FLATHEAD U, LLC

TERMS OF USE AGREEMENT

Last modified June __, 2009

THIS IS A LEGAL AGREEMENT BETWEEN YOU AND FLATHEAD U, LLC (“FLATHEAD”). YOU SHOULD CAREFULLY READ THIS AGREEMENT, INCLUDING THE FLATHEAD U PRIVACY POLICY (THE “PRIVACY POLICY”), WHICH IS INCORPORATED INTO AND MADE A PART OF THIS AGREEMENT.

Welcome to the Flathead U, LLC Xinet video training center (the “Training Center”). The Training Center offers our customers an online service that provides Flathead’s proprietary training videos and presentations on The Xinet suite of software, Adobe products that work in conjunction with the Xinet suite of software, Quark software working in conjunction with the Xinet suite of software and other software where applicable (the “Content”).

All use of the Training Center is governed by this Agreement (including any future revisions of this Agreement). Any use of the Training Center not in accordance with this Agreement is expressly prohibited.  We reserve the right to change, modify and delete provisions of this Agreement at any time.  If we do so, we will post the changes on this page or email you a notice, indicating the effective date.  Your continued use of the Training Center after such notice constitutes your acceptance of the modified Agreement.  If you do not agree to abide by these or any future terms, you will not be permitted to use the Training Center.

  1. Conditional Use.  Use of the Training Center is restricted to individuals age 18 or older and business entities (corporations and limited liability companies), provided that any owner or representative of a business entity that is accepting the terms of this Agreement in order to use the Training Center must also be age 18 or older.  By registering for the Training Center, you are making a representation to Flathead that you are age 18 or older and (i) that you have been authorized to accept the terms of this Agreement on behalf of the customer (the entity on whose behalf you are authorized to action, in which event “you” and “your” shall refer to you and that entity) or (ii) that you intend to be personally bound to the terms of this Agreement as the customer.
  2. Grant of a Limited Use License. Subject to your agreement to and continuing compliance with this Agreement, Flathead hereby grants, and you hereby accept, a limited, non-exclusive, non-transferable license to use the Training Center and the Content for the term subscription term you have selected and solely in conjunction with your personal or your business entity’s internal use. Without limiting the foregoing, the license granted to you is subject to your compliance with the restrictions of use and obligations contained in Section 5. In addition, as further explained in Section 7, your right to use certain Content is for a limited duration or may be terminated by Flathead.
  3. Ownership.

3.1.         All rights and title in and to the Training Center, including the Content, and any and all data and statistics generated by or in connection with the Training Center are owned by Flathead or its licensors and are protected by United States and international laws. The Training Center may contain certain licensed materials, and Flathead’s licensors may enforce their rights in the event of any violation of this Agreement. For clarity, Content is licensed to you; you will not obtain any ownership interest in any of the Content.

3.2.         Without limiting any of the foregoing, you acknowledge and agree that you have no ownership or other property interest in your account with Flathead (the “Account”), or any other attributes associated with the Account. Flathead does not recognize the transfer of Accounts. You may not purchase, sell, gift or trade any Account, or offer to purchase, sell, gift or trade any Account, and any such attempt will be null and void.

3.3.         Without limiting any of the foregoing, Flathead owns, has licensed, or otherwise has rights to all of the content that appears in the Training Center, including the Content. You agree that you have no right or title in or to any such content.  You may not modify, rent, lease, loan, sell, distribute, or create derivative works based on the Training Center or the Content (either in whole or in part) unless you have been specifically authorized to do so by Flathead in a separate written agreement.  You may not use any of Flathead’s trade names, trademarks, service marks, logos, or other distinctive brand features.  You shall not remove, obscure, or alter any proprietary rights notices which may be affixed to or contained within the Training Center or the Content.

3.4.         Information and materials submitted to Flathead, such as any comments, feedback, ideas, questions, designs, data or the like regarding or relating to the Training Center or the business of Flathead (collectively, “Feedback”), will be considered non-confidential and non-proprietary with regard to you, but Flathead reserves the right to treat any such Feedback as the confidential information of Flathead. For this reason, we ask you not to send us any information or materials that you do not wish to assign to us.

  1. Establishing an Account.

4.1.         To establish an Account, you will be required to provide Flathead with certain personal information. Your failure to supply accurate information to Flathead when requested, or to update that information as it changes, may result in an interruption or cancellation of service. You agree that we may handle your personal information as described in our Privacy Policy.

4.2.         During the registration process, you will also be required to select a password that is unique to your Account. You may not share the Account or your password with anyone except as expressly permitted under this Agreement. You are responsible for maintaining the confidentiality of your password, and you will be responsible for all uses of your password, whether or not authorized by you. In the event that you become aware of or reasonably suspect any breach of security, including any loss, theft, or unauthorized disclosure of your password, you must immediately notify Flathead by emailing __________.

4.3.         You have elected a subscription package set forth on the subscription election page.  You acknowledge that unless you request otherwise in your “My Account” section of the Flathead member website by clicking on the box to not automatically renew, your subscription will automatically renew at the end of your subscription period and you will be charged for the renewal fee.

4.4.         You acknowledge that the prices set forth on the registration page are for the one, two, or three-year subscription package selected.  Your subscription may be canceled anytime but you will responsible for the subscription fee for the full subscription period selected.

  1. Limitations on Your Use of the Training Center; Your Responsibilities.

5.1.         You agree to use the Training Center only for purposes that (a) are permitted by the terms of this Agreement and (b) comply with applicable laws, regulations and generally accepted practices in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other countries).

5.2.         You agree that you will not engage in any activity that intentionally interferes with or disrupts the Training Center (or the servers and networks connected to the Training Center) and that you will not reproduce, duplicate, copy, sell, trade or resell the Training Center or any Content to any person or for any purpose, or remove any proprietary notices or labels on the Training Center.

5.3.         All users of the Training Center are expected to behave appropriately.  You agree to monitor the uses made of the Training Center and the Content by your agents, employees, contractors, advisors and others who use the Training Center or communicate with us on your behalf.

5.4.         You agree that you are solely responsible for (and that Flathead has no responsibility to you or to any third party for) any breach of your obligations under this Agreement and for the consequences of any such breach. You will indemnify and hold harmless Flathead from any damage, loss or expense (including reasonable attorneys fees) it suffers or incurs as a result of your breach.

5.5.         Flathead regularly tries to improve the Training Center and the Content. You acknowledge and agree that the form and nature of the Training Center and Content may change periodically without prior notice to you.  You therefore acknowledge and agree that, as part of this continuing process of improvement, Flathead may stop (permanently or temporarily) providing the Training Center (or any features within the Training Center) to you or to all users generally at Flathead’s sole discretion, without prior notice.  (If this means you are denied services you’ve paid for, we will provide appropriate credits or refunds.)

5.6.         You acknowledge that the Training Center, or any feature or part thereof, may not be available in all languages or in all countries and Flathead makes no representation that the Training Center, or any feature or part thereof, is appropriate or available for use in any particular location. To the extent you choose to access and use the Training Center, you do so at your own initiative and are responsible for compliance with any applicable laws, including, but not limited to, any applicable local laws.

  1. Privacy and Your Information.

6.1.         Flathead’s privacy policies are described in our Privacy Policy, which explains how Flathead treats personal information entrusted to it.  The Training Center is designed so that you are generally not required (and are actively discouraged) from submitting identifiable information about individuals, so the amount of such data in our possession is minimal (generally limited to certain identifiable information of the personnel who subscribe to the Training Center on a user’s behalf).

6.2.         We have adopted reasonable methods to prevent unauthorized access to the Training Center and the Content and other information you submit to us. However, these measures depend on your using the mechanisms we provide to maintain security, including your responsibility to maintain the confidentiality of your Flathead passwords. Further, you recognize that no online system is foolproof and therefore you waive and release us from any claim for loss or damage caused by a breach of security, theft or misuse of your proprietary information stored or access on the Training Center, loss or injury to individuals attributed to a security breach or identity theft, or similar problems, unless caused by our gross negligence or willful misconduct.

  1. Terminating Your Account.

7.1.         The terms of this Agreement will continue to apply until terminated by either you or Flathead as set forth below.

7.2.         You may cancel your membership by selecting “Cancel Membership” under the “My Account” section of the Flathead member website. In the event that you terminate or breach this Agreement, you will forfeit your right to any and all payments you may have made for pre-purchased access to the Training Center. You agree and acknowledge that you are not entitled to any refund for any amounts which were pre-paid on behalf of the Account prior to any termination of your Account. However, if you voluntarily cancel your membership, the termination of your Account will not occur until the end of the subscription period for which you have paid, and you will be able to continue using the Training Center until such time.

7.3.         Flathead may at any time, terminate this Agreement with you if:

(a) you have breached any provision of this Agreement (or have acted in manner which clearly shows that you do not intend to, or are unable to, comply with the provisions of this Agreement); or

(b) Flathead is required to do so by law (for example, where the provision of Training Center or the Content is, or becomes, unlawful); or

(c) Flathead elects, in its sole discretion, to cease operating the Training Center and providing the Content.

7.4.         When these Terms and our agreement come to an end, all of the legal rights, obligations and liabilities that you and Flathead have benefited from, been subject to (or which have accrued over time) or which are expressed to continue indefinitely, shall be unaffected by this cessation, and the provisions of Sections 8-14 below shall continue to apply to such rights, obligations and liabilities indefinitely.

  1. Exclusion of Warranties.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE TRAINING CENTER IS AT YOUR SOLE RISK AND THAT THE TRAINING CENTER AND CONTENT ARE PROVIDED “AS IS” AND “AS AVAILABLE.” FLATHEAD EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

IN PARTICULAR, FLATHEAD AND ITS AFFILIATES, SUPPLIERS AND LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT:  (A) YOUR USE OF THE TRAINING CENTER OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, (B) ANY INFORMATION OBTAINED BY YOU FROM THE CONTENT OR AS A RESULT OF YOUR USE OF THE TRAINING CENTER WILL BE ACCURATE OR RELIABLE, OR (C) DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE TRAINING CENTER WILL BE CORRECTED.

ANY MATERIAL OR INFORMATION STREAMED, DISPLAYED OR OTHERWISE OBTAINED THROUGH THE TRAINING CENTER IS AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE USE OF SUCH MATERIAL.

Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of certain liabilities. Accordingly, only the limitations which are lawful in your jurisdiction will apply to you, and our liability (see Section 9 below) will be limited to the maximum extent permitted by law.

  1. Limitation of Liability. YOU UNDERSTAND AND AGREE THAT FLATHEAD AND ITS AFFILIATES AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR:

(A) ANY INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. THIS SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFITS GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA, COSTS TO PROCURE SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSS; OR

(B) ANY LOSS OR DAMAGE INCURRED BY YOU A RESULT OF: (I) YOUR RELYING ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY CONTENT ACQUIRED FROM US OR OUR BUSINESS PARTNERS; (II) ANY CHANGES WHICH FLATHEAD MAKES TO THE TRAINING CENTER, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE TRAINING CENTER (OR ANY FEATURES WITHIN THE TRAINING CENTER); (III) YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.

  1. Force Majeure. Without limitation to any other term of this Agreement, Flathead will not be liable for any delay or failure to perform resulting from causes outside the reasonable control of Flathead, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, or shortages of transportation facilities, fuel, energy, labor or materials.
  2. Equitable Remedies. In the event that you breach this Agreement, you hereby agree that Flathead would be irreparably damaged if this Agreement were not specifically enforced, and therefore you agree that Flathead will be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this Agreement, in addition to such other remedies as Flathead may otherwise have available to it under applicable laws. In the event any litigation is brought by either party in connection with this Agreement, the prevailing party in such litigation will be entitled to recover from the other party all the costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
  3. Copyright Policy.  Flathead respects the intellectual property rights of others. If you believe that any infringing material is offered through the Training Center, please contact us and provide us with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located in the Training Center; your address, telephone number, and email address; a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

The Company’s designated agent to receive notification of claimed infringement is Chip Wry, email: cwry@mbbp.com, phone: 781.622.5930. This contact information is only for notices relating to copyright infringement; all other notices, comments, requests for support, or other communications should be sent to the contacts stated in “Communications” below.

  1. Governing Law.  Except as expressly provided otherwise, this Agreement will be is governed by, and will be construed under, the laws of the Commonwealth of Massachusetts, without regard to conflict of laws provisions.
  2. Miscellaneous. If any provision of this Agreement is unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from this Agreement and will not affect the validity and enforceability of any remaining provisions. This Agreement (including the Privacy Policy, which is incorporated into and a part of this Agreement) is the complete and exclusive statement of the agreement between you and Flathead concerning its subject matter, and this Agreement supersedes any prior or contemporaneous agreement, either oral or written, and any other communications with regard thereto between you and Flathead. This Agreement may only be modified as set forth herein. The section headings used herein are for reference only and will not be read to have any legal effect. Whenever used in this Agreement, the word “including” will be deemed to mean “including, without limitation.”  You agree that Flathead may provide you with notices, including those regarding changes to the terms of this Agreement, by email or postings on the Training Center.  You agree that if Flathead does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which Flathead has the benefit of under any applicable law), this will not be deemed a waiver of Flathead’s rights and that those rights or remedies will still be available to Flathead.
  3. Communications.  If you wish to communicate with us about this Agreement, your experience with the Training Center, or for other reasons, please contact us by phone, mail or email as follows:

Tel: (203) 227-1811

Address: Attn: Support, Flathead U

Suite 201, 136 Main Street  Westport, CT 06880

email: info@flatheadu.com

I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS OF USE AGREEMENT AND AGREE THAT MY USE OF THE TRAINING CENTER IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.