(a) This Agreement between you ("Customer") and us ("XMATE") starts from when you accessed and used this website and shall remain in full force and effect unless terminated as provided for in either Subsection 1(b) or 1(c) below. (b) Either party may terminate this Agreement anytime by providing written notice. The terminating party shall have no liability to the other party as a result of such termination. (c) Notwithstanding the provisions of Subsection 1(b), XMATE may, at its option, terminate this Agreement or any other service to Customer without prior communication to Customer for a material breach of this Agreement, including, without limitation, a violation of any provision of Section 6 below, provided, however, that XMATE will still be able to exercise all of its other rights and remedies under this Agreement at law and in equity. (d) Upon termination of this Agreement, for any reason, Customer shall no longer have access to its account created hereunder and any data contained therein shall no longer be available to Customer. (e) This Agreement may be modified in any way by XMATE upon posting any such modification on xmate.co m.au . Customer confirms acceptance of any such modifications by not closing its account with and/or by continuing to use xmate.co m.au . (f) Customer agrees to abide by the terms of xmate.com.au 's Terms of Use agreement. Any conflict between such Terms of Use and this Agreement shall be resolved in favor of this Agreement. 2 CHARGES AND PAYMENT (a) Customer agrees to pay all fees or charges to Customer's account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is incurred. Customer agrees to pay all costs (including reasonable lawyer fees and disbursements), if any, incurred by XMATE in collecting overdue fees from Customer, and to pay a late charge on any overdue fees at a rate equal to the lesser of 1% per month or the maximum rate allowed under applicable law. Customer shall bear sole responsibility for the payment of any taxes imposed on Customer's use of xmate.co m.au by the national and/or local jurisdictions of and within the country of Customer's use. (b) All charges to your account hereunder, whether by credit card or otherwise, shall be denominated in the currency of the United States of America. (c) The amounts payable to XMATE hereunder are exclusive of any sales or use or other taxes or governmental charges. Customer shall be responsible for payment of all such taxes or charges except for any taxes based solely on XMATE' income. If Customer is required to pay any taxes pursuant to this Section 2(c), Customer shall pay such taxes with no reduction or offset in the amounts payable to XMATE hereunder. 3 IMPROVEMENTS, MODIFICATIONS OR DISCONTINUANCE (a) In order to improve the quality of xmate.co m.au , XMATE reserves the right to change its rules of operation, Customer identification procedures and system programming languages as well as enhancements to x mate.co m.au . (b) XMATE reserves the right at any time and from time to time to modify or discontinue xmate.co m.au (or any part thereof) with or without communicating such discontinuation to Customer. Customer agrees that XMATE shall not be liable to Customer or to any third party for any modification, suspension or discontinuance of xmate.co m.au . (c) XMATE reserves the right to establish or modify its general practices and limits concerning the use of xmate.co m.au , including, without limitation, the maximum number of days that data or images will be retained by x mate.co m.au as well as the disk space that will be allotted to Customer. 4 NO WARRANTY XMATE MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AS TO ANY MATTER WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, THE ACCURACY OF ANY INFORMATION, PRODUCT, PROGRAM, OR SERVICE FURNISHED HEREUNDER AND CUSTOMER SUBSCRIBES TO AND UTILISES xmate.com.au ON AN "AS IS" BASIS. 5 LIMITATION OF LIABILITY (a) EXCEPT AS PROVIDED IN SECTION 6 BELOW, IN NO EVENT SHALL XMATE BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION LOSS OF ANTICIPATED PROFITS OR OTHER ECONOMIC LOSS IN CONNECTION WITH OR ARISING OUT OF THE AVAILABILITY, EXISTENCE, THE FURNISHING, THE FUNCTIONING, OR USE OF ANY INFORMATION OR SERVICES (OR, IN ALL CASES, THE LACK OF ANY THEREOF) PROVIDED FOR IN THIS AGREEMENT. (b) Customer understands and agrees that with multiple processing of complex data, and with reliance upon information acquired from multiple sources, errors and omissions can and do occur despite commercially reasonable efforts to avoid them, and XMATE shall have no responsibility or liability for any loss or any special, indirect or consequential damages resulting to Customer or any third party from errors or omissions in xmate.com.au . XMATE SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE, DELAY IN PERFORMANCE OR NONPERFORMANCE CAUSED BY EQUIPMENT MALFUNCTUION OR BREAKDOWN, INFORMATION UNAVAILABILITY, STRIKES OR OTHER LABOR DISPUTES, RIOTS, FIRE, INSURRECTION, WAR, ACTS OF TERRORISM, FAILURE OF CARRIERS, THE ELEMENTS, ACCIDENTS, ACTS OF GOD, OR ANY OTHER CUASES BEYOND XMATE' REASONABLE CONTROL WHETHER OR NOT RELATED TO OR SIMILAR TO THE FOREGOING. (c) XMATE shall, at its sole option, have the right to reprocess information to correct any errors of which it is or becomes aware. 6 CUSTOMER'S RESPONSIBILITIES, WARRANTIES, ACKNOWLEDGEMENTS AND INDEMNIFICATION (a) XMATE shall provide Customer with the ability to select a User I.D. and Password. Customer shall maintain its User I.D. and Password in strict confidence. Customer shall be solely responsible for the maintenance of the confidentiality of its User I.D. and Password. Unauthorised sharing of a User I.D. and Password is prohibited. (b) Customer understands and agrees that all information acquired hereunder is for Customer's personal use. All of the information on xmate.co m.au is proprietary to or is licensed to XMATE by x mate.co m.au users or third parties. Customer agrees not to use any robot, spider, scraper or other automated means to access xmate.co m.au for any purpose without XMATE expressly providing, in an authorised signed writing, such permission to Customer. Additionally, Customer agrees not to: (i) take any action that imposes, or may impose in XMATE' sole discretion an unreasonable or disproportionately large load on XMATE' infrastructure; (ii) except as otherwise set forth herein, copy, reproduce, modify, frame, create derivative works from, distribute or publicly display any content (except for Customer's internal personal use), disseminate, distribute, or otherwise transfer or provide access to information acquired from xmate.co m.au without XMATE having first provided Customer with an authorised signed writing expressly permitting Customer to do so; (iii) interfere or impair or attempt to interfere or impair with the proper working or integrity of x mate.co m.au or any activities conducted on xmate.co m.au ; (iv) bypass measures XMATE may use to prevent or restrict access to x mate.co m.au ; or (v) otherwise violate the limited scope of permission herein expressly granted. These restrictions shall survive the termination of this Agreement. (c) Customer acknowledges that XMATE is not and shall not be responsible for notifying Customer of any upgrades, fixes or enhancements to any Software (defined in Subsection 6(i) below) or for any compromise or loss of data transmitted across computer networks or telecommunications facilities, including, but not limited to, the Internet. (d) The security of any data inputted by Customer may be maintained through the use of data encryption, data security protocols, passwords and other methods that XMATE may employ, or that XMATE may suggest or require that Customer employ. Customer agrees that XMATE has no responsibility for the deletion or failure to store any data transmitted by Customer or anyone else to xmate.co m.au . (e) XMATE shall not be obligated to delete or return Customer-inputted data upon termination of Customer's account. (f) Customer acknowledges and agrees that xmate. com.au and any necessary software, the access to which is provided by XMATE ("Software"), used in connection with x mate.co m.au contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Customer further acknowledges and agrees that content contained in sponsor advertisements or information presented to Customer through xmate.co m.au or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Customer agrees not to modify, rent, lease, loan, sell, distribute or create derivative works based on x mate.co m.au or the Software in whole or in part. Customer agrees not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion of xmate.co m.au , use of x mat e.com.au , or access to xmate.com.au . The foregoing does not apply to Customer-inputted data. (g) XMATE grants Customer a non-transferable, non-exclusive and terminable right and license to use the object code of the Software; provided that Customer does not (and does not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Software or any part thereof or otherwise attempt to discover any source code, or sell, assign, sublicense, grant a security interest in or otherwise transfer any right in or to the Software. Customer agrees not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorised access to xmate.co m.au . Customer agrees not to access xmate.co m.au by any means other than through the interface that is provided by XMATE for use in accessing xmate.co m.au . (h) Customer agrees to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with the use of xmate. com.au . In addition, and without limitation, Customer agrees not to use xmate.co m.au (including, without limitation, the x mate.co m.au Pedigree Binders) to: (i) send unsolicited or unauthorised advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (ii) harvest, collect, gather or assemble information or data regarding other users, including email addresses, without their consent; (iii) transmit through or post on xmate.co m.au unlawful, harassing, libelous, abusive, tortious, defamatory, threatening, harmful, invasive or another's privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (iv) transmit any material that may infringe the intellectual property rights or other rights of third parties, including, without limitation, trademark, copyright or right of publicity; (v) transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs, cancelbots; (vi) interfere with or disrupt servers or networks connected to xmate.co m.au or violate the regulations, policies or procedures of such networks; (vii) attempt to gain unauthorised access to x mate.co m.au , other accounts, computer systems or networks connected to x mate.co m.au , through password mining or any other means; (viii) harass or interfere with another user's use and enjoyment of xmate.co m.au or (ix) post, disseminate, distribute or otherwise transfer any material or information which XMATE finds objectionable in its sole and absolute discretion. (l) Customer understands and agrees that XMATE provides the capability to search and display horse names, along with other indicative information for horses, to facilitate the running of xmate.co m.au products or inclusion of horses in xmate.co m.au subscription related services. Use of this capability to search and display horse information for reasons other than as provided for in this Paragraph 6(l) is prohibited and shall be considered a material breach of this Agreement. 7 PROPRIETARY DATA All xmate.co m.au systems, programs, records, statistics, data, documentation, and any other like-kind material utilized or developed by XMATE in connection with xmate.c o m.au , shall be and remain the sole property of XMATE (save for Customer-inputted data and images which are proprietary to Customer). All rights, title to, and interest in, including copyrights and renewals thereof, all systems, programming, records, statistics, data, documentation, operators' manuals, components, and accessories comprising the system furnishing the services hereunder and provided by XMATE shall remain the property of XMATE or its licensor at all times (save for Customer-inputted data and images which are proprietary to Customer). 8 MISCELLANEOUS (a) Any assignment of this Agreement by Customer without the prior consent of XMATE in an authorised signed writing shall be null and void. XMATE may assign this Agreement to an affiliate having the capacity and expertise to provide the services required by this Agreement. (b) No waiver of any breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or other provisions of this Agreement, and no waiver shall be effective unless notice of such waiver is communicated to the non-waiving party by an authorised signed writing. (c) This Agreement represents the entire agreement between the parties hereto and supersedes all prior representations or understandings whether written (electronically or otherwise) or oral. (d) This Agreement shall be binding upon the parties, their successors, legal representatives, and permitted assigns. (e) If any provision of this Agreement or its application is held to be invalid, illegal, or unenforceable in any respect, the validity, legality, or enforceability of any of the other provisions and applications herein shall not in any way be affected or impaired and any provision held to be invalid, illegal or unenforceable shall be replace with an enforceable provision of like intent and effect. (g) The following provisions shall survive any termination of this Agreement: Sections 2, 5, 6, 7 and 8.