Terms and Conditions

This “Service” (defined in Section 1 below) is provided by PlayPhone on behalf of Cartoon Network (the "Service Providers"). The following terms and conditions constitute a legal "Agreement" between you and us. YOU SHOULD REVIEW CAREFULLY THE TERMS AND CONDITIONS OF THIS AGREMENT AND YOUR SERVICE PLAN WITH YOUR MOBILE COMMUNICATIONS CARRIER, INCLUDING PROVISIONS GOVERNING YOUR REPRESENTATIONS, OUR RIGHTS TO CHANGE THIS AGREEMENT, TERMINATION, LATE PAYMENTS, PRIVACY AND LIMITATION OF LIABILITY. IF YOU ARE 13 OR OLDER BUT UNDER THE AGE OF 18, YOU SHOULD REVIEW THIS AGREEMENT WITH YOUR PARENT(S) OR LEGAL GUARDIAN(S) TO MAKE SURE THAT YOU AND YOUR PARENT(S) OR LEGAL GUARDIAN(S) UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT.

By accessing our mobile web site or any successor site ("Website") or by accessing our Service via your mobile device by downloading mobile “Content” (as defined in Section 3(e) below) to a mobile device (each a "Download"), you (1) represent that you are at least 13 years of age, (2) represent that you have the consent of the subscriber of a participating mobile communications carrier to sign-up for and use the Service on behalf of the subscriber, and (3) agree on behalf of the subscriber and yourself to be bound by the terms and conditions of this Agreement. USERS UNDER EIGHTEEN (18) YEARS OF AGE REQUIRE PARENTAL PERMISSION BOTH TO COMPLETE THE PURCHASE PROCESS ON THE WEBSITE AND TO DOWNLOAD MOBILE CONTENT.

In this Agreement, "you" and "your" refer to each customer (including the subscriber of a participating mobile communications carrier on whose behalf you are entering into this Agreement), his or her parent(s) and/or legal guardian(s), and his or her agents, and "we", "us" and "our" refer collectively to PlayPhone Inc. ("Company" or "PlayPhone"). This Agreement explains our obligations to you, and your obligations to us in relation to the Service.

You accept this Agreement when you do any of the following: (a) provide your electronic signature; (b) Download Content to your mobile device; (c) use the Content; or (d) pay for the Content, in whole or in part. Unless prohibited by law, we may change any terms of this Agreement at any time in our sole discretion. Any changes to the Agreement are effective when we publish them on the Website. Your use of Content will be governed by the terms and conditions of the Agreement in effect at the time of your applicable Download.

1. DESCRIPTION OF PLAYPHONE SERVICE

Company provides downloadable mobile entertainment Content, such as ringtones, games, graphics, video, news and other applications via the Internet, SMS, MMS, WAP, BREW and other means of mobile content delivery to certain compatible mobile devices (the "Service"). You acknowledge and agree that the Service is for your personal use on the mobile device designated during the Download. You agree that you may not transmit, broadcast, upload to any computer or mobile device, create derivative works of, or make commercial use of the Service, including, but not limited to, any Download(s). You may not, or attempt to (or otherwise authorize, encourage or support others’ attempts to) circumvent, re-engineer, decrypt, break or otherwise alter or interfere with the Service, including, but not limited to, any Download(s).

2. ACCESS TO SERVICE

In order to use the Service, you must have a mobile communications subscription with a participating carrier or otherwise have access to a mobile communications network for which Company makes the Service available as well as any carrier services necessary to Download Content, and pay any service fees associated with any such access. In addition, you must provide all equipment and software necessary to connect to the Service, including, but not limited to, a mobile hand set or other mobile access device that is in working order and suitable for use in connection with the Service. Please review the Website prior to Download to confirm that the mobile Content you select for Download is available for your mobile device. You are responsible for ensuring that your equipment and/or software do not disturb or interfere with Company's operations. Any equipment or software causing interference shall be immediately disconnected from the Service, and Company shall have the right to immediately terminate this Agreement. If any upgrade in or to the Service requires changes in your equipment or software, you must effect these changes at your own expense. Unless explicitly stated otherwise, any new or additional features that augment or enhance the current Service, including the release of new products and services, shall be subject to the terms and conditions of this Agreement.

3. THE SERVICE

(a) You must be at least 13 years of age to use the Service and, if you are not the subscriber, have the consent of the subscriber of the participating mobile communications carrier. USERS UNDER EIGHTEEN (18) YEARS OF AGE REQUIRE PARENTAL PERMISSION BOTH TO COMPLETE THE REGISTRATION PROCESS ON THE WEBSITE AND TO DOWNLOAD MOBILE CONTENT.

(b) Artist names are displayed for informational purposes only.

(c) Mobile Downloads. Company is offering through its Service individual Downloads of selected mobile Content. The Downloads included on the Website are currently being offered by Company. Additional Content and Download plans may be offered at Company discretion.

* Individual Download Service – You will be charged the applicable fee for your Download (as such fee is indicated on the Website) on your mobile phone bill for each Download that you request from the Service.

You will be charged when Company, upon your request, has provided you with access to the Service (such access may be based on a personal username and password generated for that purpose or on other data that Company deems sufficient for your identification). Access to the Service can be provided by delivering to you downloadable mobile entertainment Content of the Content category you subscribed to (e.g., by delivering a ringtone or an info news - SMS) or by enabling you to download the product (e.g., by delivering a WAP-Push link or a PIN for download of the downloadable mobile entertainment Content on Company website) or by providing access to the mobile entertainment Content (e.g., by enabling MSISDN for this product).

(d) For customer support please contact Support or call 1-866-661-2076.

(e) Service and Content. Company, though the Website, permits you to purchase a non-exclusive, revocable, non-transferable, non-assignable, personal, limited license to:

(i) download digital content, such as sound recordings, cellular phone wallpapers, cellular phone screensavers, etc. offered by Company via the Website ("Content"); and

(ii) display or play, as the case may be, such Content on a single cellular phone (a "Device") owned by you in accordance with the terms and conditions as set forth in this Agreement.

By way of clarification, to "purchase" the Content means to purchase the above-referenced license to display or play the Content. You agree that Company, at its sole discretion, may at any time change its Content offering made available through the Service.

(f) Payments and Fees.

(i) Right to Change Prices and Availability of Content. Prices and availability of any Content are subject to change at any time. Please consult the Website for current Content offerings and prices.

(ii) Electronic Signatures and Contracts. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND TO PAY FOR YOUR DOWNLOADS AND PURCHASES. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THE WEBSITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. IF YOU ARE UNDER THE AGE OF 18, YOU UNDERSTAND THAT YOU CAN NOT LATER VOID THIS AGREEMENT AS A MINOR WITHOUT LOSING ACCESS TO YOUR CONTENT AND YOUR PARENT(S) OR LEGAL GUARDIAN(S) BEING HELD RESPONSIBLE FOR ANY PAYMENT OBLIGATIONS YOU HAVE INCURRED WHILE ENJOYING THE BENEFITS OF THE SERVICE AS IF YOU WERE AN ADULT.

(iii) Nonpayment. If, at any time thereafter, you fail to pay any amount under this Agreement when due or are otherwise in breach or default under this Agreement, Company may, in its sole discretion, and without prejudice to its other rights, immediately terminate your use of the Service and revoke your license to the Content. Late payments hereunder will accrue interest at the rate of one and one half percent per month or the highest rate allowed by applicable law, whichever is lower.

(g) System Requirements. Use of the Service requires a compatible computer, compatible Device, Internet access (fees may apply), and certain software (separate fees may apply), and may require obtaining updates or upgrades from time to time. Because use of the Service and Content involves hardware, software, and Internet access, your ability to use the Service and Content may be affected by the performance of these factors. High speed Internet access is strongly recommended. You acknowledge and agree that such system requirements, which may be changed from time to time, are your responsibility. In light of the foregoing, you acknowledge and agree that you will not be entitled to any refund for any fees you pay for the Content if the Content is incompatible with your Device. Please review the Website prior to Download to confirm that the Content you select for Download is available for your mobile device.

(h) Age requirements for use of the Service. This Service is available for individuals aged 13 years or older. If you are 13 or older but under the age of 18, you should review this Agreement with your parent(s) or legal guardian(s) to make sure that you and your parent(s) or legal guardian(s) understand and agree to the terms and conditions of this Agreement.

(i) Interruptions or Discontinuation of Service. Company reserves the right at any time and from time to time to modify, suspend, discontinue or permanently cancel the Service, or portions thereof, with or without notice to you.

(j) Data Charges. You may incur data usage charges from your mobile communications provider. Data charges will vary depending upon your service plan with your mobile communications provider, the amount of data you use while accessing Downloads, and other circumstances surrounding your data use.

4. TERMINATION OF SERVICES

This is not a subscription service. To disable your ability to download Content from the Service send an e-mail to info@playphone.com or contact us at 1-866-661-2076.

You agree that Company, at its sole discretion, may at any time terminate your access to the Service if Company believes that you have violated or acted inconsistently with this Agreement. You agree that upon termination of your access to the Service under any provision of this Agreement, Company may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Service Providers shall not be liable to you or any third party for any termination of your access to the Service. If you cancel your account for any reason, Company will not refund any of your fees paid to date.

5. YOUR RESPONSIBILITIES AND ACKNOWLEDGMENTS

(a) Compliance With Laws, Regulations and Requirements. You will not use the Service or Content for illegal purposes but will abide by and comply with:

(i) all applicable local, state, national, and international laws and regulations in your use of the Service and Content (including laws regarding the transmission of technical data exported from the United States), and

(ii) all requirements, procedures, policies and regulations of networks connected to the Service.

(b) Non-Interference. You will not interfere with or disrupt:

(i) the use and enjoyment of the Service by other users; or

(ii) the Service, the Website or servers or networks connected to the Service or Website (including, without limitation, any attempt to gain unauthorized access to other computer systems or networks connected to the Service).

(c) Resale of the Content. You will not resell the Content or the use of or access to the Service.

(d) Report of Abuse. You will report any violations of the terms of this Agreement by other users of the Service of which you become aware by contacting Company at help@playp.biz

(e) You acknowledge that some of the Content or communications on the Service may be offensive to you or to others who you may expose, deliberately or inadvertently, to the Content or the Service. The Company makes previews of the Content available on the Website, and you agree to be responsible for previewing any Content with which you may be unfamiliar prior to requesting a Download of such Content. You agree that you will be solely responsible for any aspect of the Service and Content that you or others might find objectionable.

6. DOWNLOAD USAGE RULES

You acknowledge and agree that the Download(s) made available as part of the Service are owned by the Service Providers, their affiliates and/or licensors, as applicable, and are protected by intellectual property laws. Company hereby grants, and you hereby accept, a limited, non-exclusive, non-transferable, revocable right and license to download and use the object code version of the Download(s) and the Service on a designated Device solely for your own personal non-commercial use. You further acknowledge and agree that you may not reproduce, modify, perform, transfer, distribute, sell, create derivative works of or otherwise use or make available the Download(s) except as expressly provided in this Agreement. No license is granted to you by this Agreement in the human readable code, known as the source code, of the Downloads, and no rights are granted to you by this Agreement in any patents, copyrights, trade secrets, trademarks or any other rights in respect of the Downloads. This Agreement will terminate immediately, without notice, if you fail to comply with any term or condition of this Agreement. Upon a termination of this Agreement, you agree to immediately remove all Downloads and Content from your Device.

7. COMPANY PROPRIETARY RIGHTS IN CONTENT

All Content, including but not limited to text, software, music, sound, photographs, graphics and video presented and/or licensed to you via the Service, is protected by intellectual property or other proprietary rights and laws. You are permitted to use this material and information only as expressly authorized by Company, and may not copy, reproduce, transmit, distribute, or create derivative works of such Content or information without express written authorization from Company in each instance. The images appearing on the Website and in the offered products are for entertainment purposes only. The images are available for public access through sources regarding matters of public concern. None of the individuals depicted in the images have endorsed or consented to the use of their likeness on the Website or in the offered products.

8. YOUR ACCESS TO VENDORS; THIRD PARTY LINKS; ACCOUNT ACCESS

(a) Third Party Links. Service Providers are not responsible in any way for, and do not guaranty the availability of, any email from or links to third party Web sites and resources which may be accessed through the Website. In addition, Service Providers do not endorse and are not responsible or liable for any content, advertising, goods or services, or other materials available on or from such third party Web sites or resources. Service Providers will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third party content, advertising, goods or services, or other materials on or available from such third party Web sites or resources.

(b) Infringer Policy. If you believe that any material available through the Website infringes upon any copyright you own or control, or that any link on the Website directs users to another Website that contains material that you own or control, you may file a notification of such infringement with Company's Designated Agent. Please refer to the "Copyright Policy" and "Notice and Procedure for Notifying Designated Agent of Claims of Copyright Infringement" set forth on the Company Web site at www.playphone.com.

(c) Intellectual Property Rights. Except as otherwise set forth herein, all right, title and interest in and to any intellectual property, proprietary rights or other rights related to intangible property which are used, developed, comprising, embodied in, or practiced in connection with any of the Service ("Service Provider Intellectual Property Rights") are owned by Service Providers or their licensors, and you agree to make no claim of interest in or ownership of any such Service Provider Intellectual Property Rights. You acknowledge that no title to the Service Provider Intellectual Property Rights is transferred to you, and that you do not obtain any rights, express or implied, in the Service, Downloads or Content other than the rights expressly granted in this Agreement.

9. PRIVACY AND SECURITY

(a) Privacy Policy Application to Online Collection and Use of Personally Identifiable Information. Except as expressly set forth to the contrary in this Section, any collection and use of personally identifiable information collected on web sites where the Cartoon Network Privacy Policy is posted will be in accordance with that privacy policy currently located at http://www.cartoonnetwork.com/help/privacy.html (“Cartoon Network Privacy Policy”) and any collection and use of personally identifiable information collected on web sites where the Adult Swim Privacy Policy is posted will be in accordance with that privacy policy currently located at http://www.adultswim.com/help/privacy.html (“Adult Swim Privacy Policy”).

(b) Offline Collection and Use of Personally Identifiable Information. We do not collect personally identifiable information unless it is voluntarily provided to us. Subject to any restriction imposed by Section 9 and/or applicable law, you on your own behalf and/or as applicable on behalf of your child as a parent or legal guardian of a minor who is using the Service agree to the following: you hereby consent to our collection of all information (including all personally identifiable information) relating to the use of the Service or download of Content by you and/or your child as well as use of such information by the Service Providers and its affiliates for the purposes of sending you, your child, and/or other account members Service-related, promotional and/or marketing communications via email address, billing or physical address, mobile device, and/or the Service. For example, you acknowledge that, in connection with the Service, the Company may collect and process "personal information" (that is, information such as a mobile phone number to purchase content, or e-mail address to access support services). We may pass on this personal information and usage information to your mobile phone service provider, or another payment facility in order to secure collection of fees, and such information collected by the Company may be stored and processed in the United States, or any other country in which the Company or its agents maintain facilities. By you or your child using the Service or downloading the Content, you consent to any such transfer of information outside of your country, and you also consent to the Company using the information collected related to use of the Service or download of Content to contact you electronically, in writing, or otherwise to provide notices relating to use of the Service and to give you information about the products and services offered by the Company and its affiliates. We may disclose personally identifiable information as required by law, legal process such as a court order or a subpoena, or exigent circumstances. We also may disclose such information in response to a law enforcement agency's request, or where we believe it is necessary to investigate, prevent, or take action regarding illegal activities, suspected fraud, situations involving potential threats to the physical safety of any person, violations of our terms of use, to verify or enforce compliance with the policies governing our Terms of Service, or as otherwise required or permitted by applicable law, statute or regulation, or consistent with legal requirements. In addition, we may transfer personally identifiable information about you if we, or one of our business units, are acquired by, sold to, or merged with another company.

(c) Security. We take data security very seriously. We attempt to provide for the secure transmission of information from your computer or mobile device to our servers by utilizing generally accepted encryption software. To prevent unauthorized access and improper use and maintain accuracy, the Website has in place reasonable physical, electronic, and managerial procedures to secure your personal information, financial information, and demographic and usage information. Employees with access to this information are required to follow our security protocols, which provided that such information must be used only for the purpose of providing the Service to you or as allowed under Section 9. The Company periodically reviews and updates as appropriate these information access controls. However, please be aware that despite our security efforts, no security measures are perfect or impenetrable and we cannot guarantee that communications using our Service or between you and the Company will be free from unauthorized access or improper use by third parties. Users of the Website or the Service do so at their own risk.

10. INDEMNITY

You agree to release, indemnify, defend and hold harmless Service Providers, its and their parent companies, subsidiaries, affiliates, officers, directors, shareholders, contractors, agents, employees, licensors and assigns from all liabilities, claims, damages, costs and expenses, including reasonable attorneys' fees, made by any third party due to or arising out of or in connection with (a) your use of the Service, and (b) your violation of any of the provisions of this Agreement, (c) the breach by you of your representations and warranties set forth herein, or (d) any information or data you supplied to Service Providers, including, without limitation, any misrepresentation in your registration data, if applicable.

When Service Providers are threatened with suit or sued by a third party, Service Providers may seek written assurances from you concerning your promise to indemnify Service Providers; your failure to provide those assurances may be considered by Service Providers to be a material breach of this Agreement. Service Providers will have the right to participate in any defense by you of a third party claim related to your use of any of the Service, with counsel of Service Providers' choice at its expense. Service Providers will reasonably cooperate in any defense by you of a third party claim at your request and expense. You will have sole responsibility to defend Service Providers against any claim, but you must receive Service Providers' prior written consent regarding any related settlement. The terms of this Section 10 will survive any termination or cancellation of this Agreement.

11. DISCLAIMER OF WARRANTIES

(a) YOUR USE OF THE SERVICE, DOWNLOADS AND CONTENT IS AT YOUR SOLE RISK. THE SERVICE, DOWNLOADS AND CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE, DOWNLOADS AND CONTENT.

(b) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SERVICE PROVIDERS MAKE NO WARRANTY:

(i) THAT THE CONTENT WILL WORK WITH YOUR DEVICE;

(ii) THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE;

(iii) REGARDING ANY CONTENT PURCHASED OR OBTAINED THROUGH OR FROM THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE; OR

(iv) REGARDING ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OR FROM THE SERVICE (DOWNLOADING OR ACCESS IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH CONTENT).

(c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SERVICE PROVIDERS OR THROUGH OR FROM THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

(d) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

12. LIMITATION OF LIABILITY

(a) SERVICE PROVIDERS’ ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, IN LAW, IN EQUITY, OR OTHERWISE, WITH RESPECT TO ANY SERVICE PROVIDED UNDER THIS AGREEMENT AND/OR FOR ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNT YOU PAID DURING THE TERM OF THIS AGREEMENT.

(b) SERVICE PROVIDERS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE IN ANY MANNTER, INCLUDING LIABILITIES RESULTING FROM

(i) THE USE OR THE INABILITY TO USE THE SERVICE OR CONTENT;

(ii) THE COST OF PROCURING SUBSTITUTE CONTENT AND SERVICE;

(iii) ANY CONTENT OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; OR

(iv) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(c) SERVICE PROVIDERS WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM INTERRUPTION, SUSPENSION OR TERMINATION OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT.

(d) COMPANY WILL NOT BE LIABLE FOR ANY DAMAGE TO YOUR DEVICE OR PERSONAL COMPUTER CAUSED BY THE CONTENT.

(e) SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

13. NOTICES AND ANNOUNCEMENTS

All notices must be sent in writing (including email, but only to the extent expressly provided herein). All written notices to Company shall be delivered to 5300 Stevens Creek Blvd., Suite 460, San Jose, CA 95129, tel. (408) 261-6200, fax: (408) 261-6201. All notices to you will be delivered to your mailing address or email address as provided in your account information (as updated by you pursuant to this Agreement). Company may also provide notices of changes to this Agreement or any other matter by displaying notices to you generally on the Company or Service Provider Web site. Either of us may change Company's respective address by written notice delivered to the other party. All notices delivered in writing hereunder must be sent by either overnight courier or certified mail, return receipt requested.

14. TRADEMARKS

PlayPhone™, the PlayPhone™ logo, and other Company trademarks, service marks, graphics, and logos used in connection with the Service and Content are trademarks or registered trademarks owned by PlayPhone, Inc. in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the Service and Content may be the trademarks of their respective owners, including without limitation, Service Providers. You are granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks. All references to the names and likeness of performing artists on the Website are for promotional purposes only.

15. GENERAL

(a) Entire Agreement. This Agreement comprises the entire agreement among you and Company and supersedes any prior agreements pertaining to the subject matter contained herein.

(b) Effect of Waiver. The failure of Company to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.

(c) Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of California without regard to its conflict of law principles to the contrary. Neither party will commence or prosecute any suit, proceeding or claim to enforce the provisions of this Agreement, to recover damages for breach of or default under this Agreement, or otherwise arising under or by reason of this Agreement, other than in the state or federal courts located in Santa Clara County, State of California. Each party hereby irrevocably consents to the jurisdiction and venue of such courts in connection with any action, suit, proceeding or claim arising under or by reason of this Agreement. Each party hereby waives any rights to trial by jury claim arising out of this Agreement and any related documents.

(d) Heading. The section headings and titles in this Agreement are for convenience only and have no legal or contractual effect.

(e) Force Majeure. Neither party will be deemed in default hereunder, nor will it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, or boycott, provided that the party relying upon this section:

(i) will give the other party written notice thereof promptly and, in any event, within five (5) days of discovery thereof and

(ii) will take all steps reasonably necessary under the circumstances to mitigate the effects of the force majeure event upon which such notice is based; provided further, that in the event a force majeure event described in this paragraph extends for a period in excess of thirty (30) days in the aggregate, Company may immediately terminate this Agreement.

(f) Currently, the Service is only available to residents of the United States and Canada. You understand and acknowledge that you may not sign up for, access, or attempt to access or use the Service from countries outside of the U.S. and Canada. You agree to abide by U.S., Canadian and other applicable export control laws and not to transfer, by electronic transmission, messaging systems or otherwise, any content or software subject to restrictions under such laws to a national destination or person prohibited under such laws.

(g) Assignment and Resale. Except as otherwise set forth herein, your rights under this Agreement are not assignable or transferable. You agree not to resell the Content or any portion thereof.

(h) Survival. Any provision in this Agreement that by its nature should survive the termination of this Agreement shall continue to remain in full force and effect after the termination or expiration of this Agreement (e.g., indemnification, limitation of liability, disclaimer of warranties). I HAVE READ AND UNDERSTAND THE FOREGOING AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.

Last Revised 09/13/07