TERMS OF SERVICE

This Terms of Service Agreement ("Agreement") is entered into as of the date on which the Customer first uses the TOPCOM ONLINE Services (as defined below) ("Effective Date") by and between TOPCOM ONLINE PTY LTD ("TOPCOM ONLINE") and Customer ("Customer").

R E C I T A L S

WHEREAS, TOPCOM ONLINE is a service provider that offers access to, and use of, certain applications including its fully integrated set of web-based modules ("TOPCOM ONLINE Services") and implementation support to initiate such access and use.

WHEREAS, Customer wants to retain TOPCOM ONLINE to allow Customer to access and use the TOPCOM ONLINE Services under the terms and conditions set forth in this Agreement.

NOW THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, Customer and TOPCOM ONLINE agree to the foregoing and as follows:

GENERAL

1.1 Overview of Agreement. This Agreement represents the terms and conditions under which TOPCOM ONLINE shall provide Customer access to, and use of the TOPCOM ONLINE Services package or packages subscribed to ("TOPCOM ONLINE Services Package"), which may be amended from time to time to reflect additional or amended TOPCOM ONLINE Services ordered by Customer. TOPCOM ONLINE Services shall be provided to Customer via the Internet’s world wide web. Additional services and/or deliverables may be procured consistent with the terms of this Agreement. Any attempt to alter or amend the terms and conditions contained in this Agreement through conflicting or inconsistent terms in any other document shall be void and of no force and effect.

TOPCOM ONLINE SERVICES

2.1 Equipment. Customer will be responsible for procuring, at Customer's sole expense, all equipment or other software, if any, required to use TOPCOM ONLINE Services.

2.2 Access Rights.

The Software is in "use" on a web site when it is accessible to users on a network or on the World Wide Web. The End-user may use the software in accordance with its stated purpose to assist in the development of web sites for personal or commercial use, with a license fee required per single web site (one domain only).

During the term of this Agreement, Customer will have a limited, revocable, non-transferable and non-exclusive license for Customer’s employees ("Authorized Users") to use the TOPCOM ONLINE Services Package and related documentation solely for Customer's business purposes consistent with the terms and conditions of this Agreement. TOPCOM ONLINE will issue to one Authorized User ("TOPCOM ONLINE Administrator") an individual logon identifier and password ("Administrator's Logon") for purposes of administering the TOPCOM ONLINE Services Package. Customer acknowledges and agrees that only its TOPCOM ONLINE Administrator shall be authorized to bind Customer in connection with any service provided to Customer under this Agreement. Customer shall use its reasonable efforts to see that each Authorized User will: (a) be responsible for the security and/or use of his or her logon identifier; (b) not disclose such logon identifier to any person or entity; (c) not permit any other person or entity to use his or her logon identifier; (d) use the TOPCOM ONLINE Services Package consistent with the assigned business rules; and (e) use the TOPCOM ONLINE Services Package in accordance with the terms and conditions of this Agreement. Customer will be responsible for: (f) advising each Authorized User of his or her obligations under this Agreement and of the license restrictions set forth in this Agreement; and (g) any and all costs and expenses incurred through the authorized use of Customer's Logon. TOPCOM ONLINE reserves the right to deny, suspend or revoke access to the TOPCOM ONLINE Services, in whole or in part, if TOPCOM ONLINE believes Customer and/or its Authorized Users are in breach of this Agreement or are otherwise using or accessing the TOPCOM ONLINE Services inconsistent with the terms and conditions of this Agreement.

2.3 Restrictions.

The customer is expected to be familiar with and to practice good Internet etiquette (Netiquette). The customer will comply with the rules appropriate to any network to which TOPCOM ONLINE may provide access. The customer should not post, transmit, or permit Internet access to information the customer desires to keep confidential. The customer is not permitted to post any material that is illegal, libelous, tortuous, indecently depicts children or is likely to result in retaliation against TOPCOM ONLINE by offended users. TOPCOM ONLINE reserves the right to refuse or terminate service at any time for violation of this section. This includes advertising services or sites via IRC or USENET in clear violation of the policies of the IRC channel or USENET group.

Customer agrees that Customer and its Authorized Users will not: (a) sell, lease, license or sublicense the TOPCOM ONLINE Services; (b) modify, change, alter, translate, create derivative works from, reverse engineer, disassemble or decompile the TOPCOM ONLINE Services in any way for any reason; (except for “About Us”, “Contact Us” pages)(c) provide, disclose, divulge or make available to, or permit use of the TOPCOM ONLINE Services by, any third party; (d) copy or reproduce all or any part of the TOPCOM ONLINE Services (except as expressly provided for herein); (e) interfere, or attempt to interfere, with the TOPCOM ONLINE Services in any way; (f) engage in spamming, mail bombing, spoofing or any other fraudulent, illegal or unauthorized use of the TOPCOM ONLINE Services; (g) knowingly introduce into or transmit through the TOPCOM ONLINE Services any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design; (h) remove, obscure or alter any copyright notice, trademarks or other proprietary rights notices affixed to or contained within the TOPCOM ONLINE Services; or (i) engage in or allow any action involving the TOPCOM ONLINE Services that is inconsistent with the terms and conditions of this Agreement.

2.4 Non-Exclusivity. The parties acknowledge and agree that TOPCOM ONLINE is providing access to and use of the TOPCOM ONLINE Services to multiple customers and that such services are non-exclusive.

2.5 TOPCOM ONLINE's Licensors.

2.5.1 Terms and Conditions applicable to services provided by TOPCOM ONLINE’s Licensors. Customer acknowledges and agrees that TOPCOM ONLINE Services are provided, in some cases, by third party Licensors to TOPCOM ONLINE (hereinafter “Third Party Licensors”). For all TOPCOM ONLINE Services contained in the TOPCOM ONLINE Service Package that are provided by Third Party Licensors to TOPCOM ONLINE, Customer agrees with and shall abide by all Third Party Licensor terms and conditions, if any. Any Additional Terms and Conditions are in addition to and supplement the terms and conditions provided in this Agreement. Customer acknowledges and agrees that it will be subject to all Additional Terms and Conditions and that all such Additional Terms and Conditions shall be incorporated into the terms and conditions of this Agreement as if set forth fully herein. Customer further agrees that it will be subject to all Additional Terms and Conditions where Customer elects to add services to its TOPCOM ONLINE Services Package.

2.5.2 Changes to TOPCOM ONLINE Licensors. Customer acknowledges that TOPCOM ONLINE may, at its sole discretion, change any Third Party Licensors that provide services under this Agreement, or add or delete discrete services from the TOPCOM ONLINE Services. TOPCOM ONLINE agrees to use reasonable efforts to prevent any service interruptions associated with TOPCOM ONLINE’s decision, if any, to change Third Party Licensors. In the event that TOPCOM ONLINE changes Third Party Licensors, TOPCOM ONLINE may provide Customer with notification of changes in Third Party Licensors and refer Customer to information posted on TOPCOM ONLINE’s website relative to that change which shall become Additional Terms and Conditions for the purposes of this Agreement.

FEES; PAYMENT TERMS

3.1 Applications and Use Fee. Customer shall pay any application fees, user fees, including but not limited to monthly fees and any taxes according to the TOPCOM ONLINE’s then-applicable fee schedule. Customer shall pay all amounts due under any invoice to TOPCOM ONLINE within thirty (30) calendar days of due date.

TOPCOM ONLINE reserves the right to unilaterally vary the terms, fees and conditions contained in this Agreement at any time without prior notification to the Client of its intention to do so. However, upon any variation the Client will be issued with a notice from TOPCOM ONLINE detailing any variations made and the Client will be deemed to have accepted any such variation unless written notice of termination is given to TOPCOM ONLINE within seven (7) days of receipt of such notification.

3.2 Late Payments. If Customer fails to pay any fees by the applicable due date, TOPCOM ONLINE will have the right to: (a) assess late charges in an amount equal to the greater of five percent (5%) per month or the maximum allowable under applicable law; and/or (b) suspend access to any or all of the TOPCOM ONLINE Services and/or performance of the services provided by TOPCOM ONLINE hereunder and/or terminate this Agreement. Any such suspension or termination will not relieve Customer from paying any outstanding fees plus interest and late charges. Customer will be responsible for any costs associated with collecting such fees including, without limitation, legal costs, attorneys’ fees, court costs and collection agency fees.

3.3 Taxes. Customer will pay or reimburse TOPCOM ONLINE for all sales, use, transfer, privilege, excise and all other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the performance by TOPCOM ONLINE under this Agreement, excluding, however, income taxes or gross receipts taxes which may be levied against TOPCOM ONLINE. Such taxes may be reflected on Customer invoices.

LIMITED WARRANTIES

4.1 Customer Warranty. Customer represents and warrants to TOPCOM ONLINE that: (a) Customer has the authority to enter into this Agreement and perform its obligations under this Agreement; (b) Customer and its Authorized Users will only use the TOPCOM ONLINE Services for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party; and (c) Customer warrants that it is not located in a country where export or re-export of the contents of information received via the Internet is prohibited. Should Customer receive notice of any claim regarding the TOPCOM ONLINE Services, Customer shall promptly provide TOPCOM ONLINE with a written notice of such claim.

4.2 TOPCOM ONLINE Warranty. TOPCOM ONLINE warrants that: (a) TOPCOM ONLINE has the authority to enter into this Agreement and perform its obligations under this Agreement; and (b) TOPCOM ONLINE will perform the services required under this Agreement in a professional and workmanlike manner.

4.3 Disclaimer. EXCEPT AS OTHERWISE SET FORTH HEREIN, TOPCOM ONLINE MAKES NO REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATING TO ANY OF THE SERVICES AND/OR ACCESS TO OR USE OF THE TOPCOM ONLINE SERVICES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. TOPCOM ONLINE SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

LIMITATION OF LIABILITY

TOPCOM ONLINE’S LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES OF ANY KIND WILL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNT PAID BY CUSTOMER TO TOPCOM ONLINE THROUGH THE DATE TOPCOM ONLINE’S LIABILITY TO CUSTOMER ACCRUES. IN NO EVENT SHALL TOPCOM ONLINE BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS.

INDEMNIFICATION

Customer agrees to indemnify, defend (at TOPCOM ONLINE's sole option and at Customer's sole expense) and hold harmless TOPCOM ONLINE, its managers, directors, officers, employees, independent contractors and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys' fees, to the extent that such action is based upon a claim arising out of or relating to Customer's use of and/or access to the TOPCOM ONLINE Services or services provided hereunder. Customer specifically acknowledges that TOPCOM ONLINE shall not be liable to Customer for losses, if any, incurred as a result of fraudulent or unauthorized misuse of TOPCOM ONLINE Services.

TOPCOM ONLINE agrees to indemnify, defend and hold harmless Customer, its directors, officers, employees and agents, and defend any action brought against same with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon a claim arising our of or relating to any infringement of a copyright, trademark, trade secret, patent or other intellectual property right of any third party as a result of Customer’s use of the TOPCOM ONLINE Services in accordance with this Agreement. Customer agrees to furnish TOPCOM ONLINE with prompt notice of such infringement claim, whereupon Customer hereby authorizes TOPCOM ONLINE to defend such claim and agrees to cooperate and assist TOPCOM ONLINE fully in such defense, at TOPCOM ONLINE’s expense.

 CONFIDENTIAL INFORMATION

"Confidential Information" will include the terms of this Agreement, any software provided by TOPCOM ONLINE under this Agreement, the logon identifiers and/or passwords provided to Customer and each Authorized User, the prices and fees charged under this Agreement, any other materials marked confidential by Customer or TOPCOM ONLINE and any other information conveyed under this Agreement that is identified in writing as confidential at the time of its conveyance. Each party acknowledges and agrees that: (a) the Confidential Information constitutes valuable trade secrets of the party owning such Confidential Information; (b) it will use Confidential Information solely in accordance with the provisions of this Agreement; and (c) it will not disclose, or permit to be disclosed, the Confidential Information of the other party to any third party without the disclosing party's prior written consent. Each party will take all reasonable precautions necessary to safeguard the confidentiality of the other party's Confidential Information including, at a minimum, those precautions taken by a party to protect its own Confidential Information, which will in no event be less than a reasonable degree of care. Confidential Information will not include information that is: (d) publicly available; (e) already in the other party's possession and not subject to a confidentiality obligation; (f) obtained by the other party from any source without any obligation of confidentiality; (g) independently developed by the other party without reference to the disclosing party's Confidential Information; or (h) required to be disclosed by order of a court or other governmental entity; provided no less than ten (10) days written notice is given to the party owning such Confidential Information so that such party may obtain a protective order or other equitable relief.

PROPRIETARY RIGHTS

No right (except for the license granted in Section 2.2), title or interest of intellectual property or other proprietary rights in and to the TOPCOM ONLINE Services and/or other products or services made available under this Agreement is transferred to Customer hereunder. TOPCOM ONLINE and its third party licensors retain all right, title and interests, including, without limitation, all copyright, intellectual property and other proprietary rights in and to the TOPCOM ONLINE Services and/or other products or services provided under this Agreement. Customer will retain all right, title and interest to the documents created by Customer using the TOPCOM ONLINE Services.

TERM AND TERMINATION

9.1 Term. This Agreement will commence as of the Effective Date and shall continue thereafter on a month-to-month basis unless terminated pursuant to Section 2.5.2, 9.2 or 9.3, OR UPON TELEPHONE NOTICE TO THE TOPCOM ONLINE BILLING DEPARTMENT. ANY EMAIL NOTICE WILL BE DISREGARDED. WRITTEN NOTICE MAY BE MAILED DIRECTLY TO TOPCOM ONLINE AT:

74/125 PARK ROAD
DUNDAS
NSW, AUSTRALIA, 2117

9.2 Termination by TOPCOM ONLINE. TOPCOM ONLINE shall have the right, upon written notice to Customer, to terminate this Agreement if: (a) Customer fails to timely pay TOPCOM ONLINE any amount due to TOPCOM ONLINE under this Agreement; (b) Customer materially breaches any term or condition this Agreement, provided such breach is not cured by Customer within thirty (30) calendar days following TOPCOM ONLINE's notice to Customer of such breach; or (c) Customer (i) terminates or suspends its business activities; (ii) becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (iii) becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes.

9.3 Termination by Customer. Customer will have the right, upon written notice to TOPCOM ONLINE, to terminate this Agreement if TOPCOM ONLINE is in material breach of this Agreement and TOPCOM ONLINE fails to remedy such material breach within thirty (30) calendar days of its receipt of such written notice.

9.4 Obligations upon Termination or Expiration and Non-Renewal. Upon the expiration and non-renewal or termination of this Agreement for any reason: (a) Customer's access to, and use of, the TOPCOM ONLINE Services will terminate; (b) Customer will return to TOPCOM ONLINE any and all TOPCOM ONLINE Services, equipment, software, documentation or other deliverables provided to Customer by TOPCOM ONLINE including any copies thereof held by Customer; (c) TOPCOM ONLINE will deliver to Customer all Customer documents and other materials stored by Customer on the TOPCOM ONLINE Network; and (d) each party shall return any and all Confidential Information in its possession to the party that disclosed such Confidential Information and provide written verification of same.

9.5 Survival. Any provisions of this Agreement that by their nature should survive termination of this Agreement will survive termination of this Agreement, including but not limited to Section 2.4, and 6, 7, and 8.