Terms of use

The following terms and conditions (the "Terms of Use" or "TOU") relate to the online platform operated by 99 Digital Pty Limited (ACN: 603 806 551) t/as MiStable ("MiStable") called "MiStable" at http://www.mistable.com (the "Website") which provides a range of services and information relating to thoroughbreds (and related matters) and allows users to access various features and services offered via the Website (the "Service" as further defined below). Use of the Service and maintenance of an Account is governed by these Terms of Use and the Terms of Use must be accepted prior to first use of the Service. These Terms of Use include and incorporate any other Policies (as defined below) issued by MiStable from time to time.

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In these Terms of Use, unless the context otherwise requires or permits:

"Account" means an Account established by MiStable to enable a Member to access and use the Service, as described in clause 5 below;

"Confidential Information" means in relation to each party, all information of a confidential nature relating to the business and/or operations of that party (whether such information is disclosed in writing, orally, by visual presentation or by any other means of providing access to such information) including but not limited to any such information subsisting in any Content;

"Content" means all information, news, opinions, feedback, material, images, graphics, video, audio, multimedia output, graphs, tables, charts, statistics, reports, summaries, objects, logos, layouts, data, geo-location information, colour schemes and any other content that is accessible to the Member via the Service, including any such content which is created by MiStable based on or derived from Third-Party Content;

"Fees" means fees and charges payable in respect of the Service; "Force Majeure Event" means strikes, lock-outs, or other labour disputes, riots, civil disturbance, actions or inaction of governmental authorities or suppliers, epidemics, wars, embargoes, storms, floods, fires, earthquakes, acts of God or the public enemy, computer downtime, nuclear disasters, default of a service carrier or other circumstances outside the control of MiStable;

"Intellectual Property Rights" means any and all intellectual and industrial property rights subsisting in any part of the universe in any and all media (whether now known or created in the future) including, without limitation, rights in the nature of copyright, registered design or other design right, trade mark, patent rights, circuit layout rights, trade secrets and any corresponding proprietary rights (whether registered or common law) under the laws of any jurisdiction;

"Maintenance" means any scheduled or unscheduled period whereby the Service is not available by reason of maintenance and/or upgrades to the Service;

"Member" means a person or entity who agrees to these Terms of Use and includes any employee of such person or entity, and any person who that person or entity allows to use the Service and anyone deemed to be a relevant Member of the Service described in clause 2. "Policies" means any rules, policies and other guidelines, including the Privacy Policy, issued by MiStable from time to time which concerns the use of the Service;

"Privacy Policy" means the policy issued by MiStable from time to time that is expressed to govern how MiStable collects, uses and discloses information;

"Service" means features and services, including, without limitation the Website, the Content and/or Third-Party Content, provided by MiStable from time to time via web sites, web applications (including the Website) and as further described in clause 3 below; and

"Third-Party Content" means content which has been sourced from or provided by third parties, including, without limitation, Customers to MiStable which appears or is published on the Website and/or which MiStable uses in providing the Service [and also includes content on websites that may be linked to or from the Website.

1.2 Interpretation

In these Terms of Use, unless expressly stated otherwise or the context otherwise requires, references to these Terms of Use shall include a reference to the Policies and references to any legislation or legislative provision will include modifying, consolidating, or replacing legislation or legislative provisions and references to a statute will include all regulations, proclamations, ordinances and by-laws issued under that statute.

In these Terms of Use, references to the words "including" and "includes" and similar words are not words of limitation, references to a person includes any other entity recognised by law and references to a singular include the plural and vice versa. Headings are included for convenience and ease of reference only and do not affect interpretation of these Terms.

2. EFFECT OF TERMS

2.1 MiStable provides the Service solely in accordance with the Terms of Use and Member acknowledges and warrants that the Member has read and understood the Terms of Use.

2.2 Customers acknowledge that if there is any conflict between the terms and conditions in these Terms of Use and any Policies, these Terms of Use will prevail to the extent of any inconsistency.

2.3 Customers acknowledge that MiStable may, from time to time at its sole and absolute discretion, revise the Terms of Use (including the Policies). MiStable will post a notice on the Website whenever it revises the Terms of Use ("Notice of Change"). Customers agree that by continuing to use the Service following the Notice of Change, the Member shall be deemed to have accepted any such revision. It is the Member's responsibility to review the Terms of Use periodically and if at any time the Member finds any revision to the Terms of Use to be unacceptable, in whole or in part, the Member should not continue to use the Service and must take steps to cancel its Account, including by providing notice to MiStable of such an intention.

2.4 If the Terms of Use is revised pursuant to clause 2.3 above, Customers acknowledge and accept that:

  1. the matters disclosed in any revised Terms of Use shall prevail to the extent that they are inconsistent with any matters in the previously accepted version of the Terms of Use before the revision; and
  2. all references in these Terms of Use shall be read as referring to the most recent version of the Terms of Use which the Member has accepted or is deemed to have accepted upon Account to the Service or pursuant to clause 2.3 above

2.5 MiStable unconditionally reserves the right to refuse, cancel, terminate or suspend a Member or any person purporting to be entitled to be or become a Member, or to the benefits of or associated with Customership, for any reason or reasons whatsoever and at any time, and MiStable shall not be liable for any loss, damage or expense howsoever incurred in respect of the exercise of that right.

3. NATURE OF THE SERVICE

3.1 Subject to payment of any Fees (see clause 6 below), access to and use of the Service is provided by MiStable, including to Customers, in accordance with these Terms of Use. MiStable retains the sole and absolute right to terminate any Account and prevent any access and use of the Service if MiStable determines that such termination or prevention is appropriate for any reason. MiStable shall not be liable to Customers for any loss or damage incurred by anyone, howsoever incurred, as a result of the termination of any Account or the prevention of or from, or access to or from use of the Service.

3.2 Customers acknowledge and accept that the Service:

  1. is a content service that includes the provision of web sites (including the Website) and web applications;
  2. is designed for informational purposes only and that Customers participate at their own risk;
  3. may be used for personal use only, and must not be provided to any third party, nor used for any business purpose or any purpose that involves commercial endeavour or outcome;
  4. must not be transmitted, retransmitted, broadcast, or made available to the public or to any other person;
  5. must not be relied on or used by Customers in connection with any gambling, wagering, betting or betting service or in a manner which could result in loss, damage, injury or harm to the Member or to any person or property (whether directly or indirectly);
  6. provides Content which is in most cases based upon Third-Party Content, whether uploaded to the Service in real-time or otherwise, and that it is not intended that any Content provides nor is to be taken as providing an authoritative, conclusive or neutral view or review on any matters addressed in such Content;
  7. that Content may not be free from errors and defects, that it may not be correct or accurate and that it may not be possible to determine whether it is correct or accurate;
  8. that Content may provide or be intended to provide or express an opinion or view that is held by the person providing or expressing or giving it without intended or wanting any other person to rely on it in any way whatsoever;
  9. uses and relies on Third-Party Content that is provided to MiStable which is, in most cases, beyond MiStable's capability and ability to verify or screen, and that the mere availability of any Third-Party Content, including any Content containing such Third-Party Content, via the Service has not been, nor should not be taken as if MiStable has verified or endorsed such Third-Party Content;
  10. is provided 'as is' without taking into consideration the individual circumstances of Customers such that it may offer differing capabilities or benefits to different Customers, and MiStable provides no warranties that the Service will offer Customers equivalent, similar or consistent capabilities or benefits to all Customers;
  11. is provided by MiStable to Customers subject to their irrevocable and unconditional undertaking to provide the continuous warranties in clause 5 below when using the Service; and
  12. is continually being modified and improved by MiStable such that there is no guarantee or warranty that the Service will be always be available to Customers or remain unchanged or that the Service will contain any specific or general characteristics.

3.3 MiStable may undertake Maintenance whenever it deems appropriate. No representation or warranty is made whatsoever as to availability or reliability of the Services. MiStable will endeavour to issue a notice on the Website prior to Maintenance however MiStable neither undertakes nor warrants that it will issue such notice in respect of any Maintenance.

3.4 Member acknowledge and agree that MiStable may, without notice to the Member, monitor the activity of the Member on the Service or Website and the locations from which the Service or Website is accessed for the purposes of monitoring the Member's use of the Service and compliance with these Terms of Use.

3.5 Member releases MiStable from any and all loss or liability, costs, claims or expense in respect of any matter arising from or associated with, the various disclaimers and other matters referred to in clause 3.2, or to which clause 3.2 gives rise or applies, and further releases and discharges S MiStable from all proceedings, claims and other actions in respects thereof.

4. MEMBER ACCOUNTS

4.1 Customers agree and undertake that when establishing and whilst maintaining an Account, the Member will provide all the information required by MiStable to enable the Member to operate and maintain the Account.

4.2 By subscribing to the Service and establishing an Account, the Member irrevocably and unconditionally agrees to abide by the terms and conditions of the Terms of Use and acknowledges and agrees that:

  1. the Member must ensure that all of the information the Member provides to establish an Account or in updating an Account is and will be accurate, reliable, true and complete at all times;
  2. the Member must not allow any other unauthorised third party to have access to the Account or to use the Service for any reason, and will actively takes steps to prevent any unauthorised third party from doing such, the Member must notify MiStable immediately if it becomes aware of any unauthorised use of the Account or Service;
  3. the Member will not cause or allow the Account to be leased, sold, transferred to or operated by another person, whether for money or other valuable consideration or gratuitously;
  4. the Member assumes full responsibility for maintaining the confidentiality of its Account, including any username and password required for accessing, operating or maintaining the Account;
  5. MiStable is not responsible for any losses the Member incurs due to informational or technical errors in the Account establishment process, and will not be liable for any loss or damage the Member incurs as a result of an unauthorised person using the Account, including the use of any Account information;
  6. MiStable reserves the right to edit or delete any Account information, including material related or uploaded to an Account, without notice and liability to the Member, in the event that any such information, as determined by MiStable in its sole and absolute discretion, violates the Terms of Use, or if MiStable deems it is appropriate to edit or delete such material pending investigation of any such violation; and
  7. MiStable reserves the right to suspend or terminate any Account, without notice and liability to any Member, in the event that the Member to which the Account relates has violated the Terms of Use in any respect, as determined by MiStable at its sole and absolute discretion, or if MiStable deems it appropriate pending investigation of any such violation.

5. MEMBER UNDERTAKINGS, REPRESENTATIONS AND WARRANTIES

5.1 In using the Service, Customers represent, warrant and undertake as follows:

  1. they have read and understood the content of the Terms of Use and accepts that it comprises a binding, legal agreement between the Member and MiStable and governs the Member's use of the Service;
  2. if the Member is an individual — the Member is at least 18 years of age and there is no reason it is aware of in law that prevents the Member from accepting or performing its obligations in these Terms of Use;
  3. if the Member is a company or other corporate entity or government agency — the Member has all the necessary rights and powers to enter into the Terms of Use, and there is no reason the Member is aware of in law that prevents the Member from accepting or performing its obligations in the Terms of Use;
  4. not to use the Service, including any Content and Third-Party Content, for any purpose that is contrary to that which MiStable intends the Service to be used, as disclosed in the Terms of Use, or for any purpose that MiStable regards as unlawful, fraudulent, misleading or deceptive, unconscionable, defamatory, obscene, harassing or otherwise has the effect or result or likelihood of infringing the legal rights of a third party or preventing a third party from fulfilling their legal obligations;
  5. not to use the Service including any Content, in breach of any legislation or regulation at all, to include, without limitation, relevant legislation and regulation concerning and governing gaming and the horse racing and horse training industries;
  6. not to use the Service in a manner that is considered unreasonable, abusive or excessive by MiStable or in a way that adversely affects the functionality and/or capacity of the Service;
  7. not to impersonate or pretend to be any other person, or to represent that it holds or possesses any other identity, qualification, competency, knowledge or property which it does not genuinely hold or possess;
  8. not to use the Service including any Content which in the reasonable opinion of MiStable might adversely affect the business or brand or reputation of MiStable, or which might bring MiStable or any related entity of MiStable into disrepute, contempt, scandal or ridicule;
  9. that it is their sole responsibility to exercise their own judgment and/or to obtain independent verification or advice before relying upon any Content or Third-Party Content available via the Service including, without limitation, in circumstances where loss or damage may result, howsoever arising, and that Customers must not look to MiStable for compensation in respect of any losses or damages, howsoever incurred, that the Member incurs in reliance on any Content or Third-Party Content;
  10. that in respect of any Third-Party Content that is provided by the Member to MiStable:
    1. all such Third-Party Content will be complete, reliable, accurate, valid and current;
    2. all such Third-Party Content which incorporates an opinion, judgment or belief shall represent an opinion, judgment or belief (whatever the case may be) that is genuinely held by the Member;
    3. no Third-Party Content contains content which is otherwise unlawful, fraudulent, misleading or deceptive, unconscionable, defamatory, obscene or otherwise has the tendency of infringing the legal rights of a third party, including rights of confidentiality or trade secrets;
    4. the Member warrants that the Member is able to confer a royalty-free unconditional licence to MiStable to use that Third-Party Content in accordance with the Terms of Use and accepts that by virtue of this clause, the Member shall confer a royalty-free unconditional licence to MiStable to use that Third-Party Content in accordance with the Terms of Use;
  11. the Member will pay the Fees and any other monies due to MiStable as and when they are due;
  12. the Member will comply with any Policies issued by MiStable from time to time;
  13. the Member will not sell, transfer, assign, sub-licence or charge any right or license hereunder to a third party and will comply with any other terms and conditions in relation to the Licence as set out in the Terms of Use;
  14. the Member will not publish or reproduce any Confidential Information of MiStable in any form, including without limitation on or in the Service or Website or on any external websites unaffiliated with MiStable or in any print medium, without the prior written permission of MiStable;
  15. it is the Member's responsibility to ensure its own compliance with all applicable laws when using the Service, and MiStable disclaims any responsibility and liability for the Member's compliance to the full extent permitted by law;
  16. not to use the Service as a means to facilitate a gambling or other betting transaction or service either as a Wagering Operator or otherwise;
  17. not to use the Service as a means to generate profits or revenue in respect of a commercial endeavour;
  18. not to rely on the Service in any circumstances where a reasonable person in the Member's position, having the same knowledge and information as the Member at the relevant time, would not have relied on the Service due to any suspected reliability or validity issues affecting the Service (whether wholly or part thereof) for any reason; and
  19. not to violate (or attempt to violate) any security features of the Service or Website, including, without limitation by: (i) accessing content not intended for the Member; (ii) attempting to probe, scan, or test the vulnerability of the Service, Website or any associated system or network, or to breach any security or authentication measures; (iii) interfering or attempting to interfere with the Service to any Member, host or network or third party provider, including, without limitation, by means of submitting a virus, overloading, "flooding," "spamming," "mail bombing," "hacking", "crashing" or "denial of service" attacks; (iv) using the Service to send unsolicited e-mail, including, without limitation, promotions or advertisements for products or services; (v) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting; or (vi) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by MiStable, including the Intellectual Property.

5.2 Customers acknowledge and agree to be responsible for all losses and damages which the Member incurs, howsoever incurred and whether incurred directly or indirectly, as a result of using the Service generally or Website in contravention of the matters in clause 5.1 above.

5.3 Customers must indemnify MiStable against all proceedings, loss, damage, costs, claims and expenses caused by or arising out of any infringement or breach of the representations and warranties set out in clause 5.1 above or that arises under clause 5.2 above, or any other breach by Member of these Terms of Use, howsoever incurred and whether incurred directly or indirectly, including losses and damages of its officers, employees, agents, partners and other third parties who could be reasonably expected to suffer loss and damage as a result of such acts

5.4 In addition to clauses 5.2 and 5.3 above, Customers acknowledge and agree that if they do any acts or aid, abet, encourage or facilitate another person to do acts in contravention of the matters in clause 5.1 above, the Member itself shall be liable to indemnify MiStable for all losses and damages which MiStable incurs, howsoever incurred and whether incurred directly or indirectly, including losses and damages of its officers, employees, agents, partners and other third parties who could be reasonably expected to suffer loss and damage as a result of such acts.

5.5 Customers further acknowledge that the publication of Third-Party Content on the Service generally including via the Website may result in unauthorised, unintended or undisclosed third parties having access to such Third-Party Content who may use such Third-Party Content to the detriment of the Member. Customers agree that they must not look to MiStable for any compensation in respect of any loss or damage they have incurred, howsoever incurred and whether directly or indirectly incurred, as a result of the misuse of any Third-Party Content by a third party.

6. FEES & CHARGES

6.1 Customers acknowledge and agree that MiStable may at any time introduce, charge or vary any Fees relating to the provision and use of the Service by Customers in whatever manner it deems appropriate. MiStable will provide at least one (1) months' notice to Customers, using any method it deems appropriate, of any proposed introduction or variation of any Fees in respect of the provision of the Service to Customers and the Member will have been deemed to have accepted such Fees if it does not notify MiStable to the contrary or cancel its Account and cease use of the Service after the relevant notice period. For the avoidance of doubt, any increase in Fees shall not apply in respect of the period for which Fees have already been paid as at the date when the increase takes effect but shall apply to any future period(s).

6.2 For the avoidance of doubt, where MiStable has issued a notice under clause 6.1 above and a Member does not respond or otherwise take any other action which evinces its acceptance or refusal of the matters in such notice, MiStable may, if it deems appropriate, suspend the Customers' use of the Service, including doing any associated matters necessary, instead of charging or debiting the Fees from the Member.

6.3 In addition to the matters in clause 6.1 above, Customers acknowledge and agree that:

  1. they shall not be granted access to or entitled to commence or continue to use of the Service until it has paid to MiStable the relevant Fees that are payable in respect of such access and/or use of the Service and such Fees must be paid by the time and in the manner as set out in these Terms of Use or as advised by MiStable in any notice it issues to the Member;
  2. if MiStable requires Customers to pay Fees in respect of the use of the Service, such Fees will be payable in monthly advances by direct debit unless otherwise advised by MiStable;
  3. any paid Fees will not be refunded where the Member indicates that it wishes to close or terminate the Account or cease using the Service, for whatever reason;
  4. MiStable will not refund any Fees in the event that the Member does not make use of the Service for whatever reason;
  5. MiStable will not refund any portion of the Fees in the event that access to the Service is temporarily suspended from operation for whatever reason;
  6. time is of the essence for all payments due under the Terms of Use; and
  7. all payments due and payable to MiStable under the Terms of Use must be paid to MiStable in fully cleared funds, without setoff or counterclaim.

6.4 Customers acknowledge and accept that should the Fees not be paid on time, MiStable reserves the right to suspend or terminate the Member's Account and suspend the provision of the Service to the Member without notice to the Member until any arrears have been received by MiStable. For the avoidance of doubt, MiStable may exercise any other right under these Terms of Use at any time if the Account Fees are in arrears after seven (7) days of the date on which they are payable to MiStable and MiStable shall not be liable for any loss or damage, howsoever arising, the Member incurs as a result of such exercise.

7. WARRANTIES, DISCLAIMERS AND INDEMNITIES

7.1 Customers irrevocably and unconditionally acknowledge and accept the following in using the Service or Website:

  1. that MiStable provides the Service and Website on a purely 'as is' basis without warranty of any kind and, to the maximum extent permitted by law, MiStable expressly disclaims any and all liability and any warranties or guarantees, express or implied, regarding the Service and/or Website, including, but not limited to, any implied warranties or guarantees of acceptable quality, fitness for a particular purpose or non-infringement of third party rights not otherwise disclosed in the Terms of Use;
  2. that to the maximum extent permitted by law, MiStable shall not be liable in any circumstances for any loss or damage howsoever incurred by a Member as a result of the Member using or relying upon the Service in a manner contrary to these Terms of Use;
  3. that to the maximum extent permitted by law, MiStable shall not be liable in any circumstances for any loss or damage howsoever incurred by a Member as a result of the Member's use of the Service for any commercial purposes, including use of the Service in the course of providing commercial services to a third party for consideration, and the Member shall not represent to any third party that the Service has any features, capabilities or otherwise operates at a level contrary to the Terms of Use;
  4. Unless expressly notified otherwise, MiStable makes no warranties or representations as to the completeness, reliability, accuracy, validity or currency of any Content, including any Content which incorporates Third-Party Content, and the Member bears all losses and damages suffered as a result of acting in reliance on any Content to the extent beyond which the Service is intended as disclosed by the Terms of Use;
  5. that in providing the Service, MiStable reserves the absolute right to revise, alter, redact, modify or remove any Content and Third-Party Content without notice or liability to the Member;
  6. that MiStable assumes that any Third-Party Content MiStable receives will be complete, reliable, accurate, valid and current, and that such Third-Party Content contains no content which is otherwise unlawful, fraudulent, misleading or deceptive, unconscionable, defamatory, obscene or otherwise has the tendency of infringing the legal rights of a third party or the tendency of preventing a third party from fulfilling their legal obligations, and MiStable shall not, to the maximum extent permitted by law, be liable in any circumstances for any loss or damage howsoever incurred by the Member in relation to any such Content which incorporates Third-Party Content;
  7. in relation to Third-Party Content which are links to or from the Website or Service, MiStable should not be treated as having verified or endorsed the content appearing on any website ("Linked Websites") to which such link relates and it is the sole responsibility of Customers to exercise their own judgment when navigating to and/or relying on any content appearing on the Linked Websites;
  8. in relation to the Linked Websites, MiStable should not be construed as being affiliated, associated or being in a relationship of sponsorship with any provider, owner, manager or controlled of the Linked Websites unless otherwise notified by MiStable, and Customers must look solely to the provider, owner, manager or controlled of the Linked Websites in respect of any losses or damages incurred by the Member in respect of the Linked Websites;
  9. that use of the Service and Website may require the Member to comply with various technical requirements, including any hardware, software and firmware requirements, use of modem browser technology to access the internet, an active Internet connection, the configuration of Internet browser settings or allowing the use of "cookies" or "flash" content, and it is the Member's responsibility to ensure that it complies with any and all such technical requirements, and MiStable shall not be liable in any way for any losses or damages suffered by the Member as a result of the Member failing to comply with the matters in this clause;
  10. that to the maximum extent permitted by law, MiStable does not warrant that the Website or the Service will meet the Member's requirements or that the use of the Service will be uninterrupted or error-free including for the reason that MiStable may be required to perform Maintenance and because use of the Service may depend on the availability and reliability of any computer network;
  11. that MiStable may provide support services intended to assist a Member in using the Service (the "Support Services"), however, any Support Services shall be provided at the sole discretion of MiStable and it is the Member's sole responsibility to assess and review whether the Support Services are suitable for its purposes such that the Member shall bear all the costs and damages it incurs by acting in reliance on the Support Services;
  12. that to the maximum extent permitted by law, MiStable is not responsible for any inability or delay in providing the Service for any reason which is outside MiStable's immediate control, including the occurrence of a Force Majeure Event, interruption to any telecommunications or data network or any prevention or compulsion by law which was reasonably unforeseeable at the time the Member subscribed to the Service, and to the extent such inability or delay is attributable solely to the acts or omissions of the Member (including causes attributable to a Compatible Device or any electronics device required to operate a Compatible Device), MiStable shall not be taken to have breached the Terms of Use in respect of such inability or delay; and
  13. that MiStable does not warrant that the Service or Website will be available for use free of technical or functional errors, including the presence of "viruses", "Trojans", "spyware", "adware", "bots" and other similarly harmful computer effects, and any losses or damages the Member suffers as a result thereof, or because MiStable has chosen to temporarily or permanently suspend operation of the Services, or the Website, is a risk borne by the Member and the Member releases MiStable from any and all claims in respect thereof.

8. INTELLECTUAL PROPERTY

8.1 Customers acknowledge and agree in respect of the Content:

  1. all Content is made available for use by the Member on a limited, non-transferable and non-exclusive licence from MiStable for the purpose of enabling the Member to enjoy the benefits of the Service in accordance with the Terms of Use;
  2. the Member will only use the Content in connection with the intended purpose and use of the Service as disclosed in these Terms of Use; (c) MiStable retains full and complete title and interest to the Content including all Intellectual Property Rights;
  3. the Member does not acquire any right, title or interest (including any Intellectual Property Rights) in any Content under any circumstances; and
  4. the Member must not copy, license, sell, distribute, communicate to the public, store or reproduce the Content by any means other than as expressly allowed pursuant to the Terms of Use.

8.2 Customers acknowledge and agree that MiStable does not purport to confer on the Member any right, title or interest in any Third-Party Content greater than that which is necessary for the provision of the Service by MiStable to the Member, nor does MiStable purport to possess any right, title or interest in any such Third-Party Content greater than that which MiStable otherwise possesses under the Terms of Use or under the general law.

8.3 The Member acknowledges and agrees that the mere access or availability of the Third-Party Content to the Member in connection with the Service shall not be an inference that MiStable has any relationship, affiliation or association with the author of the Third-Party Content.

9. CONFIDENTIALITY

9.1 Each party undertakes to keep confidential any Confidential Information relating to the other party which it obtains under or in connection with the Terms of Use and not to use such information or disclose it to any other person, other than as permitted under this clause 9.

9.2 The restriction contained in this clause 9 shall continue to apply for the term of the Terms of Use and for a period of 3 years after the expiry or termination of the Terms of Use.

9.3 Each party may disclose any Confidential Information which relates to the other party to:

  1. any of its directors, employees, advisers and agents who need to know the Confidential Information;
  2. where necessary for the provision of the Services, including to any subcontractor or related entity of of MiStable; or
  3. provided that such information is disclosed solely for the purposes of the Terms of Use and provided that the disclosing party ensures that such recipient executes a confidentiality undertaking in favour of the other party on terms which are no less restrictive than those set out in this clause 9.

9.4 Clause 9.1 shall not apply to the disclosure of Confidential Information:

  1. with the consent of the person to whom the information relates; or
  2. if and to the extent:
    1. equired by law; or
    2. required by any competent regulatory authority or recognised stock exchange; or
    3. that such information is in the public domain other than through breach of this clause.

10. TERMINATION & SUSPENSION

10.1 If at any time a Member intends to withdraw from the Service and terminate the Terms of

Use, it must give notice of such to MiStable and/or utilise any feature on the Service conducive to such withdrawal and termination. For the avoidance of doubt, the Member may communicate its notice in this clause 10.1 in any manner allowed by MiStable for receiving notices. Furthermore, the Member must take immediate steps to cease using the Service and close its Account. The Member shall not be entitled to a refund of any Fees paid to MiStable if the Member exercises the right in this clause 10.1.

10.2 Customers acknowledge and accept that MiStable may terminate or suspend the provision of the Service to a Member, including the cancellation of the Member's Account and/or the prevention of the Member from accessing the Service, if the Member breaches any term or condition of the Terms of Use, including any of the warranties and undertakings in clause 5 above, or in the event that MiStable suspects that the Member has or might breach any term or condition of the Terms of Use, or any Member is using Services contrary to these Terms of Use. In the event that MiStable exercises its rights under this clause 10.2, the Member is not entitled to recover from MiStable any compensation (including the refund of any Fees paid) or other remedy in respect of any loss or damage (however so arising) which the Member incurs as a result thereof.

10.3 Customers acknowledge and accept that should its use of the Service be terminated in

accordance with clause 10.2 above or pursuant to any other right MiStable may have under the general law or pursuant to this Terms of Use, it must not subscribe for another Account or continue to use the Service and such termination shall be deemed to terminate the Terms of Use. For the avoidance of doubt, this obligation in this clause 10.3 survives the termination of the Terms of Use.

10.4 In the event of the occurrence of any Force Majeure Event, the time for performance required by a party under this Terms of Use will be extended for any period during which performance is prevented by the Force Majeure Event.

10.5 Customers acknowledge and accept that MiStable's rights under this clause 10 is in addition to any other rights of termination or suspension it may have in the Terms of Use and under the general law, and the exercise of those rights by MiStable shall not be a bar to prevent MiStable from claiming any losses or damages MiStable has suffered, howsoever arising, as a result of the Member's breach of the Terms of Use (whether or not such claim arises pursuant to the Terms of Use or under the general law).

10.6 The parties acknowledge and agree that notwithstanding anything in the Terms of Use that regulates the termination or suspension the provision of the Services, any rights, obligations and liabilities that have accrued under the Terms of Use prior to the termination or suspension shall remain unaffected.

11. DISPUTE RESOLUTION

11.1 In the event that a Member feels that a dispute, controversy or claim ("Dispute"), arising out of or in connection with the Service or the Terms of Use, including any question regarding its existence, validity or termination, has arisen, the Member must comply with the following complaint procedure before commencing any legal proceedings or seeking any other remedy against MiStable:

  1. the Member must first provide full details of the Dispute to MiStable by email to such email address as MiStable may designate from time to time on the Website or otherwise and by mail by registered post and allow MiStable a reasonable amount of time to investigate the Dispute before providing a written response; and
  2. the Member shall assist and cooperate with MiStable during the period when MiStable investigates and assesses the nature of the Dispute.

11.2 Customers hereby indemnify MiStable for all costs associated with dealing with a Dispute if because of the Member's non-compliance with this clause 11, the Member has caused MiStable to incur costs which it would not have incurred or has incurred to a greater extent than necessary had the Member complied with this clause 11.

11.3 To the maximum extent permitted by law, the parties agree that in the event of a Dispute, the Member must not commence any court or arbitration proceedings relating to the Dispute until it has complied with clause 11.1 above to attempt to resolve the Dispute.

11.4 Nothing in this clause 11 prejudices the right of either party to seek urgent injunctive, interlocutory or declaratory relief from a court in connection with the Dispute without first having to attempt to resolve the Dispute in accordance with clause 11.1 above.

12. NOTICES

12.1 Subject to section 12.2 below, all notices, demands, consents or other communications required or permitted to be given under the Terms of Use must be in writing and signed by an authorised signatory ("Notice") and given by personal service, mail (postage prepaid), facsimile (for which proof of sending is retained), by email to the other party's email address (such email address to be the email address the Member provides in the Account) or to be given by such other method as a party may designate to the other party by written notice. A Notice is deemed to be received:

  1. if sent by mail (postage prepaid), 3 business days after posting within Australia to an Australian address or 10 business days after posting by airmail in any other case; and
  2. if sent by facsimile, at the time indicated on the sender's transmission report unless the recipient promptly informs the sender that the Notice was incomplete or not properly received; or
  3. if sent by email, at the time indicated on the sender's email outbox unless the recipient promptly informs the sender that the Notice was incomplete or not properly received,

provided that if a Notice to MiStable is received by MiStable after 5.00pm or on a day which is not a business day, it will be deemed to have been received by MiStable on the next business day.

12.2 Customers acknowledge that MiStable shall be entitled to issue notices in relation to matters relating to the Service by any of the means described in section 12.1 above and/or by means of notices sent via the Service and, in the latter case, such notices will be deemed to have been received at the time of sending.

13. MISCELLANEOUS MATTERS

13.1 If, for whatever reason, a court of competent jurisdiction finds any term or condition in the Terms of Use to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect.

13.2 MiStable shall not be taken to waive the enforcement of any of its rights, whether for past, future or continuing breaches, under the Terms of Use unless made in writing and signed by an authorised representative of MiStable and is only effective in the specific instance and for the specific purpose for which it is given.

13.3 Any failure or delay by one party to compel performance by another party of any of the terms and conditions of the Terms of Use does not constitute a waiver of those terms or conditions, nor does it affect or impair the right of the first party to enforce them against the other party at a later time or to pursue remedies it may have for any subsequent breach of those terms or conditions.

13.4 A single or partial exercise or waiver of a right by a party does not preclude another or further exercise of that right or the exercise of any other right.

13.5 The Terms of Use constitutes the entire agreement between the parties in relation to its subject matter, and replaces and extinguishes all prior agreements, draft agreements, arrangements, undertakings or collateral contracts of any nature made by the parties, whether oral or written, in relation to such subject matter.

13.6 Each party acknowledges that in entering into the Terms of Use it is not relying on, and shall have no rights or remedies (whether in tort, under statute or otherwise) in respect of any statements, collateral or other warranties, assurances, undertakings or representations (whether innocently or negligently made) by the other party to the Terms of Use.

13.7 Nothing in the Terms of Use shall exclude or restrict the liability of either party arising out of fraud, fraudulent misrepresentation or fraudulent concealment.

13.8 In the event there is any inconsistency between the Terms of Use and any other information appearing on the Website, or any other material accessible, available or observable on the Website and published by MiStable (including any "FAQs"), then subject to clause 2.2 of these Terms, the Terms of Use shall prevail.

13.9 A Member may not assign, dispose of or otherwise transfer the Terms of Use or any rights or obligations under the Terms of Use without the prior written permission of MiStable. To the maximum extent permitted by law, MiStable may freely assign, dispose of or otherwise transfer the Terms of Use or all or any part or parts of its rights to any third party, and in the event of such assignment or transfer the Member undertakes to fulfil all of its obligations under the Terms of Use to such assignee or transferee.

13.10 The Terms of Use shall be construed in accordance with and governed by the laws of the New South Wales, Australia, the Courts of which shall have jurisdiction in respect of disputes arising out of or related to the use of the Service, the Website or the Terms of Use.

Privacy Policy

1. Application of this Policy

This is the policy (the "Privacy Policy") of 99 Digital Pty Limited (ACN: 603 806 551) t/as MiStable ("MiStable" or "us" or "we" or "our") which sets out MiStable's policies and procedures regarding the collection, use and disclosure of information generally. This Privacy

Policy is intended to apply, in addition to MiStable's Terms of Use, to anyone (also referred to as "you" or "our" below) who uses any services offered by MiStable. This Privacy Policy was last updated on the "last modified date" below and is effective from that date. MiStable will adhere to its obligations in respect of your personal information to the extent permitted under this Privacy Policy and in accordance with applicable law, including, without limitation, the Privacy Act 1988 (Cth).

It is your responsibility to ensure that you understand this Privacy Policy. If at any time you do not agree with any of it, you must cease using any service offered by MiStable and/or notify us of such (see "Contact" section below). The Privacy Policy may be modified from time to time in our sole discretion, so we recommend that you check the Site regularly for any updates. We will notify you of any changes by posting a new Privacy Policy and updating the "last modified" date below.

If you have any questions or concerns, please contact us (see "Contact" section below).

2. What Personal Information does MiStable Collect?

The types of personal information MiStable collects depends on your dealings with us. We primarily collect and store information when you provide it to us voluntarily — this may be in the form of directly supplying the information to us, or indirectly by simply navigating to and browsing our website(s). We may collect personal information from you when you:

If you participate in one of our services, the personal information we collect may include:

If you are a MiStable User, we recommend that you guard and refrain from disclosing any information you consider sensitive and confidential.

3. Why MiStable Collects, Holds, Uses and Discloses Personal Information

We need to collect personal information so that we can provide our products and services, and conduct our business, including but not limited to the following:

  1. to allow you and others to become a MiStable User and to use the MiStable Service;
  2. for research, marketing and analysis;
  3. to assist our internal administration and operations;
  4. to allow us to better understand your use of our products and services;
  5. to enable us in acting as a contracted service provider to other businesses

4. How does MiStable use Personal Information?

We use your personal information (in some cases, in conjunction with your "Non-Identifying Information" see below) to provide services to you. For example:

  1. We create your account for your use of the MiStable Services based upon the personal information you provide.
  2. To maintain and administer any profiles, news threads, forum articles, blogs or other commentary created by you via the MiStable Service.
  3. To provide support services to you in respect of the MiStable Service and to help us respond to your questions and/or inquiries.

We also collect other information that you provide as part of establishing an account and using the MiStable Service that cannot reasonably be used to identify or contact you (including, without limitation, usage statistics and certain Content provided to MiStable) ("Non-Identifying Information"). Certain Non-Identifying Information would be considered a part of your personal information if it were combined with other identifiers (for example, your location information) in a way that enables you to be personally identified or contacted. But the same pieces of information are considered Non-Identifying Information when they are taken alone or combined only with other Non-Identifying Information (for example, your book/game preferences). We may combine your personal information with Non-Identifying Information and aggregate it with information collected from other MiStable Users to attempt to provide you with a better experience, to improve the quality and value of the MiStable Service and to analyse and understand how the MiStable Service is used. We may also use the combined information without aggregating it to serve you specifically, for instance to deliver a product to you according to your preferences or restrictions.

When you provide information from or link to any SNS service in connection with your use of the MiStable Service, you may be sharing or using the personal information you have already provided to the SNS (such as your "real" name, email address and other information you make publicly available via the SNS); the information we collect may depend on the privacy settings you have with the SNS, so please consult the SNS's privacy and data practices. If you do not want us to continue to use your name or other personal information, please let us know using the contact details in the 'Contact' section below or follow any procedure advised to you by MiStable.

5. Will your Personal Information be given to anyone else?

MiStable does not sell, rent or trade personal information about you to third parties. Personal information may be disclosed outside of MiStable in the circumstances described below:

  1. We may disclose your personal information to outside contractors to carry out specialised activities on our behalf. In particular, contractors may provide us with a range of administrative, information technology and other services.
  2. We may employ third party companies and individuals to facilitate our services, to provide the service on our behalf, to perform related services (e.g. maintenance services, database management, web analytics and improvement of service features) or to assist us in analysing how our services are used. These third parties have access to your personal information only to perform these tasks on our behalf and are obliged not to disclose or use it for any other purpose.
  3. Your personal information, which may be included in any Third-Party Content or Content, may be disclosed or published on a MiStable Service for third parties, including other MiStable Users, to access and view if you choose to upload, provide or allow such personal information to be disclosed or published. This includes cases where you upload various personal information about yourself that we reasonably infer based on the circumstances that you intend for it to be disclosed or published. It is your responsibility to find out and understand the consequences of uploading or providing any personal information to our website or a MiStable Service, including taking your own precautions to protect your privacy.
  4. We may alter, modify, amend or redact your personal information prior to disclosing or publishing it on a MiStable Service if we feel this is appropriate in the circumstances. We will endeavour to not disclose or publish more personal information than is necessary for the purposes to which is was provided or uploaded, however, it is ultimately your responsibility to exercise your own judgment regarding what or how much personal information you should provide or upload as there is always a risk that an unauthorised third party may obtain access to such information and use it inappropriately.
  5. We may disclose personal information if this is required by law or permitted under the Privacy Act 1988 (Cth).
  6. We may share aggregated information that does not include personal Information and we may otherwise disclose Non-Identifying Information and Log Data (see 'Online Privacy Issues' section below) with third parties for industry analysis, demographic profiling and other purposes. Any aggregated information shared in these contexts will not contain your personal information.

Other than as specified in this policy, no personal information will be provided to a third party without your consent. However, MiStable cannot control, and will not be liable, for any use of your personal information by any third party to whom your information is sent with your consent

6. Direct Marketing

We may use your personal information to contact you via newsletters, marketing or promotional materials and other information that we believe may be of interest to you. If you decide at any time that you no longer wish to receive such communications from us, please follow the unsubscribe instructions provided in any of the communications, update your "preferences" information in your account settings (if applicable) or contact us using the contact details below. If you make such a request we will respond as soon as practicable and will make all reasonable efforts to promptly change your preferences to opt out of receiving future direct marketing communications.

7. Online Privacy Issues

You have several choices regarding the use of information on our services:

  1. Cookies. Like many sites, we use "cookies" to collect website usage data. A cookie is a small data file that is transferred to your computer's hard disk. There are session cookies and persistent cookies — we may use both so we can better understand how you interact with MiStable and to monitor web traffic routing with the aim of improving the MiStable Services. Most Internet browsers automatically accept cookies, however you can instruct your browser (via the options section) to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit, however, doing so may mean you will not be able to use all or parts of the MiStable Service.
  2. Social Networking Sites. We may share SNS-related information in your account (including your Personal Information) or that you otherwise provide to us as part of your use of the MiStable Service. You should always check with the relevant SNS regarding how they protect your privacy. It is your responsibility to exercise your own judgment when providing SNS-related information as there is always a risk that an unauthorised third party may obtain access to such information and use it inappropriately.
  3. Changing or Deleting Your Information. You may review, update, correct or delete the personal information in your account (including any imported contacts) by contacting us if no such function exists in the MiStable Services. If you completely delete all of your personal information, then your account may become deactivated. We will use commercially reasonable efforts to honour your request for deletion in that case. We may retain an archived copy of your records as required by law or for legitimate business purposes.
  4. Log Data. When you visit the MiStable Service, our servers automatically record information that your browser sends whenever you visit ("Log Data"). This Log Data may include information such as the browser type or the webpage you were visiting before you came to our service, pages of our service that you visit, the time spent on those pages, information you search for on our service, access times and dates, and other statistics. We use this information to monitor and analyse use of the service and the service's technical administration, to increase our service's functionality and user-friendliness, and to better tailor our services to our users' needs.
  5. Links. Our services contain links to other third-party websites and online services. If you choose to visit another website or online service by clicking on a link, you will be directed to that third party's website or online service. The fact that we may link to a website or online service is not an endorsement, authorisation or representation of our affiliation with that third party, nor is it an endorsement of their privacy or information security policies or practices. We do not exercise control over third party websites and online services, and these third parties may place their own cookies or other files on your computer and collect data or solicit personal Information and non-identifying information from you. Other sites and online services follow different rules regarding the collection, use and/or disclosure of personal information and non-identifying information. We encourage you to read the privacy policies or statements of the other websites or online services you visit before providing any information or using such websites or services.

8. Security of Information

We will take all reasonable steps to ensure the security of your personal information, Content and/or Third-Party Content from misuse and loss, and from unauthorised access, modifications or disclosure as required under the Privacy Act 1988 (Cth). We care about the security of your information. We use commercially reasonable safeguards to preserve the integrity and security of information collected and maintained from misuse or loss. However, we cannot ensure or warrant the security of any information or Third-Party Content you provide to us or guarantee that information or Third-Party Content may not be accessed, disclosed, altered, or destroyed by unauthorised persons. We do not warrant that any of our systems will be without error or interruption, or will be free from unauthorised or fraudulent third party access as a result of the nature of Internet transmissions.

9. How can you access or amend your stored Personal Information?

We will take reasonable steps to make sure that the personal information we collect, use or disclose is accurate, complete and up to date. If your contact details change we encourage you to let us know (see "Contact" section below). Following a request, we will provide you with a copy of the personal information we hold about you in accordance with our obligations under the Privacy Act 1988 (Cth) — to make a request, please see "Contact" section below. We will use reasonable endeavours to respond to your request within 14 days of receipt of your request. We may charge a fee for providing you with that information, in which case we will inform you of the fee in advance of providing the information.

You may also request us to update, correct or amend personal information that is inaccurate, incomplete or out of date — to make a request, please see "Contact" section below. We will use reasonable endeavours to amend your records as requested within 14 days of receipt of notice.

10. How can you submit a Complaint relating to your Personal Information?

If you are concerned with how we collect, store, use or disclose your personal information, you may make enquiries or submit a formal complaint to us (see "Contact" section below). We will use reasonable endeavours to address your enquiry or complaint and will endeavour to respond to you within 14 days of receipt of your initial enquiry or complaint.

If you feel your enquiry or complaint has not been adequately addressed by us, you may contact the Office of the Australian Information Commissioner. However, we would advise you to notify us beforehand of why you feel we have not adequately addressed your enquiry or complaint and allow us an opportunity to respond to you. If you would like any further information about your rights to privacy, please contact or visit the website of the Office of the Australian Information Commissioner at http://www.oaic.gov.au.

11. OUR POLICY TOWARDS MINOR'S INFORMATION

Our products and services are not directed to minors, that is, persons under the age of 18. We do not knowingly collect personally identifiable information from minors. If a parent or guardian becomes aware that his or her child has provided us with personal information without their consent, he or she should contact us at support@MiStable.com. If we become aware that a minor has provided us with personal information, we will delete such information from our files.

12. CROSS-BORDER DISCLOSURE

We may disclose some of your personal information such as your name and email address to organisations located outside Australia, in countries which do not have the same or substantially similar privacy laws, but only to the extent necessary to provide you with the products or services requested by you. It is not practicable to provide you with the names of the countries currently.

13. CONTACT

If you have any questions about this Privacy Policy or any of the practices described herein, if you wish to update information we hold about you, make a complaint, or request a copy or our most current Privacy Policy, or if you are of the view that personal information about you is inaccurate or out of date, p