Terms of Service

This Client Agreement (this “Agreement”) sets forth the terms and conditions under which Nir Benjaminy, (“2-brains.com”) may assist a client (“Client”) in the registration of Client’s Domain Name. This Agreement also sets forth the terms and conditions under which 2-brains.com may design, create and update Client’s web site (the “Web Site”), host the Web Site on an Internet Server, and license certain software to Client for Client’s use in connection with the Web Site. In consideration of the promises, covenants, and agreements set forth below, 2-brains.com and Client hereby agree as follows:

1. ACCEPTANCE OF AGREEMENT.

By signing any 2-brains.com document, order from, invoice or otherwise that states “I agree to the terms of service as posted at https://www.2-brains.com/legal”, client acknowledges that it has read, understands, and agrees to be legally bound by all of the terms and conditions of this Agreement. This Agreement will become effective when accepted by 2-brains.com, and, until such time, this Agreement constitutes an offer by Client to engage 2-brains.com services upon the terms and conditions hereinafter set forth (“Client’s Offer”). 2-brains.com reserves the right to accept or reject Client’s Offer for any reason at 2-brains.com sole discretion. 2-brains.com will notify Client of acceptance or rejection within thirty (30) days of its receipt of Client’s Offer.

2. DOMAIN NAME REGISTRATION.

A. Request for Assistance. In the event that Client desires 2-brains.com assistance in registering Client’s desired Domain Name, Client shall notify 2-brains.com in writing of Client’s request for such assistance. However, 2-brains.com reserves the right to accept or reject Client’s request for assistance in registering Client’s desired Domain Name for any reason at its sole discretion.

B. Registration. Upon its receipt and approval of Client’s written request for assistance in registering Client’s desired Domain Name (as described in Section 2.A.), 2-brains.com shall perform an availability search for Client’s desired Domain Name. If Client’s desired Domain Name is available, 2-brains.com shall reserve and register Client’s Domain Name with an ICANN-accredited registrar and disclose all registration passwords to Client. Client acknowledges and agrees that 2-brains.com cannot guarantee that Client will be assigned its desired Domain Name, even if an inquiry indicates that such Domain Name is available, and that 2-brains.com is not liable or responsible in any way for any errors, omissions or any other actions by the ICANN-accredited registrar and/or the registry administrator arising out of or related to the registration of or failure to register Client’s desired Domain Name. Client further acknowledges and agrees that 2-brains.com is not responsible for any Domain Name that has been issued to any other person or entity. Client hereby agrees to be bound by any and all terms, conditions, and policies which may be prescribed by the ICANN-accredited registrar with whom 2-brains.com registers Client’s Domain Name, and Client hereby grants to 2-brains.com the authority to bind Client to such terms and conditions to the extent necessary to complete the registration process.

C. Client’s Warranties. Client expressly confirms and warrants that Client is the owner of, or is duly authorized by the owner to use, any trademark, service mark, trade name, or name requested or allocated as Client’s Domain Name. Client further warrants that neither Client’s nor 2-brains.com’s use or registration of Client’s Domain Name constitutes infringement of any person’s or entity’s patent, copyright, trademark, service mark, trade secret, publicity, privacy, or other proprietary rights.

D. Client will be solely responsible to renew any domain registered by 2-brains.com, including timely renewal and any reoccurring fees to the ICANN and its accredited domain registrar. 2 brains will not be held responsible for loss of domain as a result of client inability to renew domain registration on time.

3. WEB SITE CREATION AND UPDATES.

A. The scope of work for the initial development of any website sold to Client is subject to one, and only one, of the following conditions:

(1) A. Scope of Work presented by 2-brains.com. This includes any website development or web services project that the Client remits payment directly to 2-brains.com. This may include a project or sale solicited directly by an 2-brains.com employee, or a project or sale that is referred to 2-brains.com and facilitated by an 2-brains.com Reseller or other third party entity. Subject to the terms and conditions of this Agreement, 2-brains.com shall create the Web Site in accordance with the specifications described in the Web Services Project Order Form and Scope of Services. Client hereby grants to 2-brains.com all rights that may be necessary to create the Web Site.

B. User Name and Password. 2-brains.com shall provide Client with a unique User Name and Password to enable Client to access the Control Panel of the Web Site. Client is solely responsible for the security and proper use of such User Names and Passwords, and Client agrees to take all reasonable steps to ensure that such User Names and Passwords are kept confidential, secure, used properly, and not disclosed to unauthorized persons. Client shall immediately notify 2-brains.com in the event that Client has any reason to believe that such User Names and Passwords have become known to unauthorized persons.

C. Content of Web Site.

(1) As used in this Agreement, “Prohibited Material” shall include, without limitation, any information or material which 2-brains.com, in its sole discretion, determines is illegal, false, fraudulent, defamatory, libelous, offensive, scandalous, or infringes upon the rights (including, but not limited to, patent, copyright, trademark, service mark, trade secret, privacy, or publicity rights) of others.

(2) 2-brains.com assumes no responsibility for the content of the Web Site. However, 2-brains.com reserves the right to refuse to incorporate any Prohibited Material into the Web Site. 2-brains.com also reserves the right to unilaterally delete, remove, or disable access to any Prohibited Material, without advance notice or liability to Client. Notwithstanding any of the foregoing, Client is solely responsible for the content of the Web Site and the accuracy of all information provided therein and agrees that 2-brains.com shall neither select the content of the Web Site nor the recipients thereof. In addition, Client is solely responsible for drafting and posting legal disclaimers, conditions, terms of use, operating policies, and the like on the Web Site. Client hereby assumes all liability for Client’s provision, operation and use of the Web Site. Client agrees that 2-brains.com shall be entitled to the maximum protection allowed by law, including, without limitation, 17 U.S.C. § 512.
Client agrees not to hold 2-brains.com liable to any material and information included in the Web Site or any misconduct arising thereof. Client acknowledges and agrees to compensate 2-brains.com for any costs arising from such misconduct or prohibited material including, but not limited to, claims, damages, legal actions and legal fees, actions taken by a 3rd party in connection with Clint’s content of web site.

(3) Client acknowledges and agrees that they are solely responsible for the content of the Web Site, for the security of the content, for periodic backup of the content, databases, software and settings associated with the Web Site, for control of user names and passwords which may grant access to the content (if any), and that any liability that may result from the display, access or misuse of the content is the sole responsibility of the Client.

D. Intellectual Property Ownership.

(1) As used in this Section 3.D. and in Section 5.C. hereof, “Intellectual Property Rights” means: rights in any patent, copyright, trademark, service mark, trade dress, and trade name; related registrations and applications for registration; trade secrets, know-how and goodwill; and any other proprietary rights.

(2) 2-brains.com shall be deemed the sole author and owner of all Common Gateway Interface (“CGI”), Hyper Text Markup Language (“HTML”) code, Java script, Perl script, Visual Basic script, ASP script, graphics and data, and their attendant Intellectual Property Rights, and all other material created or acquired by 2-brains.com and incorporated into the Web Site, or incorporated into any work embodying or derived from any portion of the Web Site. Client hereby assigns to 2-brains.com any and all rights, title and ownership interests, including any Intellectual Property Rights, which Client may have in any tangible. Client agrees that Client shall take all such further actions and shall execute, acknowledge, and deliver any and all further documentation or assignments as 2-brains.com may require to evidence. Client shall own all rights in the Web Site.

(3) Notwithstanding anything to the contrary herein, Client shall be deemed the author and owner of the following: Client’s Domain Name and its attendant Intellectual Property Rights; Client’s uniform resource locator, if any; any graphics or data provided to 2-brains.com by Client; and any content uploaded to the Web Site by Client.

E. Publicity and Branding.

(1) Client hereby grants to 2-brains.com the right to publicly perform and display the Web Site for the purposes of marketing and advertising 2-brains.com’s products and services.

(2) All websites developed or maintained by 2-brains.com under this agreement will display at 2-brains.com’s option, a “site by 2-brains.com” line or a phrase with a similar meaning. This branding option may be removed upon payment of an agreed-upon fee.

4. WEB SITE HOSTING.

A. Request for Assistance. In the event that Client desires 2-brains.com assistance in selecting a host provider for the website, client shall notify 2-brains.com in writing of client’s request for such assistance. However, 2-brains.com reserves the right to accept or reject Client’s request for assistance in hosting a desired website for any reason at its sole discretion.

B. Hosting Provider. 2-brains.com, at its discretion, will assist client in selecting a hosting service provider or host the client web site on 2-brains internet server, or affiliate server. 2-brains.com will not be held responsible for any downtime, slow down, loss of data, loss of business or damages to client business as a result of the selected hosting provider services. Client must sign and agree to the selected hosting provider Terms of Service and Violation of Terms of the specific hosting provider it’s web site is hosted in.

C. Security. Client is solely responsible for preventing password-protected pages and information within the Web Site from being accessed by unauthorized persons and from being automatically indexed and linked to search engine robots, spiders, or other similar means, and for any damage caused by such unauthorized access.

5. 2-BRAINS SOFTWARE.

A. Definitions. As used in this Section 5 and in Section 10 hereof, the following definitions shall apply:

(1) “Licensed Product” shall mean collectively the Licensed Software and Licensed Documentation (as defined below).

(2) “Licensed Software” or “Software” shall mean the software identified on Schedule A attached hereto and incorporated herein by reference, and all updates and revisions thereto which may be supplied to Client by 2-brains.com from time to time.

(3) “Licensed Documentation” shall mean all documentation, other than the Licensed Software, that is related to such Software.

B. License. Subject to the terms and conditions of this Agreement, 2-brains.com hereby grants to Client a personal, nonexclusive, nontransferable, and revocable license to access and use the Licensed Software solely for the purpose of operating and maintaining the Web Site and to use the Licensed Documentation only in support of Client’s authorized use of the Licensed Software.

C. Proprietary Rights. Client acknowledges and agrees that the Licensed Product and all associated Intellectual Property Rights are the exclusive property of 2-brains.com and constitute valuable assets of 2-brains.com. No title or ownership in the Licensed Product or any of the associated Intellectual Property Rights is transferred to Client by the license described in Section 5.B. above.

D. Protection of Licensed Product. Client shall not use the Licensed Product or any portion thereof for any purpose other than that set forth in Section 5.B. hereof.

E. Restrictions. Client shall not download or otherwise copy all or any portion of the Licensed Product. Client shall not sell, rent, license, lend, transfer, or otherwise grant rights to the Licensed Product to any other person or entity without the prior written consent of 2-brains.com. Client shall comply with all applicable laws and regulations in using the Licensed Product. Client shall not modify, translate, reverse engineer, decompile, or disassemble all or any portion of the Licensed Software.

6. ELECTRONIC COMMERCE TRANSACTIONS.

A. Client’s Online Store. With respect to Client’s online store (if any), Client confirms and warrants that 2-brains.com is not Client’s selling agent, distributor, marketer or other affiliate, and that Client shall not offer or sell any goods or services that are illegal or that infringe any rights of others. Client is solely responsible for each and all of the following: the operation and maintenance of Client’s online store and products and all contents and materials appearing within Client’s online store or related to Client’s products (including, without limitation, the accuracy and appropriateness of content and materials appearing within Client’s online store or related to Client’s products); the calculation and application of shipping and sales tax; and the purchase transactions with users of the Web Site, including, without limitation, order receipt, product delivery, payment terms, and payment collection. Client shall ensure that the content and materials appearing within Client’s online store or related to Client’s products do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. In no event shall 2-brains.com be liable for any claims, damages or losses arising out of or in connection with such transactions.

B. Vendors’ Goods and Services. Client acknowledges and agrees that 2-brains.com is not a selling agent, distributor, or marketer of any Vendor (defined as various electronic commerce stores operated by other person’s and entities). Client further acknowledges and agrees that each Vendor is solely responsible for the purchase transactions with users of Client’s Web Site, including, without limitation, order receipt, product delivery, payment terms, and payment collection. In no event shall 2-brains.com be liable for any claims, damages or losses arising out of or in connection with such transactions.

C. Merchant Account (if any). Client acknowledges and agrees that Client is solely responsible for the agreement regarding Client’s merchant account for processing credit card transactions through the Web Site between Client and any credit card processing company (“CCPC”) as Client may contract with. Client further acknowledges and agrees that 2-brains.com shall not be responsible in any way for the collection and disbursement of funds due to Client as a result of such credit card transactions. 2-brains.com will design the Web Site to facilitate an agreement between Client and any CCPC by providing a registration form which Client may complete and send to 2-brains.com with a non-refundable application fee.

D. Gateway Services (if any). 2-brains.com shall develop and provide a processing gateway that connects the shopping cart feature of the Web Site to any CCPC. The processing gateway will enable information regarding credit card transactions conducted through the Web Site to be transferred over the Internet from 2-brains.com’s Internet server to the CCPC’s Internet server. 2-brains.com will charge Client monthly and per transaction fees for administering Gateway Services as outlined in Schedule B attached.

E. Customer Information. Client is solely responsible for the security of any customer credit card numbers and related customer information Client may access as a result of conducting electronic commerce transactions through the Web Site. Client agrees to keep all such information confidential.

7. SEARCH ENGINES OPTIMIZATION

(1) 2-brains.com may offer help to client in creating a Search Engines friendly web site or improving client exiting web site design and content with an effort to comply with Search Engines guidelines and policies. 2-brains.com do not guarantee inclusion of client’s web site in search engines results. 2-brains.com does not imply that its help will improve clients web site positioning, ranking or inclusion in any search engine directory or listing service.

(2) Client acknowledges and agrees that 2-brains.com is not responsible for Search Engines excluding, banning or punishing client’s web site from any search engines results whether the cause is 2-brains.com work, recommendation or any other reason, weather directly or indirectly involves 2-brains.com services.

(3) In the case of 2-brains.com providing SEO service, client agrees to provide reasonable support when upgrading Client web site pages with provided additions or changes. This support will be provided by the CLIENT and includes, but is not limited to: Constructing web pages containing code to aid in Search Engine Optimization Services as defined by 2-brains.com.
Uploading files in a prompt manner when provided by 2-brains.com. Testing and approving changes provided by 2-brains.com.
Providing reasonable notification to Search Engine Optimizer, i.e. 2-brains.com, of any changes to the Web Site Pages initiated by Client. If programming of dynamic pages is required to integrate my changes, all changes will be performed by Client staff in a timely and complete manner. Client is responsible for providing server space and directories as defined by 2-brains.com to hold pages associated with SEO efforts. Client is responsible for providing a unique IP address for each promoted web site home page. Client shall participate in, pay for, and manage all positioning opportunities when associated with the pay-per-click Search Engines and keywords. Client shall approve and pay for all appropriate directory and Search Engine Optimization Services index submissions.

8. FEES TO 2-BRAINS.

As consideration for the services provided to Client by 2-brains.com under this Agreement, Client shall pay to 2-brains.com the amounts set forth in the Statement of Fees attached hereto as Schedule B and incorporated herein by reference, at the times specified therein or any other fee schedule / statement agreed to in writing between the client and 2-Brians.

9. TRAINING AND TECHNICAL SUPPORT.

A. Training. 2-brains.com shall provide an initial training session, with a duration and price as specified in the Scope of Work, to Client to demonstrate the Web Site and its functions, and to aid in designing a strategy to market the web-site to Client’s users. Such initial training session shall, at 2-brains.com’s sole option, take place via telephone, web pages, video cassette, CD-ROM, audio cassette, streaming media, or in person at a regional location or at Client’s offices. Client may request additional training. 2-brains.com reserve the right to accept or reject Client’s request for such additional training for any reason at its sole option. If 2-brains.com agrees to provide additional training to Client, such additional training will be charged to Client at 2-brains.com’s then current hourly rates, plus reasonable expenses.

B. Technical Support for Client Administrator. 2-brains.com shall provide Client with technical support; provided, however, that only the Primary Client Contact identified by Client in connection with Client’s acceptance of this Agreement will be allowed to use this service. A technical contact email address is posted in Client’s back end control panel for the use of reporting bugs or errors.

C. Technical Support for Web-site Users. Client is responsible for all technical support for users of Client’s web-site. Any issues related to software bugs, errors, or omissions may be forwarded to 2-brains.com through Client’s primary contact.

10. INDEMNIFICATION.

Client hereby assumes liability for and shall indemnify, defend and hold harmless 2-brains.com, and each officer, director, shareholder, employee and other agent thereof (each being an “Indemnified Party”) from and against any and all claims, demands, losses, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees) incurred by such Indemnified Party in connection with any litigation or other form of adjudicatory procedure, claim, demand, investigation, or formal or informal inquiry, or any settlement thereof, which arises directly or indirectly from or in connection with: the Web Site, its content, and/or Client’s activities in connection therewith, including, without limitation, Client’s use or provision of Prohibited Material; any compromise of Client’s security or encryption method, as described in Sections 3.B., 4.C., and 6.E. hereof; the provision of any goods or services through Client’s or any Vendor’s online store; any advertisement listed in the Local Listings section of the Web Site; any classified advertisement posted on the Web Site; or the nonfulfillment or breach of any covenant, agreement, responsibility, or obligation of Client contained in or contemplated by this Agreement. Client agrees to reimburse 2-brains.com for any losses, damages, liabilities, expenses and attorney’s fees incurred due to a 3rd party actions which arises directly or indirectly in connection with web site, its content and Client activities as set forth herein.

11. MISCELLANEOUS.

A. Term. The term of this Agreement shall commence as of the date first above written and shall continue thereafter until terminated pursuant to Section 10.B. hereof.

B. Suspension of Services; Termination.

(1) For Cause. If Client fails to abide by any material term or condition of this Agreement, 2-brains.com may, at its option, without limiting any other remedies to which it is entitled, and without oral or written notice to Client, suspend the services provided to Client hereunder and/or terminate this Agreement. Suspension of services does not relieve Client from Client’s obligation to pay any and all accrued fees, charges and costs due to 2-brains.com, and Client agrees to pay any such fees, charges and costs without deduction or set-off of any amount. Suspended service may be resumed by 2-brains.com, at 2-brains.com’s sole discretion, after 2-brains.com has received full payment of all amounts due from Client hereunder. Client shall be responsible for all costs and attorneys’ fees incurred by 2-brains.com in connection with Client’s breach of this Agreement. 2-brains.com reserves the right to use self-help to the greatest extent permitted by law, including, but not limited to, electronic remedies.

(2) Without Cause. In addition to 2-brains.com’s termination rights under Section 10.B.(1) above, either party may terminate this Agreement, without cause, and without penalty, upon sixty (60) days prior written notice to the other party.

(3) Rights Upon Termination. Upon termination of this Agreement for any reason: 2-brains.com shall retain the right to recover all accrued fees, charges and costs due and owing by Client to 2-brains.com as of the date of termination, and Client agrees to pay any such fees, charges and costs without deduction or set-off of any amount; Client shall immediately cease using the Licensed Product in any way; and Client shall immediately return the Licensed Product and all copies thereof to 2-brains.com. The provisions of Sections 5.C., 5.D., 5.E., 9, and 10.I. hereof shall survive any termination of this Agreement.

C. Client’s Acceptance of Agreement. Client represents and warrants to 2-brains.com as follows: the acceptance, delivery and performance of this Agreement have been duly authorized by all necessary corporate actions and shall not contravene the provisions of any agreement to which Client is bound; the individual accepting this Agreement on behalf of Client is duly authorized to do so; and this Agreement constitutes the legal, valid and binding obligation of Client.

D. Client Contacts. Client warrants and confirms that the Primary Client Contact and Alternate Client Contact identified by Client in connection with Client’s acceptance of this Agreement are deemed Client’s liaisons with 2-brains.com. Client agrees that any decisions made by the Primary Client Contact and the Alternate Client Contact with regard to the services to be provided hereunder are binding upon Client.

E. Taxes. Client shall be responsible for the payment and/or collection of all taxes imposed upon Client in connection with the maintenance and operation of the Web Site, including, without limitation, any sales tax imposed on the sale of Client’s products through Client’s online store and any taxes based on or in any way measured by the license granted to Client under Section 5.B. of this Agreement.

F. No Third Party Beneficiaries. Nothing contained in this Agreement, express or implied, is intended to confer upon any person or entity, other than the parties hereto and their permitted assigns, any rights or remedies of any nature whatsoever by reason of this Agreement.

G. No Legal Advice. Client acknowledges and agrees that Client has relied solely on Client’s own judgment in entering into this Agreement. Client further acknowledges and agrees that Client has been advised by 2-brains.com to seek the advice of legal counsel regarding any legal disclaimers and notices which Client may desire to post on the Web Site and the effect of the transactions contemplated hereby on Client’s tax exempt status (if Client is a tax exempt organization).

H. Downloading of Data or Files. Client expressly recognizes that 2-brains.com cannot and does not guarantee or warrant that files available for downloading through 2-brains.com’s Internet server and facilities will be free of infection, viruses, worms, Trojan horses or other means or code that manifests contaminating or destructive properties. Client shall be solely responsible for implementing sufficient procedures to satisfy Client’s particular requirements for accuracy of data input and output, and for maintaining a means external to 2-brains.com for the reconstruction of any lost data. Client also expressly recognizes that the Internet contains unedited materials, some of which may be unlawful, indecent, or offensive to Client, and access to such materials by Client is done at Client’s sole risk

I. Liability Disclaimer. THE SERVICES PROVIDED BY 2-BRAINS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTIES OF: MERCHANTABILITY; FITNESS FOR A PARTICULAR PURPOSE; EFFORT TO ACHIEVE PURPOSE; QUALITY; ACCURACY; QUIET ENJOYMENT; NON-INFRINGEMENT; AND/OR TITLE. 2-BRAINS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO CLIENT OR ANY THIRD PARTY AS TO CONTINUOUS AND UNINTERRUPTED SERVICE, SERVICE AT ANY PARTICULAR TIME, OR INTEGRITY OF DATA STORED OR TRANSMITTED VIA ANY INTERNET SERVERS OR VIA THE INTERNET. ANY EFFORTS BY 2-BRAINS TO MODIFY ITS SERVICES SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS. IN NO EVENT SHALL 2-BRAINS BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, INTERRUPTION OF BUSINESS, NOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND, WHETHER ARISING UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF 2-BRAINS HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD THEREOF. THE LIABILITY OF 2-BRAINS HEREUNDER, IF ANY, SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT PAID TO 2-BRAINS BY CLIENT FOR SPECIFIC WORK DONE HEREUNDER, OR $5,000.00, WHICHEVER IS LESSER. ANY MODIFICATIONS MADE TO THE WEB SITE BY CLIENT OR ANY THIRD PARTY VOID ANY REMAINING EXPRESS OR IMPLIED WARRANTIES.

J. Force Majeure. Notwithstanding any other provision hereof, 2-brains.com shall not be liable for delays in performing, or failing to perform, in whole or in part, any of its obligations hereunder, due to and for the duration of any event or cause beyond its control, including, without limitation, acts of God or of a public enemy, breakdowns or interruptions of computer networks, servers, or the Internet, or any systems or components thereof, breakdowns or failures of machinery or equipment, strikes, concerted action by employees of labor organizations, boycotts, riots, civil insurrection, war, national emergencies, and governmental restrictions.

K. Third Party Web Sites. Client acknowledges and agrees that 2-brains.com may provide domain name registration, web site development, web site hosting and other Internet services to other persons or entities, including those in the same or similar line of business as Client.

L. No Sub-Web Pages. Client expressly agrees that Client shall not permit any person or entity to maintain any web page within the Web Site.

M. Export Control. Client agrees that the Web Site shall comply with all export, re-export or import laws and regulations of any jurisdiction from which the Web Site is transmitted or accessed. Client further agrees that Client shall obtain written authority from all appropriate governmental bodies, if Client intends at any time to re-export any items originating from such jurisdiction to any proscribed destination.

N. Severability. If any provision in this Agreement is held invalid, void, or unenforceable by a court of competent jurisdiction, the remaining provisions shall nevertheless continue in full force and effect without being impaired or invalidated in any way. If and to the extent the provisions of this Agreement conflict with 17 U.S.C. § 512, 17 U.S.C. § 512 shall control.

O. Non-Waiver. A party’s failure to insist on compliance or enforcement of any provision of this Agreement shall not affect the validity or enforceability or constitute a waiver of any rights or remedies such party may have hereunder.

P. Choice Of Law: This Agreement shall be governed by the laws of the State of California. Any questions arising hereunder shall be construed or determined according to California law without regard to its choice of law provisions. In the event any dispute arises from the terms of this Agreement, all parties agree, after arbitration or for any pre-arbitration relief, to submit, without contest, to the jurisdiction of the United States District Court for the District of California.

Q. Assignment. The rights and obligations of Client under this Agreement are not assignable without the prior written consent of 2-brains.com. 2-brains.com may assign its interest hereunder without Client’s consent.

R. Counterparts. A hard copy of this Agreement may be executed in one or more counterparts, each of which shall be considered an original, but all of which together shall be construed as one and the same instrument.

S. Anti-Spam Policy. Client understands and agrees to a zero-tolerance anti-spam policy. Client understands and agrees that Client will not upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation via email. This includes any email originating from 2-brains.com servers, or email originating from third party servers that contains any variation of a domain name or hyperlink to a domain name that is hosted on 2-brains.com servers. Violation of this policy is grounds for immediate termination of this agreement and the permanent cancellation of any websites, domain names, email accounts, and other 2-brains.com Products hosted on 2-brains.com servers without refunds or financial concessions of any kind.

T. Mediation and Arbitration

(1) MEDIATION: In the event of any dispute, whether it sounding in tort, contract, or via statute or administrative code, related to 2-brains.com services in this agreement, both parties agree that before arbitration can be demanded by either side, the parties will mediate their dispute in good faith. In the event of a dispute, the disputing party must give written notice to the non-disputing party of the scope of the disagreement and the factual and legal basis for same. The non-disputing party shall have fourteen (14) calendar days to respond in writing.

If the matter is not resolved, the parties shall then themselves, or through legal counsel, choose a mediator to hold at least a one-half (1/2) day mediation session the cost of which the parties will be responsible for 50 50. If the parties cannot agree on a mediator within seven (7) days, then one can be appointed by a mutually agreeable mediation service, or if that cannot be agreed to, then by a court of competent jurisdiction. If the matter does not resolve, the parties may then, and only then proceed to arbitration.

If either party fails to comply with this condition precedent to arbitration, the arbitrator may mandate mediation, and shall in any event take such noncompliance into account in awarding attorney fees and costs to the prevailing party.
(2) ARBITRATION: Any controversy or claim arising out of or relating to this Agreement, including those sounding in contract, tort or via statute, and including all claims, shall be settled by final and binding arbitration, upon the request of a party, in Los Angels, California. Either the American Arbitration Association or the Judicial Arbitration Mediation Service (“JAMS”), will be agreed by the parties as the mutual arbitration service of all disputes arising under this Agreement. Each party agrees that it shall initially bear its own costs associated with the arbitration, including any filing fee to be paid by it and will further initially bear its own legal counsel expenses. However, the arbitrator thereafter as part of any award, shall award to the prevailing party a reasonable attorney fee plus reimbursement of all arbitration costs. The rules governing the chosen arbitration service’s handling of a commercial arbitration shall be followed. Except for prejudgment relief, the American Arbitration Association or JAMS will have sole jurisdiction over any dispute between the parties to this Agreement including determining the scope of the arbitrator’s authority.

The parties agree to all of the following: (1) arbitration is final and binding on the parties; (2) the parties are waiving their right to seek remedies in Court, INCLUDING THE RIGHT TO JURY TRIAL; (3) pre-arbitration discovery is generally more limited than and different from court proceedings; and (4) the arbitrators’ award is not required to include factual findings or legal reasoning and any party’s right to appeal or seek modification of rulings by the arbitrators is strictly limited by law. The judgment upon the arbitration award rendered may be entered in Los Angels, California, and thereafter enforced in any court of competent jurisdiction.

U. Entire Agreement. This Agreement and the documents or instruments referred to herein contain the entire agreement and understanding between the parties with respect to the subject matter hereof and supersede all prior oral or written agreements or understandings between the parties relating thereto. Except as otherwise provided in Paragraphs 2.A. and 2.B. of Schedule B attached hereto, this Agreement may not be modified or amended except by a written instrument duly executed by both 2-brains.com and Client.

This Agreement has been duly executed by the parties in Los Angeles, California as of the day and year first executed by Client and accepted by 2-brains.com.
SCHEDULE A

Licensed Software

Shopping Cart Software

ASP Software Components may include (but not limited to)

· Member Directory

· Classified Ads

· Business Listing (Directory)

· Calendar / Event Scheduler

· Photo Gallery Directory

· Control Panel / Virtual Office

· Domain Name Registration and interNIC Query

· Message Board System

· Lesson Plan System

· Recipe System

SCHEDULE B

Statement of Fees

1. Fees Due Upon Client’s Acceptance of Client Agreement.

A. Start-Up Fee. Client shall pay to 2-brains.com the total amount listed in the “Total Setup Price” field of the Project Order Transmittal. The initial deposit shall be paid to 2-brains.com by Client immediately upon Client’s acceptance of the Client Agreement.

B. Domain Name Registration Fee.

C. Merchant Account Application Fee. Client shall pay to 2-brains.com application fee. This fee includes the merchant account setup fee. This fee is non-refundable, regardless of whether the account application is approved or rejected.

2. Monthly Fees.

A. Web Site Hosting and Software License Fees. Client shall pay to 2-brains.com the total amount per month listed in the “Total Monthly Price” field of the Project Order Transmittal, which amount shall be due and payable by Client in advance on a monthly basis, commencing with the first month following the month during which Client accepts the Client Agreement. Such amount must be paid immediately and will be automatically billed to Client’s credit card on file on a recurring monthly interval. After the initial contract period expires, 2-brains.com reserves the right to change the monthly web site hosting and software license fee upon thirty (30) days prior written notice to Client.

3. Maintenance, support and updates fees.

Client shall pay 2-brains.com any ongoing maintenance, updates and support fees, at the schedule noted in clients bill or invoice. 2-brains.com reserves the right to refuse providing additional service to client failed to remit payment as scheduled. Overdue bill has a grace period of 8 days. Interest of 3.25% per month, compounded daily from the 9th day and thereafter apply to any overdue bill. Maintenance, support and updates fees are subject to change upon thirty (30) days prior written notice to Client.