Introduction; Your Agreement to these Terms of Use.

Welcome to the MoveSmart.org (“MoveSmart”) web site, www.MoveSmart.org (the “MoveSmart Site”). The following Terms of Use for the MoveSmart Site is a legal contract between you, an individual user or a single entity (collectively or individually “Users”), and MoveSmart regarding your use of the MoveSmart Site. Together, Users and MoveSmart are referred to herein individually as “Party” or collectively as the “Parties”. When using the MoveSmart Site, you will be subject to any additional posted guidelines or rules applicable to specific services, and features which may be posted from time to time (the “Guidelines”). The term “Guidelines” does not include MoveSmart’s privacy policy. All Guidelines are hereby incorporated by reference into the Terms.

BEFORE USING THE MOVESMART SITE, PLEASE READ CAREFULLY THE FOLLOWING TERMS OF USE. BY REGISTERING FOR AND/OR ACCESSING, BROWSING, AND USING THE MOVESMART SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING THE GUIDELINES, AND ANY FUTURE MODIFICATIONS (COLLECTIVELY, THE “TERMS”). IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE MOVESMART SITE.

1. Eligibility. In order to use the MoveSmart Site, you must be the age of majority in your jurisdiction (18 years of age or older in most states, 19 or older in Nebraska and Alabama) and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in these Terms and to abide by and comply with these Terms. You represent that you meet the eligibility requirements in this Section. In any case, you affirm that you are over the age of 13, as the MoveSmart Site is not intended for children under 13. If you are using or opening an account on the MoveSmart Site on behalf of a company, entity, or organization (collectively “Subscribing Organization”), then you represent and warrant that you: are an authorized representative of that Subscribing Organization with the authority to bind such organization to these Terms; and agree to be bound by these Terms on behalf of such Subscribing Organization.

2. Modification of the Terms. MoveSmart reserves the right, at our discretion, to change, modify, add, or remove portions of these Terms at any time without notice to you. All changes shall be effective immediately. In the event of a material change, we will notify you via e-mail according to your account preferences. Please check these Terms periodically for changes. Your continued use of the MoveSmart Site after the posting of changes constitutes your binding acceptance of such changes.

3. MoveSmart Site Access. MoveSmart grants you permission to use the MoveSmart Site as set forth in these Terms, provided that and for so long as (i) you use the MoveSmart Site solely for your personal, private, noncommercial use; (ii) except as expressly permitted in these Terms, you do not download, reproduce, redistribute, retransmit, publish, resell, distribute, publicly display or otherwise exploit any portion of the MoveSmart Site in any medium without MoveSmart’s prior written authorization; (iii) you do not alter or modify any part of the MoveSmart Site other than as may be reasonably necessary to use the MoveSmart Site for its intended purposes; (iv) you do not engage in any of the prohibited uses described below; and (v) you otherwise fully comply with these Terms. The MoveSmart Site is controlled and offered by MoveSmart from its facilities in the United States of America. MoveSmart make no representations that the MoveSmart Site is appropriate or available for use in other locations. If you are accessing or using the MoveSmart Site from other jurisdictions, you do so at their own risk and you are responsible for compliance with local law.

4. Ownership; Proprietary Rights. As between the Parties, the MoveSmart Site including the content, visual interfaces, interactive features, information, graphics, design, compilation, products, services, and all other elements of the MoveSmart Site that are provided by MoveSmart (“MoveSmart Materials”) are owned and operated by MoveSmart. MoveSmart Materials do not include User Submissions (defined below) or any Non-MoveSmart Content (as defined below). All MoveSmart Materials are licensed under the Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License.

5. User Submissions.

5.a General. The MoveSmart Site may now or in the future permit the submission and posting or linking of media, text, audio and video recordings, photos, commentary or any other content submitted by you and other users (“User Submissions”), and the hosting, sharing, and/or publishing of such User Submissions. User Submissions are displayed for informational purposes only and are not controlled by MoveSmart. MoveSmart makes no representations that it will publish or use your User Submissions in any way and may or may not use your User Submissions in its sole discretion. You understand that whether or not such User Submissions are published, MoveSmart does not guarantee any confidentiality with respect to any User Submissions.

5.b Grant of Rights. By submitting User Submissions to MoveSmart, you hereby grant MoveSmart and its affiliates a worldwide, non-exclusive, fully paid-up, royalty-free, sublicenseable, and transferable license to use, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit your User Submissions in connection with the MoveSmart Site and MoveSmart’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the MoveSmart Site (and derivative works thereof) in any media formats and through any media channels now known or hereafter discovered. You grant MoveSmart and its affiliates and sublicensees the right to use the name that you submit in connection with such User Submission if they choose. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Submissions. You also hereby grant to each user of the MoveSmart Site a non-exclusive license to access your User Submissions through the MoveSmart Site, and to use, reproduce, distribute, prepare derivative works of, display, and perform such User Submissions as permitted by the functionality of the MoveSmart Site and these Terms.

5.c Your Representations and Warranties Regarding User Submissions. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize MoveSmart to use, all patent, trademark, copyright, or other proprietary rights in and to any and all User Submissions to enable inclusion and use of User Submissions in the manner contemplated by MoveSmart and these Terms, and to grant the rights and license set forth in this Section, and (ii) your User Submissions, MoveSmart’s use of such User Submissions pursuant to these Terms, and MoveSmart’s exercise of the license rights set forth in this Section, do not and will not: (a) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (b) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (c) violate any applicable law or regulation.

5.d Prohibited Uses of User Submissions. In connection with your User Submissions, you further agree that you will not publish, post, submit, transmit through or otherwise make available to the MoveSmart Site: (i) any falsehoods or misrepresentations that could damage MoveSmart or any third party; (iii) any material which is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, racially or ethnically offensive or otherwise objectionable, or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iv) advertisements or solicitations of business, products, or services; or (v) any material that would be harmful to minors in any manner.

6. Non-MoveSmart Content Disclaimer. You understand that when using the MoveSmart Site you will be exposed to User Submissions and other third party content (together, the “Non-MoveSmart Content”) from a variety of sources, and that you may be exposed to Non-MoveSmart Content that is inaccurate, offensive, indecent, or otherwise objectionable. MoveSmart does not endorse any Non-MoveSmart Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will MoveSmart be liable in any way for or in connection with the Non-MoveSmart Content, including, but not limited to, for any inaccuracies, errors or omissions in any Non-MoveSmart Content, any intellectual property infringement with regard to any Non-MoveSmart Content, or for any loss or damage of any kind incurred as a result of the use of any Non-MoveSmart Content posted, emailed or otherwise displayed or transmitted through the MoveSmart Site.

7. Non-Monitoring of Users and Non-MoveSmart Content. You understand that all Non-MoveSmart Content is the sole responsibility of the User who submitted such Non-MoveSmart Content. This means that you, and not MoveSmart, are entirely responsible for all User Submissions that you upload, post, e-mail, transmit or otherwise make available through the MoveSmart Site. MoveSmart does not control the Non-MoveSmart Content posted by Users or otherwise made available by other persons and does not have any obligation to monitor such Non-MoveSmart Content for any purpose. If at any time, MoveSmart chooses, in its sole discretion, to monitor the Non-MoveSmart Content, MoveSmart nonetheless assumes no responsibility for the Non-MoveSmart Content, no obligation to modify or remove any inappropriate Non-MoveSmart Content, and no responsibility for the conduct of the user submitting any such Non-MoveSmart Content. You agree that you must evaluate, and bear all risks associated with the use of any User Submissions or other Non-MoveSmart Content, including any reliance on the accuracy, completeness, usefulness, or legality of such User Submission or other Non-MoveSmart Content.

8. Removal of Non-MoveSmart Content. MoveSmart and its designees shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any Non-MoveSmart Content that is available on the MoveSmart Site in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.

9. Prohibited Uses of the MoveSmart Site.

9.a As a condition of your use of the MoveSmart Site, you hereby represent and warrant that you will not use the MoveSmart Site for any purpose that is unlawful or prohibited (including without limitation, the prohibitions in this Section) by these Terms. Without limiting the foregoing, you agree not to use the MoveSmart site in any way that would violate or work against any federal, state, county, or municipal fair housing ordinances.

9.b Any use by you of any of the MoveSmart Materials and MoveSmart Site other than as permitted by these Terms is strictly prohibited.

9.c You agree not to use the MoveSmart Site if you do not meet the eligibility requirements described in Section 1 above.

9.d You agree not to defame, harass, abuse, threaten, stalk or defraud users of the MoveSmart Site, or collect, or attempt to collect, personal information about users or third parties without their consent.

9.e You agree not to intentionally interfere with or damage, impair or disable the operation of the MoveSmart Site or any user’s enjoyment of it, by any means, including uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code.

9.f You agree not to remove, circumvent, disable, damage or otherwise interfere with any security-related features of the MoveSmart Site, features that prevent or restrict the use or copying of any part of the MoveSmart Site, or features that enforce limitations on the use of the MoveSmart Site.

9.g You agree not to attempt to gain unauthorized access to the MoveSmart Site, or any part of it, other accounts, computer systems or networks connected to the MoveSmart Site, or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the MoveSmart Site or any activities conducted through the MoveSmart Site.

9.h You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the MoveSmart Site.

9.i You agree not to deep-link to the MoveSmart Site and will promptly remove any links that MoveSmart finds objectionable in its sole discretion.

9.j You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the MoveSmart Site. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.

9.k You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the MoveSmart Site or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

9.l You agree not to impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.

10. Account Information. In order to access some features of the MoveSmart Site, you will have to create an account. You represent and warrant that the information you provide to MoveSmart upon registration and, at all other times, will be true, accurate, current, and complete. You also represent and warrant that you will ensure that this information is kept accurate and up-to-date at all times. You acknowledge, consent and agree that MoveSmart may access, preserve and disclose your account information and User Submission if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to claim that any User Submission violates the rights of third parties; (d) provide certain customized features of the MoveSmart Site to you, if any, or respond if you contact MoveSmart for any reason; or (e) protect the rights, property or personal safety of MoveSmart, the users and the public.

11. Password. If you register you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your account ID or password), you shall immediately notify MoveSmart. You may be liable for the losses incurred by MoveSmart or others due to any unauthorized use of your account.

12. Dealings with Advertisers. Your correspondence or business dealings with, or participation in promotions of, advertisers found on or through the MoveSmart Site are solely between you and such advertiser. YOU AGREE THAT MOVESMART WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON THE MOVESMART SITE.

13. Links and Third Party Websites. MoveSmart or third parties may provide links on the MoveSmart Site to other sites including the content therein (“Reference Sites”). MoveSmart has no control over such Reference Sites or content, and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of Reference Sites or content linked to by the MoveSmart Site. MoveSmart provides links to you only as a convenience, and the inclusion of any link on the MoveSmart Site does not imply our affiliation, endorsement, or adoption of the linked site or any information therein. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK. Our terms and policies do not govern your use of any site other than the MoveSmart Site. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.

14. Availability of Service. MoveSmart may make changes to or discontinue any of the media, web communities, products, or services available within the MoveSmart Site at any time, and without notice. The media, products, or services on the MoveSmart Site may be out of date, and MoveSmart makes no commitment to update these materials on the MoveSmart Site.

15. User Disagreements. You are solely responsible for your involvement with other users of the MoveSmart Site. MoveSmart reserves the right, but has no obligation, to monitor disagreements between you and other users. MOVESMART DISCLAIMS ALL LIABILITY RELATED TO ANY USER DISAGREEMENT.

16. Terms of Use Violations; Termination.

16.a MoveSmart. You agree that MoveSmart, in its sole discretion and for any or no reason, may terminate any account (or any part thereof) you may have through the MoveSmart Site or your use of the MoveSmart Site, and remove and discard all or any part of your account or any User Submission, at any time. You agree that your access to the MoveSmart Site or any account you may have or portion thereof may be terminated without prior notice, and you agree that MoveSmart shall not be liable to you or any third-party for any such termination. These remedies are in addition to any other remedies MoveSmart may have at law or in equity.

16.b User. If you are dissatisfied with the MoveSmart Site, please let us know at info@movesmart.org. Your input is valuable to us. Your only remedy with respect to any dissatisfaction with (i) the MoveSmart Site, (ii) any term of these Terms, (iii) any policy or practice of MoveSmart in operating the MoveSmart Site, or (iv) any content or information transmitted through the MoveSmart Site, is to terminate these Terms and your account. You may terminate these Terms at any time by closing your account and discontinuing your use of any and all parts of the MoveSmart Site and providing notice of termination at info@movesmart.org.

17. Indemnification; Hold Harmless. You agree to indemnify and hold harmless MoveSmart, and its parent, subsidiaries, affiliates or any related companies (including those which share substantially common ownership), and the officers, directors, employees, agents and representatives of any of them from any and all claims, losses, obligations, damages, liabilities, costs, debt, and expenses (including attorney’s fees) arising out of (i) your use or misuse of the MoveSmart Site; (ii) your User Submissions, including MoveSmart’s use, display or other exercise of its license rights granted herein with respect to your User Submissions; (iii) your violation of these Terms; (iv) your violation of the rights of any other person or entity, including claims that any User Submission infringes or violates any third party intellectual property rights; (v) your breach of the foregoing representations, warranties, and covenants; and (vi) any unauthorized use of your account not caused by MoveSmart. MoveSmart reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of MoveSmart. MoveSmart will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.

18. Disclaimers; No Warranties.

18.a Acknowledgement. YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION 18, THE TERM MOVESMART INCLUDES MOVESMART’S OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AFFILIATES, AND SUBCONTRACTORS.

18.b No warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, MOVESMART DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MOVESMART OR THROUGH THE MOVESMART SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

18.c “As is” and “As available” and “With All Faults.” YOU EXPRESSLY AGREE THAT THE USE OF THE MOVESMART SITE IS AT YOUR SOLE RISK. THE MOVESMART SITE, USER SUBMISSIONS, NON-MOVESMART CONTENT, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE MOVESMART SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.

18.d Website Operation and Non-MoveSmart Content. MOVESMART DOES NOT WARRANT THAT THE MOVESMART MATERIALS, USER SUBMISSIONS, NON-MOVESMART CONTENT, MOVESMART SITE, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE MOVESMART SITE OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

18.e Accuracy. MOVESMART DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MOVESMART SITE OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

18.f Harm to Your Computer. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIALS, OR DATA THROUGH THE MOVESMART SITE (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.

19. Limitation of Liability and Damages.

19.a Limitation of Liability. UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL MOVESMART OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR THE INABILITY TO USE THE MOVESMART MATERIALS AND USER SUBMISSIONS ON THE MOVESMART SITE OR ANY REFERENCE SITES, THE MOVESMART SITE ITSELF, OR ANY OTHER INTERACTIONS WITH MOVESMART, EVEN IF MOVESMART OR A MOVESMART AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

19.b Limitation of Damages. IN NO EVENT SHALL MOVESMART OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE MOVESMART SITE (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE LESSER OF (i) THE FEES PAID BY YOU TO MOVESMART UNDER THESE TERMS, OR (ii) ONE HUNDRED DOLLARS.

19.c Reference Sites. THESE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN MOVESMART AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE MOVESMART SITE OR RECEIVED BY YOU THROUGH ANY REFERENCE SITES.

20. Limitations by Applicable Law; Basis of the Bargain.

20.a Limitations by Applicable Law. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THESE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION IN WHICH YOU ARE LOCATED.

20.b Basis of the Bargain. YOU ACKNOWLEDGE AND AGREE THAT MOVESMART HAS OFFERED ITS PRODUCTS AND SERVICES AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND MOVESMART, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND MOVESMART. YOU ACKNOWLEDGE AND AGREE THAT MOVESMART WOULD NOT BE ABLE TO PROVIDE THE MOVESMART SITE TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

21. Digital Millennium Copyright Act Compliance. If you are a copyright owner or an agent thereof, and believe that any User Submission or other Non-MoveSmart Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C § 512(c)(3) for further detail):

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works on the MoveSmart Site are covered by a single notification, a representative list of such works from the MoveSmart Site;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit MoveSmart to locate the material;
• Information reasonably sufficient to permit MoveSmart to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
• A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

MoveSmart’s designated Copyright Agent to receive notifications of claimed infringement is:
Justin Massa
email: info@movesmart.org
telephone: 312-436-1482
fax: 312-630-1127

22. Miscellaneous.

22.a Notice. MoveSmart may provide you with notices, including those regarding changes to these Terms, by email, regular mail, or postings on the MoveSmart Site. If Notice is by e-mail or mail, it will be provided to the e-mail or regular mailing address provided by you with your account information and it is your responsibility to update such account information for any changes. Notice to you will be deemed given twenty-four hours after email is sent, unless MoveSmart is notified that the email address is invalid, and if through postal mail, three days after the date of mailing. You may provide MoveSmart with notices only by mail to the address indicated in subsection (l) below.

22.b Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.

22.c Jurisdiction. You agree that any action at law or in equity arising out of or relating to these Terms or the MoveSmart Site shall be filed only in the state or federal courts in and for Cook County, Illinois and you hereby consent and submit to the personal and exclusive jurisdiction and venue of such courts for the purposes of litigating any such action.

22.d Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of MoveSmart to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.

22.e Severability. If any provision of these Terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

22.f Assignment. The Terms and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by MoveSmart without restriction. Any assignment attempted to be made in violation of these Terms shall be void.

22.g Independent Contractor. You agree that no joint venture, partnership, employment, or agency relationship exists between you and MoveSmart as a result of these Terms or use of the MoveSmart Site. You further acknowledge that by submitting User Submissions or other Non-MoveSmart Content, no confidential, fiduciary, contractually implied or other relationship is created between you and MoveSmart other than pursuant to these Terms.

22.h Survival. Sections 4, 5, 15, 17, 18, 19, 20, 21 and 22 will survive any termination of these Terms or your account whether by you or MoveSmart.

22.i Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.

22.j Entire Agreement. This is the entire agreement between you and MoveSmart relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. These Terms shall not be modified except in a writing, signed by both parties, or by a change to these Terms or Guidelines made by MoveSmart as set forth in Section 2 above.

22.k Claims. YOU AGREE THAT ANY CAUSE OF ACTION BROUGHT BY YOU ARISING OUT OF OR RELATED TO THE MOVESMART SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

22.l Disclosures. The services hereunder are offered by MoveSmart, located at 100 N LaSalle St, Ste 600, Chicago, IL 60602, email: info@movesmart.org, telephone: 312-436-1482. If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.

last updated May 13, 2009