User AgreementPlease review this User Agreement for acceptance. Services are subject to the terms of this Agreement. You must read, agree with and accept all of the terms and conditions contained in this User Agreement and the Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may purchase from BreedTrader. Agreeing to these terms affirms you (Client) thoroughly understand the BreedTrader User Agreement and Privacy Policy. Now therefore, in consideration of the mutual promises contained herein, the parties, intending to be legally bound, agree as follows: 1. Services a. Services. BreedTrader will perform and provide to Client, services of a web site (“Site”) (including hosting) that Client desires to make available on a global computer communication network known as the Internet and to provide Client with additional specific services such as system updates. The Web Hosting Services and any Additional Services, including updates are collectively referred to as the “Service(s)”. b. Specifications. BreedTrader shall use its best professional efforts to author and develop the Site in accordance with the specifications detailed in this Exhibit and the highest professional standards. The Site shall incorporate certain materials provided by BreedTrader which include, without limitation, computer software (in object or source code form), script, programming code, data, information, HTML code, trademarks, images, illustrations, graphics, multimedia files and/or text (“BreedTrader Content”). The Site shall also incorporate the materials, if any, provided by Client, including, without limitation, trade or service marks, images, illustrations, graphics, multimedia files and/or text. 2. Eligibility a. Authorized Users. Our services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to children (persons under the age of 18) or to users unauthorized by BreedTrader. If you are a under the age of 18, you can use this service only in conjunction with, and under the supervision of your parents or guardians. If you do not qualify, please do not use our site. b. User ID. You are responsible for all actions taken with your User ID and password, including fees charged to your account. Therefore we do not recommend that you disclose your BreedTrader password to any third parties. If you choose to share your User ID and password or your personal information with third parties, you are responsible for all actions taken with your account. If you lose control of your password, you may lose substantial control over your personal information and may be subject to legally binding actions taken on your behalf. Therefore, if your password has been compromised for any reason, you should immediately change your password by following instructions offered through your website's "admin" area, located under “account”, “change password”. Your user ID may not be transferred or sold to another party. If you are registering as a business entity, you represent that you have the authority to bind the entity to this Agreement. Client is responsible for their user ID, password, and personal information. Breedtrader will not be held responsible for any fraudulent activity or costs accumulated due to Client loss or misuse of user ID, password, or personal information. c. Inhumane Use. BreedTrader has the utmost respect for the animal community and has an obligation to report all harm and abuse inflicted upon animals. Any user found by BreedTrader to be using our site in a way abusive to any animal will be immediately terminated from use of both our website and classified systems. We rely heavily upon our animal friendly community of breeders and caretakers to report and make known to BreedTrader of all known animal abuse. 3. License License. In consideration of BreedTrader’s performance as a service provider of all obligations under this agreement, Client grants to BreedTrader, and BreedTrader accepts from Client, a non-exclusive, worldwide, perpetual, irrevocable, royalty-free license for the perpetual term of this Agreement to edit, modify, adapt, translate, exhibit, publish, transmit, copy, prepare derivative works from and use the client's content solely in connection with the site and/or BreedTrader’s performance of this Agreement. 4. Site Development and Delivery. a.. Delivery. Within seventy-two (72) hrs of client's receipt of payment to BreedTrader, BreedTrader shall deliver to Client, the User ID and Password including instruction for setting up client’s site. Such site shall include BreedTrader’s inventory system and instructions to set up site in accordance with client specifications. BreedTrader operates in accordance with the highest professional standards and to the Specifications set forth at Exhibit (b). b. Revisions. Client agrees that requests by client that exceed the scope of the Specifications will not be accommodated. We are always eager to please our client and may enter into specific agreements for revisions. These revisions that may be made will be available to all clients regardless of the revision’s origin. c. Acceptance. Upon any delivery of site, client is responsible to review received site for acceptance. Client shall have thirty (30) days to evaluate and test the site. If no response is received by BreedTrader, client accepts the site delivered. If client desires cancellation within the thirty (30) day gaurantee period, a written notice of cancellation is not required, although client must give notice to BreedTrader within the first thirty (30) gauranteed days of clients desire to cancel. If client desires cancellation after the thirty (30) day gaurantee period has expired, a written notice of cancellation is required to avoid the next months billing specifying the basis therefore. . (Please read “Warranties” Exhibit (7)and “Refund” Exhibit 6(d)). After the thirty day period, client will be responsible for all fees until membership is terminated. BreedTrader shall attempt to implement requests that are within the scope of the Specifications. d. Cancellation. d. Cancellation. Upon your request, we will deactivate your account, contact information, billing information, shipping information, and financial information from our active databases. To make this request, email support@breedtrader.com. Such information will be deactivated as soon as reasonably possible based on your account activity and in accordance with applicable law. We will retain in our files some personal information you have requested to remove to prevent fraud, collect any fees owed, resolve disputes, troubleshoot problems, assist with any investigations, enforce our User Agreement and comply with legal requirements as is permitted by law. Therefore, you should not expect that all of your personal information will be completely removed from our databases in response to your requests. However, such personal information will be deactivated from public viewing and will only be available to select BreedTrader personnel. 5. Proprietary Rights a. Ownership. Except for the graphics developed under this Agreement and other Client provided artwork, service marks or trademarks, BreedTrader shall own all right, title and interest (including copyright and other proprietary or intellectual property rights) in the works and all legally protectable elements, contributions, collective works thereof or derivative works thereto. Client acknowledges that all software code and functionality of the website shall remain the property of BreedTrader and that in the event that BreedTrader is no longer servicing and or maintaining the site on behalf of the client, client will be responsible for any additional fees and or costs associated with making the site functional. You may not claim intellectual or exclusive ownership to any of BreedTrader’s products, modified or unmodified. All products are property of BreedTrader Inc. You may not use the images, photos, and text on BreedTrader.com without written agreement by BreedTrader.com. BreedTrader offers templates to our clients based on their selection. Other BreedTrader clients may select the same template and/or the same colors client website contains. Client understands this is possible and accepts any liability that may be associated. b. Moral Rights Waiver. Client understands that the term "moral rights" means any rights of paternity or integrity, including any right to claim authorship of a copyrightable work, to object to a modification of such copyrightable work, and any similar right existing under the judicial or statutory law of any country in the world or under any treaty, regardless of whether or not such right is denominated or generally referred to as a “moral right,” including, without limitation, the rights of attribution and integrity in works of visual art pursuant to 17 U.S.C. 106A. Client irrevocably waives and agrees never to assert any moral rights BreedTrader may have in any Works, even after any termination or expiration of this Agreement. c. Developer Works. In the event that BreedTrader cannot grant the rights set forth at Section 5(a) with respect to any portion of the Site, including BreedTrader Content (“Developer Works”), BreedTrader will make available the source of BreedTrader's right and authority to use, copy, create derivative works, license or display such Developer Works in connection with the Services. d. Reselling. The BreedTrader templates may not be resold , such as passing our templates over to third parties in CD's and diskettes, or letting others download BreedTrader templates from your websites. In the event of such a practice, BreedTrader will immediately terminate your membership privileges and NO refunds will be made. Furthermore, by conducting such a practice, you automatically waive any legal claims against BreedTrader. e. Limitations. BreedTrader shall not incorporate into any Work, any material, text, graphic, sound or animation in any form that, without limitation, may be obscene, defamatory, harassing, grossly offensive, malicious, or that actually or potentially infringes or misappropriates the copyright, trademark, proprietary or other intellectual property right of any person. f. Not liable. aa. Client agrees that BreedTrader is not responsible, and shall have no liability to such client, with respect to any information, animals, or products offered by others who link to the BreedTrader.com website. BreedTrader shall not be liable for any damages allegedly sustained arising from use of the information, animals, or products offered by clients. In no event shall BreedTrader be liable for any damages including, but not limited to, direct, indirect, special, incidental or consequential damages, or other losses arising out of the use of or inability to use site. bb. Client is responsible for adding or editing any and all client content not provided by BreedTrader on the site itself. You can change your email address, contact information, financial information, shipping information, and user preferences by going to “account” in your admin. area. You should promptly update your personal information if it changes or is inaccurate. Technical support will be available to assist you with questions at the times specified on BreedTrader.com. g. Client responsibilities. You understand that BreedTrader.com is not responsible for the content, quality or merchantability of any information, product, or animal offered herein and the Client must assume full responsibility to evaluate independently the accuracy, completeness, quality and usefulness of any information or other content. BreedTrader does not control the information provided by Client made available through our system and are not responsible for the acts or omissions of Clients. 6. Services Schedule and Payment a. Payment Terms. Client shall pay BreedTrader for the Services in amounts set forth by BreedTrader and displayed on BreedTrader.com, at the time of client’s initial purchase and on a monthly recurrent billing cycle thereafter. Client shall pay BreedTrader for any additional services such as overuse of bandwidth on a time basis at the rate specified therein. Client must pay all fees associated with overuse of bandwidth before changing service packages. Payment will be deducted on a recurring monthly basis consistent with the processing date of client’s initial purchase. In the event of client cancellation, all fees associated with client’s use will be due at time of cancellation. BreedTrader reserves the right to terminate any client account which will result in loss of client’s site due to non-payment of over 30 days. b. Severability. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable c. Taxes. Sales tax will not be added to your purchases of our system. d. Refund. If client cancellation occurs within the 30-day money back guarantee period, BreedTrader will refund client’s money less the cost of monthly service. Client is responsible for contacting BreedTrader to cancel within the guaranteed time. Contact date must be within the guaranteed 30 day period. Client cancellations occurring after the guarantee period must be in the form of written letter of cancellation, sent to BreedTrader’s mailing address to avoid future billing. Client monthly service fees will not be pro-rated or refunded when changing service package after the thirty (30) day period. Overpayment of a client may result in crediting future charges or refunding. (Please refer to “Acceptance” Exhibit 4(c)). (Please additionally review “Refund Policy” located at the bottom of the home page.) e Changes. BreedTrader may change fees and Refund Policies, including but not limited to, the fees for our services from time to time. Our changes to the policy are effective after posing to the site. Client should periodically check the amended date to ensure all recent updates are known. However, we may choose to temporarily change our fees and Refund Policy and the fees for our services for promotional events and such changes are effective when we post the temporary promotional event on the site. We may in our sole discretion change some or all of our Services at any time. In the event we introduce a new Service, the fees for that service are effective at the launch of the Service. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees associated with using our service and the site. f. Records and Auditing. BreedTrader shall maintain complete and accurate business and accounting records that contain information sufficient to substantiate client charges for a period of at least one (1) calendar year after the date of such charges. Throughout the term of this agreement and for up to one (1) year thereafter, client shall have the responsibility, at its own expense, of keeping such personal records for applicable reasons (i.e. billing disputes, substantiating and certifying the accuracy of charges.) In the event of over payment (exceeding the actual payments due) by a client to BreedTrader, BreedTrader will credit an up coming bill or refund the over payment. g. Bandwidth. Client is responsible for monitoring the bandwidth and storage used monthly on their Site. Client should stay within the bandwidth and storage guidelines purchased. If client exceeds bandwidth use, client will be charged for over use of bandwidth at the current price set forth by BreedTrader. Client must pay all charges associated with clients overuse before receiving a new service package. hService Package. All service packages will be billed on a recurrent monthly basis. The constant payment date shall be determined by payment acceptance date. In the event a service package change is requested, clients have 2 (two) options. Client can make the new service package activated either immediately or on the next billing date. In the event client requests immediate activation, client will not receive a refund nor be pro-rated for any cost differences. The billing date will be changed to the new activation date. Clients choosing to wait, and have their package changed on their regular billing date will not have the additional (if upgraded) bandwidth and storage available until their account has been charged.
7. Warranties a. Warranty. BreedTrader warrants to Client that: (i) BreedTrader has the right and authority to enter into and perform its obligations under this agreement; (ii) the site shall conform to the Specifications set forth by BreedTrader.com; (iii) the BreedTrader content and the site do not and shall not contain any content, data, work, materials, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; (iv) BreedTrader has and will have full and sufficient right to assign or grant the rights and/or license set forth at Sections 5(a) and 5(e), respectively; (v) the works are subject to the terms of Sections 5(a) and 5(b); and (vi) BreedTrader is not and shall not be under any obligation or restriction that may in any way interfere, conflict with or present a conflict of interest in relation to the Services. BreedTrader extends a thirty (30) day warranty sited in 4(c) for new clients to review the BreedTrader system. IN NO EVENT SHALL BREEDTRADER BE LIABLE TO ANY OTHER PARTY OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFIT OR GOODWILL, FOR ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR ITS SUBJECT MATTER, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. b. Content Warranty. You understand that BreedTrader is not responsible for the content, quality or merchantability of any information, product, or animal offered herein and the client must assume full responsibility to evaluate independently the accuracy, completeness, quality and usefulness of any information or other content. BreedTrader does not control the information provided by client made available through our system and are not responsible for the acts or omissions of clients. BreedTrader.com hereby expressly disclaims any and all warranties of accuracy, reliability, merchantability or fitness for a particular purpose by any client offering information, products, or animals linked to the BreedTrader.com website. c . Client Warranty. Client represents and warrants to BreedTrader that: (i) Client has the power and authority to enter into and perform its obligations under this Agreement; (ii) Client Content shall not contain any content, materials, link, advertising or services that actually or potentially violate any applicable law or regulation or infringe or misappropriate any proprietary, intellectual property, contract or tort right of any person; and (iii) Client owns the client content and all proprietary or intellectual property rights therein, or has express written authorization from the owner to grant the license at Section (3) and authorize BreedTrader to perform the Services. 8. Term and Termination a. Term. The term of this agreement shall commence on the effective date (date agreed) and shall continue thereafter until terminated by either party. b. Termination. This Agreement may be terminated: (i) by Client upon thirty (30) days written notice to BreedTrader; (ii) by Client in the event BreedTrader makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against BreedTrader; (iii) by a written agreement executed by the parties; (iv) client cancels within the 30-day guarantee period. c. Return and Destruction. Upon any termination or expiration of this Agreement, BreedTrader shall immediately delete client confidential information in BreedTrader’s custody or control. d.Payment Upon Termination. In the event this Agreement is terminated, Client shall pay BreedTrader for all Services and/or work undertaken in performance of its obligations hereunder up to the date of termination. Such payment is due and payable upon cancellation or termination either by client or BreedTrader. 9. Confidentiality a. Confidential Information.Client may provide to BreedTrader certain confidential, proprietary and trade secret business or technical information in connection with BreedTrader’s performance of the Services (“Confidential Information”). BreedTrader agrees to preserve the confidentiality of all Confidential Information that is provided by client in connection with the agreement, and shall not, without the prior written consent of client, disclose or make available to any person, or use for its own or any other person's benefit, other than as necessary in performance of its obligations under this agreement or stated in the Privacy Policy, any Confidential Information of client. BreedTrader will not use the information you supply us with in a way that is violating any rights you might have. BreedTrader shall exercise a commercially reasonable level of care to safeguard Confidential Information of client against improper disclosure or use. Client is solely responsible for information placed on their site and BreedTrader is in no way responsible for your online distribution, publication, or carelessness of your Confidential Information.
c. No Developer Confidential Information. BreedTrader will not disclose to client any Confidential Information of BreedTrader or of any other person. BreedTrader represents and warrants that any information provided to client in the performance of this agreement is not and shall not be Confidential Information. 10. Interference.
11. Breach. a. Breach. Without limiting other remedies, we may limit your activity, immediately remove or temporarily suspend, indefinitely suspend, terminate your use, or refuse to provide our services to you if: (a) you breach this agreement or the documents it incorporates by reference; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us. b. Legal
Compliance 12. Fraud. Fraud. Without limiting any other remedies, BreedTrader may suspend or terminate your account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the our site. 13. Release. Release. Client releases and agrees to indemnify and hold harmless BreedTrader (and our officers, directors, affiliates, agents, subsidiaries, joint ventures and employees) from claims, demands, liabilities and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes specifically but not limited to 5(d). 14. Notice. Notice. All notices shall be in writing or e-mail format and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by facsimile or e-mail sent to 318 Park Central East Suite 610, Springfield, MO 65806 (or) legalservices@breedtrader.com. All notices shall be directed to the party at the address given above or to such other address as either party may, from time to time, designate by notice to the other party. 15. General a. Independent Contractors. The parties and their respective personnel are and shall be independent contractors and neither party by virtue of this agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party. b. Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof. c. Amendment. No amendment, change, waiver, or discharge hereof shall be valid until such revisions have been posted to the site. Client is responsible to read any amended terms either under the User Agreement or Privacy Policy. d. Law. This Agreement shall be governed in all respects by the laws of the State of Missouri without regard to its conflict of laws provisions. e. Survival. The respective rights and obligations of the parties under Sections 2, 5, 6(c), 5(e), 6(f), 7, 8, 9, 13, and 15 shall survive any termination or expiration of this Agreement. f. Time. The parties agree that time is of the essence in the performance of the respective obligations under this agreement. g. Entire Agreement. This agreement constitutes the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written.
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