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SMARTCAL TERMS OF SERVICE

By using SmartCal you agree to the following Terms of Service. Please read them carefully

I. ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICE

SmartCal, including any advance "beta" versions ("Beta Versions") thereof, (collectively, the "Service"), is owned and operated by SmartCal, Inc., ("SmartCal") and is provided to you ("User") under the terms and conditions of this SmartCal Terms of Service (the "STS") and any operating rules or policies that may be published from time to time by SmartCal. The STS comprises the entire agreement between User and SmartCal and supersedes all prior agreements between the parties regarding the subject matter contained herein. Please report any violations of the STS to abuse@smartcal.com. By submitting your registration information, you indicate that you agree TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THE STS.

II. DESCRIPTION OF SERVICE

SmartCal is providing User with a capability to create, access, and publish an electronic calendar and list of events via the World Wide Web. SmartCal does not currently charge for the Service, but reserves the right in the future to charge a fee for use of the Service. User must: (1) provide all equipment, including computer and modem, necessary to establish a connection to the World Wide Web and (2) pay any service fees associated with such access. User understands that SmartCal provides no assistance, including any technical or customer support, to the User, and that your use of the Service is at your own risk.

In consideration for use of this Service, User agrees to: (1) provide current, complete, and accurate information about User as prompted to do so by the Service and (2) maintain and update this information as required to keep it current, complete and accurate. This information shall be referred to as registration data ("Registration Data"). If any information provided by User is untrue, inaccurate, not current or incomplete, SmartCal has the right to terminate User's account and refuse any and all current or future use of the Service. User agrees that SmartCal may disclose to third parties certain Registration Data and certain information about User's use of the Service provided that such disclosures do not include User's name, mailing address, email address, telephone or facsimile number, except as authorized by User (or any other person User may designate) or in the good faith belief that such action is reasonably necessary to comply with the law or legal process, or as set forth in Paragraph 5 (V) below.

III. MODIFICATIONS TO TERMS OF SERVICE

SmartCal may change the terms and conditions of the STS from time to time with or without notice to you. Any amendment shall be effective immediately with or without notice. Each use by you of the Service reaffirms your acceptance of, and your agreement to be bound and to abide by, the STS as amended.

IV. MODIFICATIONS TO SERVICE

SmartCal reserves the right to modify or discontinue, temporarily or permanently, the Service for any reason, at its sole discretion, with or without notice to User. User agrees that SmartCal shall not be liable to User or any third party for any modification or discontinuance of the Service.

V. PRIVACY POLICY

SmartCal considers the information that its users include on the Service to be the private correspondence of its users. SmartCal will not monitor, edit or disclose information about a User or a User's private content, except that User agrees SmartCal may do so in the good faith belief that such action is reasonably necessary: (a) to comply with the law; (b) to comply with legal process; (c) to enforce the STS, including without limitation investigating or removing any (i) material violating or potentially violating the copyright, trademark or other proprietary rights of SmartCal or any third party or (ii) chain letters, "spam," "junk mail" or unsolicited mass distributions of email; (d) to investigate and respond to claims that such contents violate the rights of third parties; (e) to protect the interests of SmartCal or others.

NOTWITHSTANDING THE ABOVE, SMARTCAL MAY FACILITATE THE TRANSMISSION OF USER INFORMATION TO ANY GROUP(S) TO WHICH THE USER SUBSCRIBES. SUBSCRIPTION TO ANY GROUP IS VOLUNTARY.

User acknowledges and agrees that SmartCal may access the Service's content and other tools of the Service as necessary to identify or resolve technical problems or to respond to service complaints. User acknowledges and agrees that certain technical processing of information is and may be required (a) to send and receive such data; (b) to perform planning and scheduling functions; (c) to conform to the technical requirements of connecting networks; (d) to conform to the technical requirements of the Service; or (e) to conform to other, similar technical requirements.

User acknowledges and agrees that SmartCal does not endorse any content created or transmitted via the Service and is not responsible or liable for any unlawful, harassing, libelous, privacy invading, abusive, threatening, harmful, vulgar, obscene, tortious or otherwise objectionable content or content that infringes or may infringe the intellectual property or other rights of another.

VI. USER ACCOUNT AND PASSWORD; SECURITY

You shall receive a Service login name and password upon completing the registration process. You are responsible for maintaining the confidentiality of your login name and password and for any and all activities that occur under your password or account. User agrees to notify SmartCal immediately of any unauthorized use of User's account or any other breach of security known to User.

VII. DISCLAIMER OF WARRANTIES

USER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT USER'S SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS.

SMARTCAL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

SMARTCAL MAKES NO WARRANTY (A) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; (B) THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; (C) AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE; OR (D) THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED.

USER UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT USER'S OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO USER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA.

SMARTCAL MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM SMARTCAL OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

VIII. LIMITATION OF LIABILITY

EVEN IF SMARTCAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SMARTCAL SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES RESULTING FROM (A) THE USE OF OR THE INABILITY TO USE THE SERVICE; (B) PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (C) ANY INFORMATION OR MATERIAL TRANSMITTED OR POSTED IN THE SERVICE OR ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR DATA RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICE; (D) UNAUTHORIZED ACCESS TO OR ALTERATION OF USER'S TRANSMISSIONS OR DATA; (E) INFRINGEMENT BY THE SERVICE OR ANY SERVICE CONTENT OF ANY PROPRIETARY RIGHTS OF USER OR ANY OTHER PARTY; OR (F) OTHER MATTER RELATING TO THE SERVICE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE RIGHTS.

USER FURTHER AGREES THAT SMARTCAL SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM INTERRUPTION, SUSPENSION OR TERMINATION OF SERVICE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, OR INADVERTENT OR ADVERTENT. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

IX. NO RESALE OF THE SERVICE

User's right to use the Service is personal to User. User agrees not to share, rent, reproduce, duplicate, copy, license or sublicense, sell or resell the Service, any content transmitted or contained in the Service, or any use of or access to the Service to any third party without SmartCal's prior written consent; provided, however, that notwithstanding the foregoing restriction User may freely reproduce, distribute and prepare derivative works from any content posted or transmitted in the Service by other Users, including without limitation calendar events information.

X. CALENDAR DATA STORAGE

SmartCal assumes no responsibility for the deletion or failure to store any data or other information included by User on the Service. SmartCal may establish an upper limit on the amount of memory and the number of calendar events a User may post through the Service.

XI. USER CONDUCT

User agrees to abide by all applicable local, state, national, and international laws and regulations in User's use of the Service, and agrees not to interfere with the use and enjoyment of the Service by other users. User agrees to be solely responsible for User's actions and the contents of User's transmissions through the Service. User agrees not to impersonate any person or entity, including but not limited to a SmartCal official, forum leader, guide or host or falsely state, or otherwise misrepresent User's affiliation with a person or entity.

User agrees: (a) to comply with all laws regarding the transmission of technical data exported from the United States through the Service; (b) not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer; (c) not to use the Service for illegal purposes; (d) not to interfere or disrupt networks connected to the Service; and (e) to comply with all regulations, policies and procedures of networks connected to the Service. User agrees not to use the Service to collect or harvest personal information, including, without limitation, financial information, about other users of the Service.

User agrees not to post, promote, advertise, sell or transmit through the Service (x) any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, hateful material or any racially, ethnically or otherwise objectionable material of any kind or nature; (y) any material or statement that User knows or should know to be false or misleading, including without limitation any false or misleading information regarding calendar events; or (z) any material that infringes on the copyrights, trademarks or other intellectual property rights of SmartCal or any other party. User further agrees not to transmit or post any material, including contest or sweepstakes material or information, that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. User shall not interfere with another User's use and enjoyment of the Service or another entity's use and enjoyment of similar services. Finally, User agrees not to post or transmit any "junk mail", "spam", "chain letters", unsolicited mass distributions of email, surveys or any commercial message misleadingly disguised as a calendar event that in fact does not contain calendar event information.

SmartCal may, at its sole discretion, immediately terminate User's access to the Service should User's conduct fail to conform with these terms and conditions of the STS. SmartCal may, but is not in any way obligated to, enforce these STS terms and conditions against any user.

XII. INDEMNIFICATION

User agrees to indemnify, defend and hold harmless SmartCal, its subsidiaries, affiliates, officers and employees from and against any claim or demand, including without limitation reasonable attorneys' fees, made by any third party due to or arising out of User's use of the Service, the violation of this STS by User, or the infringement by User of any intellectual property or other right of any person or entity.

XIII. TERMINATION

User agrees that SmartCal may, at its sole discretion, terminate User's password, account or use of the Service, as well as User's use of SmartCal's other services, for any reason, including, without limitation, if SmartCal believes (a) that User has violated or acted inconsistently with the letter or spirit of the STS or (b) that User has violated the rights of SmartCal or other Users or parties. User further agrees that SmartCal may terminate User's password, account or use of the Service if User fails to use the Service at least one time during a reasonable period of time as determined by SmartCal from time to time, which period shall not be less than three months.

User acknowledges and agrees that any termination of service under any provision of this Agreement may be effected without prior notice, and acknowledges and agrees that SmartCal may immediately delete and discard all information and files in User's account and bar any further access to such files or the Service.

XIV. NOTICE

All notices to a party shall be in writing and shall be made either via email or conventional mail. In addition, SmartCal may post notices or links to notices through the Service to inform User of changes to the STS, the Service or other matters of importance.

XV. PARTICIPATION IN PROMOTIONS OF ADVERTISERS

User's correspondence with or participation in promotions of advertisers found on the Service -- including the delivery of and the payment for goods and services, and any other terms, conditions, warranties or representations associated with such correspondence or promotions -- are solely between User and the advertiser. User agrees not to hold SmartCal liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Service.

XVI. PROPRIETARY RIGHTS TO CONTENT

User acknowledges and agrees that content, including but not limited to text, software, music, sound, photographs, video, graphics or other material contained in sponsor advertisements or other information presented to User through the Service, ("Content") is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. User is only permitted to use this Content as expressly authorized by SmartCal or the Service, and may not copy, reproduce, distribute, or create derivative works from this Content without express authorization; provided, however, that notwithstanding the foregoing restriction User may freely reproduce, distribute and prepare derivative works from any Content posted or transmitted in the Service by other Users, including without limitation calendar events information. User may not decompile, disassemble or reverse engineer any portion of the Service, including without limitation any Content.

XVII. BETA TESTER REQUIREMENTS

In consideration of SmartCal's permitting User to preview and test Beta Versions as a beta tester, User agrees (a) to make reasonable efforts to respond to any written or oral survey or questions SmartCal may present to User from time to time regarding such Beta Versions and (b) that SmartCal may contact User by telephone or email from time to time for the purpose of eliciting such response.

XVIII. GENERAL

The STS and the relationship between User and SmartCal shall be governed by the laws of the State of California without regard to its conflict of law provisions. User and SmartCal agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Santa Clara, California.

The failure of SmartCal to exercise or enforce any right or provision of the STS shall not constitute a waiver of such right or provision. If any provision of the STS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the STS remain in full force and effect.

User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the STS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

The section titles in the STS are for convenience only and have no legal or contractual effect. User may not assign the STS or assign or delegate any rights or duties hereunder without the express prior written permission of SmartCal.