we," "us," "our"). PLEASE READ THESE TERMS AND CONDITIONS OF USE AND THE PRIVACY POLICY CAREFULLY BEFORE USING THE SITE. Please note that by visiting or using the Site you signify your assent to the following terms and conditions (the "Terms of Use"). If you do not agree to these Terms of Use, please do not use this Site. These Terms of Use are effective upon acceptance (as described above) for new users and are otherwise effective on August 1, 2006.

1. Introduction

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. Smalltown is not the vendor, seller, or licensor of any content or materials submitted by users to the Site, nor does Smalltown endorse any of them. If you intend to use the services offered by Smalltown on and through the Site (such as enhancing your card, or uploading or transmitting materials) you will be asked to register and agree to an additional agreement (your "Membership Agreement"). Without completing such registration and agreeing to the Membership Agreement, you will be limited only to searching and browsing the Site.

2. Capacity to Contract; Identity of Users

The Site is not intended for use by anyone not able to legally form binding contracts. If you are not able to legally form binding contracts, you may not use the Site, submit information about yourself to Smalltown or create or otherwise use an account. However, if you are under the legal age to form a binding contract in your jurisdiction (but you are otherwise capable of forming a binding contract), you can use the Site under the supervision of your parent or legal guardian who has agreed to these Terms of Use. Smalltown reserves the right to check, from time to time, the accuracy of your identity, and any other information you supplied. However, Smalltown cannot and does not guarantee the listed identity of any user, or the accuracy of any information listed by any user. It is your sole responsibility to conduct your own due diligence inquiry to confirm the identity or identities, and/or age or ages, of those with whom you intend to communicate or conduct any business.

3. Revisions to the Site or Terms of Use

We reserve the right at any time to change the Site, including eliminating or discontinuing any content on or feature of the Site. In addition, we may revise these Terms of Use at any time, at our sole discretion, by posting an amended Terms of Use on the Site. Any changes that we make to the Terms of Use will be effective immediately upon posting. Please check this page periodically for changes to the Terms of Use; you will be able to determine if the Terms of Use have been changed since your previous visit by viewing the "Last Updated" information that appears at the top of this page. Your use of the Site and any dispute related thereto is subject to the then-current versions of these Terms of Use.

4. Code of Conduct

While using the Site and/or the Materials (as defined below) contained on the Site, you agree to comply with all applicable laws, rules and regulations. Without limiting the foregoing, while using the Site, you agree not to:

  • Restrict or inhibit any other visitor or member from using the Site, including, without limitation, by means of "hacking" or defacing any portion of the Site;
  • Use the Site or Materials for any fraudulent or unlawful purpose;
  • Harass or advocate harassment of another person;
  • Exploit people in a sexual or violent manner;
  • Express or imply that any statements you make are endorsed by us, without our prior written consent;
  • Engage in spamming or flooding; transmit or otherwise make available in connection with the Site any viruses, worms, Trojan horses, defects, date bombs, time bombs or other items of a destructive nature; or otherwise interfere with or disrupt the operation of the Site;
  • Sell, resell, transfer, license, or exploit for any commercial purposes any use of or access to the Site or Materials;
  • Modify, adapt, sublicense, translate, sell, reverse engineer, decompile or disassemble any portion of the Site or Materials;
  • Remove any copyright, trademark or other proprietary rights notices contained in the Site or Materials;
  • "Frame" or "mirror" any part of the Site without our prior written authorization;
  • Use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, "data mine" or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents. A limited exception is provided to general purpose Internet search engines and non-commercial public archives that use such tools to gather information for the sole purpose of displaying hyperlinks to the Site, provided they each do so from a stable IP address or range of IP addresses using an easily identifiable agent and comply with our robots.txt file;
  • Interfere with or violate any other Site visitor's or member's right to privacy or other rights; solicit personal information from anyone under 18; or harvest or collect information about Site visitors or members without their express consent; or
  • Post on or through the Site a photograph of another person without that person's consent.

5. Trademarks and Copyrights

This Site and works of authorship on this Site, including but not limited to, all text, images, movies, music, and related information ("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 these Terms of Use 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).

6. Disclaimer of Warranties

Smalltown does not control the Materials posted on the Site. 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 Materials or information or other material posted on the Site, 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 understand that by using the Site, 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 ANY CONTENT AND OTHER MATERIALS AND INFORMATION THEY POST ON OR SUBMIT TO THE SITE. YOU UNDERSTAND AND AGREE THAT THE SITE AND ALL THE MATERIALS, INFORMATION, AND CONTENT ON THE SITE 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 DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, REGARDING THE SECURITY, RELIABILITY, AND PERFORMANCE OF THE SITE, 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. SMALLTOWN DOES NOT WARRANT THAT YOUR USE OF THE SITE WILL BE UNINTERRUPTED, ERROR-FREE OR SECURE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, THE MATERIALS, OR THE SERVER(S) ON WHICH THE SITE IS HOSTED ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE AND YOUR RELIANCE ON ANY MATERIALS PROVIDED THROUGH THE SITE.

7. 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 SMALLTOWN 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.

8. Indemnification:

You agree to indemnify, defend, and hold harmless Smalltown (and any of its principals, owners, parents, subsidiaries, officers, directors, shareholders, employees, representatives, agents, co-branders, partners, contractors, consultants, suppliers, customers, and other affiliates) from and against any and all claims, damages, losses, costs (including reasonable attorneys' fees) and other expenses due to, or arising out of, your breach of these Terms of Use, your activities in connection with the Site, or your violation of any laws or the rights of a third party.

9. Notification of Error or Objectionable Content

Smalltown works to maintain a healthy and vibrant community. Please alert us, though 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 Site.

10. Privacy and Information Rights

You agree that we may collect and use information that you provide to us or that is otherwise collected about you when use the Site in accordance with our Privacy Policy.

11. Global Nature of the Internet

Recognizing the global nature of the Internet, you agree to comply with all rules regarding online conduct and use of this Site. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside. Smalltown makes no representation that materials on this Site are appropriate or available for use in locations outside of the United States, and accessing them from territories where their contents are illegal is prohibited.

12. Governing Law

When accessing this Site (regardless of where you are located) you agree that these Terms of Use, our Privacy Policy, and any matters arising from or relating to use of this Site, are 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 we may elect as appropriate, in our sole discretion), and you hereby submit to the personal jurisdiction thereof.

13. Termination

You agree that we may, in our sole discretion, terminate these Terms of Use and your ability to use this Site (or any portion thereof) if you fail to comply with any term or condition hereof or for any other reason. Upon termination of these Terms of Use, you may no longer use or otherwise access the services or materials provided on this Site. The provisions of Sections 4 (Code of Conduct), 5 (Trademarks and Copyrights), 6 (Disclaimer of Warranties), 7 (Limitation of Liability), 8 (Indemnification), 12 (Governing Law), 13 (Termination), and 16 (Miscellaneous) shall survive termination of these Terms of Use.

14. Notice for California Users

Under California Civil Code Section 1789.3, California Site users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

15. Contact Us

If you have questions or concerns regarding the Terms of Use, please contact us by email or by mail at:

Smalltown, Inc.
210 South B Street
San Mateo, CA 94401

16. Miscellaneous:

If any provision of these Terms of Use are found for any reason to be unlawful, void or unenforceable, then that provision will be deemed severable herefrom and will not affect the validity and enforceability of any remaining provisions. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience and in no way defines or explains any section or provision hereof. These Terms of Use, together with any of our policies and agreements referred to herein, are the entire agreement between you and us relating to your use of the Site or the Materials, and supersedes any and all prior or contemporaneous written or oral agreements between you and us regarding the same subject matter (except other written, fully-executed contracts between you and us). Neither the course of conduct between you and us, nor trade practice, shall act to modify any provision of these Terms of Use. These Terms of Use are not assignable, transferable or sublicenseable by you except with our prior written consent.

Copyright and Intellectual Property Policy

Smalltown® respects the intellectual property of others, and we require our registered users to do so as well. Smalltown has no responsibility for content on other websites or Webcard™ listings that you may find or access when using Smalltown's products or services. Material available on or through other websites or Webcard listings may be protected by copyright and the intellectual property laws of the United States and/or other countries. The terms of use of those websites or Webcard™ listings, and not the Smalltown Terms of Service, govern your use of that material.

It is Smalltown's policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who may infringe or repeatedly infringe the copyrights or other intellectual property rights of Smalltown, Inc and/or others.