flatster of America Service Terms & Conditions

PLEASE READ CAREFULLY. THIS "FLATSTER SERVICE TERMS AND CONDITIONS" ("AGREEMENT") IS A LEGALLY BINDING AGREEMENT BETWEEN EACH USER (INCLUDING ANY SUBSCRIBER, FREE TRIAL USER, OR PURCHASER OF ANY FLATSTER SERVICE REQUIRING PAYMENT OF A FEE) ("YOU" AND"YOUR") AND FLATSTER OF AMERICA, LP ("WE," "US," OR "OUR"). THISAGREEMENT SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO YOUR SUBSCRIPTION TO THE FLATSTER SUBSCRIPTION SERVICE(S) THAT YOU HAVE SELECTED, AND YOUR USE OF AND ACCESS TO ANY SERVICE PROVIDED BY FLASTER THROUGH THE FLATSTER SUBSCRIPTION SERVICE OR THE FLATSTER APPLICATION. AS USED HEREIN, "SERVICES" INCLUDES ANY VERSION OF THE FLATSTER SUBSCRIPTION SERVICES AS WELL AS DOWNLOADS OR OTHER SERVICES PROVIDED BY FLATSTER THROUGH THE FLATSTER SUBSCRIPTION SERVICE OR THE FLATSTER APPLICATION.

This Agreement is in addition to, and not in lieu of, the flatster Enduser License Agreement to which you must also agree in order to download the flatster Application to your hard drive ("Application" means the "Software" and "Content" as defined in the flaster Enduser License Agreement. By clicking the "I accept the agreement" button you not only agree to the terms set forth herein, but you affirm your consent to the
flaster Enduser License Agreement. The flatster End User License Agreement is hereby incorporated by reference hereto and made a part of this Agreement.

1. ENROLLMENT IN THE SERVICES
In exchange for applicable fees, and subject to certain limitations as described herein you will be granted the right to use the flatster Online Service. In order to access your Service(s), you must have downloaded the Application, possess the hardware and software required by the Application, and be connected to the Internet. Any information that you supply to us will be governed by the terms and conditions of flatster’s Privacy Policy, as it may be updated from time to time by us. By subscribing to or accessing any Service, you are representing to us that you are authorized to use the credit card you submit for payment and that you reside in the United States. If you are a parent or guardian paying on behalf of a minor or other person, then you hereby agree to the terms of this Agreement and agree to take responsibility for the actions of such other person, any charges associated with that person's use of any of the Services, and that person's compliance with this Agreement. You agree to take such steps as are appropriate to ensure such compliance and will indemnify and hold flatster of America harmless from any breach of this Agreement.

2. TERM, FEES AND PAYMENTS
Applicable fees for Services may include a periodic (e.g., monthly, six months or annual) subscription fee based on the particular Service requested.

(a) Free Trial Period
By registration (email address) for a subscription to Top20free, we may offer you a onetime free trial period during which you can try out such Service(s) for free ("Free Trial Period"). The length of any such Free Trial Period, and the particular Services included may vary from time to time, and will be indicated at the time you register for your subscription. If you terminate your subscription prior to the expiration of the Free Trial
Period, you will not have any financial obligation with respect to your subscription. (b) Initial Subscription Payment By subscribe (order) one of the Services (basic or max), you will pay the applicable fees
for the Service that you select upon subscription. We will charge your credit card, on your Activation Date, the applicable fees indicated at the time you registered for the subscription. Your applicable fees will automatically be charged to the credit card you designated as the credit card to be billed for your account.

(c) Automatic Subscription Renewal
Unless you notify us of your decision to terminate your subscription, your subscription will automatically renew at the end of each subscription term. Your renewed subscription will have the same duration as the subscription being renewed (e.g. one month, six months, etc.). At the time of renewal, your credit card will be charged our then-current fees for the applicable subscription, provided that if the fee for your renewal Service has increased, we will notify you at your designated email address at least fourteen (14) days prior to renewal so that you have an opportunity to elect not to renew.

(d) Your Billing Date
Your credit card will be charged for the renewal term of your Service on your billing date ("Billing Date"), based on the type of subscription (e.g., on a particular date each month for a monthly subscription; on the six-month date for a six months subscription; on the anniversary for an annual subscription, etc.). If, however, your Activation Date is on th 29th, 30th or 31st day of a month, and your Billing Date does not exist in a particular month because there are fewer than thirty-one (31) days in the month payment is due,
your Billing Date for that particular renewal will be on the last day of the month in which your Billing Date would otherwise be.

(e) Early Termination
NOTE: Some subscriptions are provided and priced based on your commitment to subscribe for a minimum period of time, e.g. six months or twelve months. Such minimum commitment is based on your Billing Date, rather than the first or last day of a calendar month. You acknowledge that, in the event of early termination by you, we may incur costs and/or diminution in the value of the agreement that may be difficult to measure. Therefore, in the event of early termination for any reason (including voluntary termination by you or credit card expiration), the early termination fee stated at the time of registration may be charged to you as flatster of America liquidated damages resulting from your early termination.

(f) No Refunds
All fees paid and charges made prior to termination as provided herein, including any advance charge or payment for the subscription term during which you terminate your subscription, are nonrefundable. Termination of your subscription shall not relieve you of any obligations to pay accrued charges.

(g) Methods of Payment and Credit Card Terms
All payments must be made by VISA, MasterCard, American Express or Paypal. We do not accept cash, checks or any other payment form. AS BETWEEN YOU AND FLATSTER, YOU, AND NOT FLATSTER, ARE RESPONSIBLE FOR PAYING ANY AMOUNTS FOR SERVICES BILLED TO YOUR CREDIT CARD BY A THIRD PARTY WHO HAD ACCESS TO YOUR CREDIT CARD OR CREDIT CARD NUMBER, WHETHER OR NOT SUCH AMOUNTS WERE AUTHORIZED BY YOU. You agree to pay all fees and charges incurred in connection with your subscription and its password (including any applicable taxes) at the rates in effect when the charges were incurred. If flatster does not receive payment from your credit card issuer or its agent, you agree to pay all amounts due upon demand by flatster.

(h) Unauthorized Charges
Unless you notify flatster of any discrepancies or unauthorized charges within sixty (60) days after they first appear on your credit card statement, they will be deemed accepted by you for all purposes, including resolution of inquiries made by your card issuer. You release flatster from all liabilities and claims of loss resulting from any error or discrepancy that is not reported to flatster within sixty (60) days of its first appearance on an invoice or credit card statement.

(i) Late Payments
Your account may be deactivated without notice to you if payment is past due, regardless of the dollar amount. You agree to pay any outstanding balance in full within thirty (30) days of cancellation or termination of your subscription to the applicable Service(s).

(j) Taxes
You are responsible for paying any governmental taxes imposed on your use of the Service(s), including, but not limited to, sales, use or value-added taxes.

(k) Transaction Fees
flatster may impose an additional transaction fee based on transactions associated with Services, including a transaction fee applied to your periodic subscription fee. Such transaction fee will be disclosed to you prior to your agreement to the relevant transaction, such as through the order path for a subscription Service, by email notification concerning your Services and applicable fees, or in a similar, explicit manner.

(l) Modifications to Fees or Billing Terms
FLATSTER RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS SUBSCRIPTION FEES AND BILLING METHODS, INCLUDING THE ADDITION OF SUPPLEMENTAL FEES OR SEPARATE CHARGES FOR CONTENT, OR SERVICES PROVIDED BY FLATSTER, UPON EFFECTIVE NOTICE TO YOU, WHICH SHALL INCLUDE NOTICE SENT TO YOUR DESIGNATED EMAIL ADDRESS.

If any such change is unacceptable to you, you may terminate your subscription by calling customer service at (239) 540-1422. Your continued use of the Service(s) following the effective date of a change to fees or billing methods shall constitute your acceptance of such change.THIS AGREEMENT MEANS THAT YOU GIVE CONSENT TO FLATSTER TO EMAIL YOU WITH NOTICES CONCERNING A MATERIAL CHANGE IN THE TERMS OF THIS AGREEMENT, THE APPLICATION OR SERVICE(S) TO WHICH YOU HAVE SUBSCRIBED.

3. TERMINATION

(a) Termination By You
To cancel your subscription to any of the Services, please go to http://my.us.flatster.com. Once you have terminated your subscription, we will stop billing your credit card until and unless you re-subscribe to a Service. However, please note that there may be an early termination fee, as described in Section 2(e) above, based on your subscription. All fees paid and charges made prior to termination as provided herein are nonrefundable, including any advance charge or payment for the subscription term during which you
terminate your subscription. Termination of your subscription shall not relieve you of any obligations to pay accrued charges.

(b) Termination By Us
You agree that flatster, in its sole discretion, with or without prior notice, may freeze or terminate your user name, password or use of the Application and/or Service(s) (or any part thereof) for any reason, including, without limitation, if flatster believes that you have violated or acted inconsistently with the letter or spirit of this Subscription Agreement or the flatster End User License Agreement. flatster may also in its sole
discretion and at any time modify or discontinue providing the Application and/or any Service, or any part thereof, with or without notice. Further, you agree that flatster shall not be liable to you or any third-party for any interference with or termination of your access to the Application and/or any Service.

4. CUSTOMER SERVICE
You understand and agree that flatster is solely responsible for all customer service, help, billing and account issues related to your subscription. Neither your ISP nor anythird party website through which you may have accessed any Service is responsible for customer service, help, billing and account issues related to your subscription. You agree not to direct any questions, requests for assistance, or inquiries about the Application or any Service to your ISP or to any third party website through which you may have accessed the Application or any Service. For assistance, please contac Customer Service at us.support@flatster.com

5. YOUR ACCOUNT INFORMATION

(a) True and Complete
You agree to provide true, accurate, current and complete information about yourself and your billing information as prompted by the subscription process (such information being the "Account Information").

(b) Updating Your Account Information
You may update any of your Account Information, designate a different credit card to be billed, or change the applicable expiration date on your currently designated card by selecting "My Account" from the "My Account" menu page or under http://my.us.flatster.com.

(c) Our Use of Account Information
We shall treat all of your Account Information with the utmost respect for its confidential nature, and in accordance with our Privacy Policy, which is expressly incorporated herein by reference.

(d) Stolen Account Information Your Responsibility
You are solely and entirely responsible for maintaining the confidentiality of your password, and for any and all activities that occur under your account. If you believe someone has accessed any Service using your user name (email address) and password without your authorization, it is your responsibility to set up a new password by clicking on the My Account link on the Application and selecting the appropriate link.

6. INTELLECTUAL PROPERTY RIGHTS
Only you may access the Services using your user name (email address) and password. The Services available through the Application, and the Application itself, are the property of flatster or its licensors and are protected by copyright and other intellectual property laws. The Services provided through the Application may be used for your personal, non-commercial use only. You agree not to (i) reproduce, record, retransmit, distribute, disseminate, sell, rent, broadcast or circulate the Application or any content received through the Application or any Service (including music content) to any third party, (ii) exploit any such content or the Application for commercial purposes without the express prior written consent of flatster, or (iii) to share your password with any third party. You may not make any unauthorized copies of the Application or any content obtained through the Services. Because the Services are designed for
personal use, you are not allowed to use any automated system for the selection or streaming of files. You further agree to indemnify and hold harmless flatster for your failure to comply with this section. flatster and its licensors retain exclusive ownership of the Application, the Services, and all intellectual property rights associated therewith. Except as expressly provided herein, you are not granted any rights or license to patents, copyrights, trade secrets or trademarks with respect to the Services, the Application or their contents. flatster reserves all rights not expressly granted hereunder. You shall promptly notify
flatster in writing upon your discovery of any unauthorized use or infringement of the Services (or their contents) or any patent, copyright, trade secret, trademarks or other intellectual property rights of flatster or its licensors. The Application and the Services contain proprietary information that is protected by copyright laws and international treaty provisions. flatster expressly disclaims any and all responsibility or liability for any action by you that is contrary to such law(s) and reserves the right to terminate your service immediately for your failure to comply with any such local, state or federal law.

7. TECHNOLOGY LIMITATIONS AND MODIFICATIONS TO SERVICE
flatster will make reasonable efforts to keep your account and the Service(s) operational. However, certain technical difficulties or maintenance may, from time to time, result in temporary interruptions. We will make reasonable efforts to notify you at least twenty-four (24) hours in advance of any downtime that we anticipate in advance will exceed one hour. flatster also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions and features of the Application and
Service(s) with or without notice. flatster shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, malfunction, suspension, discontinuance of or interruption to or of any of the Service(s).

8. DISCLAIMER OF WARRANTY
THE APPLICATION IS PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE APPLICATION OR ITS OPERATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FLATSTER DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. FLATSTER MAKES NO WARRANTY THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, OR THAT THE APPLICATION WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES FLATSTER MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE APPLICATION OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE APPLICATION. FLATSTER MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE APPLICATION OR ANY TRANSACTIONS ENTERED INTO THROUGH THE APPLICATION.

9. LIMITATION OF LIABILITY
THE ENTIRE RISK ARISING OUT OF THE USE AND/OR PERFORMANCE OF THE SERVICE(S) REMAINS WITH YOU. IN NO EVENT SHALL FLATSTER OR ITS LICENSORS OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS SUBSCRIPTION AGREEMENT OR THE USE OF OR INABILITY TO USE ANY SERVICE, EVEN IF FLATSTER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, BUT THEY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

10. MODIFICATION OF SUBSCRIPTION AGREEMENT
flatster may modify this Subscription Agreement at any time in its sole discretion. If we make a material change to the Subscription Agreement, a "change of terms" notice will be posted and we will use reasonable efforts to notify you by email at the email address on file for your account. If any modification is unacceptable to you, you agree that your only recourse is to terminate your subscription to any of the Service(s) as provided herein. Your continued use of any Service following our posting of a change of terms notice, an email notice to you, or a new Subscription Agreement on the Application will constitute your binding acceptance of the change, until such time as you terminate your subscription.

11. INDEMNIFICATION
You agree to indemnify and hold flatster and its parents, members, subsidiaries, affiliates, service providers, syndicators, distributors, licensors, officers, directors and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to, or arising out of or related to your violation of this Agreement, or your violation of any law, regulation or third-party right.

12. GOVERNING LAW
This Agreement shall be governed by the laws of the State of Florida, United States of America, without regard to or application of any choice of law or conflict of laws provisions. You consent to the exclusive jurisdiction of the state and federal courts sitting in Fort Myers, in the State of Florida. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. If either flatster or you employs any attorneys to enforce any rights arising out of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs.

13. GENERAL
No delay or failure to take action under this Agreement shall constitute any waiver by flatster of any provision of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, it is to that extent, deemed omitted and the remaining provisions will continue in full force and effect. This Agreement will bind and inure to the benefit of each party's permitted successors and assigns. This Agreement is personal to you and may not be transferred, assigned or delegated to anyone. Any attempt by you to assign, transfer or delegate this Agreement shall be null and void. This Subscription Agreement (including all documents expressly incorporated herein by reference including but not limited to the flatster End User License Agreement constitutes the complete and exclusive agreement between flatster and you with respect to the subject matter hereof and supersedes all prior oral or written understandings, communications or agreements not specifically incorporated herein.

NOTE: flatster™ and Flatty™ are trademarks of flatster GmbH, Düsseldorf, Germany

Last modified: September 01, 2008

flatster of America LP
Cape Coral, FL