Terms

Welcome to the User Agreement (the "Agreement") for MindMatters Technologies, Inc. through its Flagpole Software division ("Flagpole "). This Agreement describes the terms on which you may access and use our site and services.

YOUR USE OF THIS Flagpole WEB SITE AND ITS ENTIRE CONTENTS, INCLUDING BUT NOT LIMITED TO, THE TEXT, DATA, INFORMATION, MATERIALS, SOFTWARE, AND GRAPHICS CONTAINED OR PROVIDED THROUGH IT IN ANY FORM OR MEDIA AND ALL SERVICES THAT MAY BE PROVIDED IN CONJUNCTION WITH IT (ALL SUCH INFORMATION AND SERVICES, COLLECTIVELY, THE "SITE") IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS USER AGREEMENT ("AGREEMENT"). BY USING THE WEBSITE, REGISTERING WITH Flagpole, OR ACCEPTING ANY RELATED SERVICES FROM Flagpole, YOU AGREE THAT YOU: (1) HAVE READ AND UNDERSTAND, AND HAVE THE CAPACITY AND AUTHORITY TO ENTER INTO, THIS AGREEMENT; AND (2) ARE BOUND BY ALL OF ITS TERMS AND CONDITIONS.

In order to become a Flagpole user, you must read and accept all of the terms and conditions of this Agreement and the Privacy Policy located at http://www.Flagpole-software.com/privacy.asp (we will refer to you as "you" or "User" herein). In the event of any inconsistency between the Privacy Statement or Policy and this Agreement, this Agreement shall control. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits. If you do not agree to be bound by the terms of this Agreement, you may not use nor access our services or our Website located at http://www.Flagpole-software.com.

We reserve the right to modify this Agreement at any time, and without prior notice, by posting amended terms on this Site. Your continued use of the Site or the Services indicates your acceptance of the amended Agreement.

Flagpole GENERAL PROVISIONS

Description of Service

User Compliance

User shall, at its sole cost and expense, perform the following duties and obligations, all in accordance with applicable law: (a) use the Services only in full compliance with applicable law; (b) comply with all regulations, policies and procedures of any network through which User accesses and uses the Services; (c) install, operate and maintain all End User equipment as necessary to fulfill User's obligations and responsibilities hereunder; and (d) only upload records that are owned by User or for which User has legal authority to control such records, including the right to upload them to the Service.

Membership Eligibility

Use of the Site and the Services is restricted to persons at least 18 years old. If you are registering as a business entity or the point person for a business entity, by registering you hereby agree that you have the legal authority to enter into this Agreement and bind your entity with your actions. If you do not meet these restrictions or are accessing this Site from any country where material on this Site is prohibited or illegal, you do not have permission to access the Site or the Services. Using the Services or other content available on our Site, except as expressly allowed is prohibited. Those who choose to access our Site from outside the United States do so knowingly on their own initiative and voluntarily at their own risk and are responsible for compliance with local laws. Furthermore, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

Use of Service

Your use of the Service is governed by this Agreement. Except as expressly set forth in this Agreement, you may not modify, copy, distribute, disclose, retransmit, sell, publish, broadcast, or circulate this Website, or any portion of it (including, but not limited to, any download or printed copies made from it) without Flagpole's prior written consent.

You also agree not to "frame" or otherwise simulate the appearance or function of this Site. The access we provide does not include any right to collection, aggregation, copying, duplication, display or derivative use of the Site nor any use of data mining, robots, spiders, or similar data gathering and extraction tools for any purpose unless expressly permitted by Flagpole . A limited exception is provided to general search engines that use such tools to gather information for the sole purpose of displaying hyperlinks to the Website and does not include any site or service which provides listing services for classified ads or provides similar services. Use of the Website is impermissible for these purposes.

Flagpole has no obligation to update the Site or to correct any errors or omissions that might be contained in it. Flagpole may refuse service without prior notice to any user for any or no reason.

You are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur under your password or account with or without your knowledge. If anyone obtains your login and password information to another person, your account privileges may be suspended or terminated. You agree to immediately notify Flagpole of any unauthorized use of your password or account or any other breach of security. Flagpole cannot and will not be liable for any loss or damage arising from your failure to comply with this section.

Payment, Refunds, Upgrading and Downgrading Terms

1. The Service is billed in advance on an annual basis and is non-refundable. There will be no refunds or credits for partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
2. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.
3. For any upgrade or downgrade in plan level, payment will be due immediately.
4. Downgrading your Service may cause the loss of content, features, or capacity of your Account. Flagpole does not accept any liability for such loss.

Cancellation and Termination

1. You are solely responsible for properly canceling your account.
2. If you cancel the Service before the end of your current paid up year, your cancellation will take effect immediately and you will not be charged again.
3. Flagpole , in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Service, or any other Flagpole service, for any reason at any time. Such termination of the Service will result in the deactivation or deletion of your Account or your access to your Account, and the forfeiture and relinquishment of all Content in your Account. Flagpole reserves the right to refuse service to anyone for any reason at any time.

Effect of Cancellation and Termination

Upon any termination of this Agreement pursuant to this Agreement:

1. any and all accrued and unpaid Fees due to Flagpole hereunder shall be deemed immediately due and payable;
2. all rights and interests granted to User hereunder shall terminate; and
3. Flagpole may delete Users files on or after 90 days following such termination. The exercise by either Party of its rights of termination provided for in this section is a nonexclusive remedy and does not constitute a waiver by such Party of any other rights or remedies available to it under applicable law.

User Conduct

Flagpole may, but has no obligation to, remove content and accounts containing content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party's intellectual property or these Terms of Service. Verbal, physical, written or other abuse (including threats of abuse or retribution) of any Flagpole customer, employee, member, or officer will result in immediate account termination.

International Use

Recognizing the global nature of the Internet, you agree to comply with all applicable local rules including but not limited to rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

Information Provided on this Website

Users may provide information about themselves which may be visible to certain other users (see http://www.Flagpole-software.com/privacy.asp to learn more about information collected by Flagpole ). You understand that by posting materials on the Site or otherwise providing materials to Flagpole , you are granting to Flagpole a royalty-free, perpetual, irrevocable license to use this information in the course of offering the Service. You understand that all information publicly posted or privately transmitted through the Service is the sole responsibility of the person from which such content originated and that Flagpole will not be liable for any errors or omissions in any content. You understand that Flagpole cannot guarantee the identity of any other users with whom you may interact in the course of using the Service. Flagpole cannot guarantee the authenticity of any data which users may provide.

Flagpole Communications

In the course of providing you Services, Flagpole may need to communicate with you (see http://www.Flagpole-software.com/privacy.asp to learn more about communications). You agree to receive emails and other communications which are specific to your account and necessary for the normal functioning of the Service. You also agree to have your name and/or email address listed in the header of certain communications which you initiate through the Service.

Third Party Content

The Site may direct or provide you with, access to third-party content which is completely independent of the Site, including, but not limited to, other websites, programs, products or services. You understand that all postings and other materials posted on, transmitted through, or linked from the Site, are the sole responsibility of the person from whom such content originated. You are entirely responsible for all content that you post onto the Site. Flagpole may, but has no duty to, undertake any investigation of the information posted on to the Site by such posters.

Your interactions with entities found on or through the Site, and any other terms, conditions, warranties or representations associated with such dealings, are your responsibility to validate and verify all aspects of any transactions or service or product offerings. You should make whatever investigation and take whatever due diligence you feel necessary before responding to or acting on such offerings. You agree that Flagpole shall not be responsible or liable for any loss or damage of any sort incurred with respect to any of these interactions and any transactions that may occur. If there is a dispute between users, or between users and any third party, you understand and agree that Flagpole is under no obligation to become involved. You hereby release Flagpole , its affiliates, officers, employees, members, advisers, agents and successors from claims, demands and (actual and consequential) damages of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes or the Site. YOU HEREBY WAIVE ANY LAW IN YOUR JURISDICTION THAT STATES OTHERWISE.

Flagpole shall not be liable for legal transactions or other acts of users. This also applies to any violations of rights of a third party through the listing of IP.

Flagpole makes no representation that any permit or license is needed or can be obtained if such permit or license is required to export such IP rights from the US.

LIMITATIONS, INDEMNIFICATIONS AND RESTRICTIONS

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT Flagpole SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF Flagpole HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT WILL Flagpole'S TOTAL CUMULATIVE DAMAGES EXCEED US$1.

Indemnification

By accepting this Agreement, you agree to indemnify and otherwise hold harmless Flagpole , its officers, employees, members, advisers, agents, subsidiaries, affiliates and other partners from any direct, indirect, incidental, special, consequential or exemplary damages resulting from (i) your use of the Service and the Site; (ii) unauthorized access to or alteration of your communications with or through the Service or the Site; or (iii) any other matter relating to the Service or the Site. Any business transactions or decisions which may arise from the use of the Site are the sole responsibility of the users involved.

Without limitation of the terms and conditions set forth in our Privacy Policy, you understand and agree that Flagpole may disclose personally identifiable information if required to do so by law or in the good faith belief that such disclosure is reasonably necessary to comply with legal process, enforce this Agreement, or protect the rights, property, or safety of Flagpole .

Disclaimer of Warranties

YOU UNDERSTAND AND AGREE THAT THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND THAT Flagpole DOES NOT ASSUME ANY RESPONSIBILITY FOR PROMPT OR PROPER DELIVERY, OR RETENTION OF ANY USER INFORMATION OR COMMUNICATIONS BETWEEN USERS. Flagpole ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OR EXISTENCE OF ANY COMMUNICATIONS BETWEEN USERS. Flagpole 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.

Flagpole MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

NO ADVICE OR INFORMATION OBTAINED BY YOU FROM Flagpole OR THROUGH OR FROM THE SERVICE OR THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Intellectual Property

All content, database information, data and services available on, and collected as a whole through this Site are property of Flagpole , its affiliates, advertisers and its licensors and are protected by copyrights, trademarks, service marks, patents, trade secrets, and other proprietary rights and laws, in the U.S. and internationally. All rights not expressly granted herein are fully reserved by Flagpole , its affiliates, advertisers, and licensors. Flagpole 's licensors' or other third party materials, services or products referenced on this Site are common law or registered trade marks or service marks of such parties.

MISCELLANEOUS PROVISIONS

Entire Agreement

The Agreement constitutes the entire agreement between you and Flagpole and governs your use of the Service and the Site, superseding any prior agreements between you and Flagpole .

Governing Law

THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL NOT BE GOVERNED BY THE PROVISIONS OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, BUT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS. The parties agree that all disputes, claims or controversies arising out of or related to these Terms of Use shall be submitted for binding arbitration. Any arbitration shall take place in Allegheny County in the Commonwealth of Pennsylvania and shall be administered by, and pursuant to the Commercial Arbitration Rules of the American Arbitration Association before a single arbitrator. The provisions of this paragraph may be enforced in any court of competent jurisdiction. YOU HEREBY IRREVOCABLY WAIVE ALL RIGHTS YOU MAY HAVE TO A JURY TRIAL IN ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE.

General Information

Flagpole , the Flagpole logo, and other Flagpole logos and names are trademarks of MindMatters Technologies, Inc. You agree not to display or use these trademarks in any manner without Flagpole 's prior, written permission. The section titles of this Agreement are displayed for convenience only and have no legal effect. Please send any questions or comments, or report violations of the Agreement to: webmaster@Flagpole-software.com.

Severability

If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, legal, operative and enforceable to the maximum extent permitted by Applicable Law while preserving its original intent. The invalidity, illegality or unenforceability of any part of this Agreement shall not render invalid the remainder of this Agreement.

Restricted USA Government Rights

In the event: (1) any portion or derivative of, arising from or relating to, the Services is deemed to be "computer software" (as defined in FAR 2.101 or DFAR 252.227-7013), "data" (as defined in FAR 27.401), or "technical data" (as defined in DFAR 252.227-7015) (collectively, the "Services Software/Data"); and (2) the User hereunder is a USA Federal Government Authority obtaining the Services pursuant to any USA Federal Government Authority prime contract or subcontract; then the Services Software/Data shall be deemed to be delivered hereunder to User as either: (i) "Commercial computer software" (as defined in DFAR 252.227-7014 (June 1995)); (ii) a "commercial item" (as defined in FAR 2.101(a)); or (iii) "Restricted computer software" (as defined in FAR 52.227-19 (June 1987). Any use, duplication or disclosure of any kind of the Services Software/Data is subject to all terms and conditions herein, and if User is either a USA Federal Government Authority or an employee of a USA Federal Government Authority will receive no greater right than Restricted Rights (as defined in FAR 52.227-19(c)(1-2) (June 1987) or DFAR 252.227-7015(b)(2)) in any technical data arising from or relating to the Services Software/Data.