Updated October 18, 2011

These Mobile First Merchant Terms and Conditions ("Agreement"), is entered into by and between Mobile First Limited and its affiliated companies ("Mobile First," "we" or "us") and you ("you" or "Licensee"), and shall govern the licensing relationship whereby you will be permitted to charge for products and/or services ("Licensee Products") by and through the Mobile First hosted mobile payment service platform ("Mobile First Platform") located within the applicable area of your website(s) and other online venue(s) (collectively, "Licensee Websites"). By submitting your online application to become a Licensee ("Application"), you are confirming that you: (a) have fully read this Agreement; (b) understand all of the terms and conditions of this Agreement; and (c) agree to be fully bound by this Agreement.

1. Enrollment as a Licensee.

1.1 To begin the enrollment process, Licensee must submit a complete and accurate Application. To become a Licensee, you must be an entity or an individual of at least eighteen (18) years of age, with the requisite equipment and Internet connection to access the Site. Mobile First will evaluate your Application and promptly notify you of your Application acceptance or rejection via the email address that you supply as a part of your Application. If any of the information supplied as part of your Application changes, at any time, you must immediately inform Mobile First of same to reflect such changes in your Licensee profile.

1.2 Mobile First may reject your Application and/or terminate your participation as a Licensee at any time and for any reason, in Mobile First's sole discretion. Such reasons may include, without limitation:

A. Where Mobile First believes that you are in any way in breach of this Agreement;

B. Where Mobile First believes that any Licensee Products made available by you on your Licensee Websites are unsuitable for any reason including, without limitation, that the Licensee Products and/or Licensee Websites contain, link to or consist of material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; and

C. Where Mobile First believes that you, at any time, are conducting commercial activities that do not fully comply with all applicable local, state and federal laws, rules and regulations.

2. Mobile First Platform.

2.1 The Mobile First Platform is a hosted mobile payment service that enables consumers that visit certain Licensee Websites to make purchases of Licensee Products by adding the applicable charges for the purchases to a network operator, a third party aggregator or other mobile network connection provider (each a "Network Operator") section of their mobile telephone bills ("Mobile Billed Purchases").

2.2 Upon approval of Licensee's Application, Mobile First shall make a customized piece of HTML code ("Widget Code") available to Licensee for use on those Licensee Websites approved by Mobile First in advance. Licensee must then embed the Widget Code on to those web pages of the pre-approved Licensee Websites where it wishes to utilize the Mobile First Platform. The Widget Code shall create a Mobile First Platform interface ("Interface") that shall enable Mobile Billed Purchases and, in turn, retrieve information necessary to process Mobile Billed Purchases with the applicable Network Operator. Licensee shall be solely responsible for testing the deployment of the Interface on the Licensee Websites. Each Interface, as displayed on the Licensee Websites, shall include all Mobile First branding made available therein, including the Mobile First logo and other Mobile First brand elements (collectively, "Mobile First Marks"). If Licensee lists payment options elsewhere within Licensee Websites, the Mobile First Platform will be listed as an available payment method (and the only mobile billing option).

2.3 Licensee acknowledges and agrees that Mobile First is not affiliated with any Network Operators. Mobile First shall have no obligation to resolve any dispute between Licensee and any Network Operators or third party. Licensee expressly agrees to indemnify and hold harmless Mobile First, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs) arising from any Network Operator, mobile carrier or other third party disputes (other than those caused by Mobile First's breach of this Agreement).

2.4 Licensee acknowledges and agrees that Mobile First is not affiliated with any Network Operators. Mobile First shall have no obligation to resolve any dispute between Licensee and any Network Operators or third party. Licensee hereby accepts and agrees to comply with the Network Operator terms of use set forth at www.mobilefirst.com (the "Site"). Licensee expressly agrees to indemnify and hold harmless Mobile First, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs) arising from any Network Operator, mobile carrier or other third party disputes (other than those caused by Mobile First's breach of this Agreement).

3. Licensee Obligations

3.1 Mobile First may reject the use of the Mobile First Platform in connection with any Licensee Products or Licensee Websites and/or remove the Mobile First Platform and associated Interface from any Licensee Websites wherein it appears at any time and for any reason upon written notice to Licensee, in Mobile First's sole discretion. Licensee must immediately remove the Mobile First Platform and associated Interface after any such request. The reasons for rejection/removal may include, without limitation, where Mobile First believes that: (a) the Licensee Products or Licensee Website; (b) any content appearing on the Licensee Websites; and/or (c) any website, products and/or services linked to from the Licensee Websites (collectively, "Licensee Offerings"), are unsuitable for any reason including, without limitation: (i) the Licensee Offerings consist of, or link to, material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; (ii) that the Licensee Offerings consist of, or link to, material that infringes upon the trademark, trade name, service mark, copyright, license, or other intellectual property or proprietary right of any third party; and/or (iii) where Mobile First believes that the Licensee, at any time, is conducting commercial activities that do not fully comply with all applicable local, state and federal laws, rules and regulations.

3.2 End-user customers that purchase Licensee Products through the Licensee Websites ("Licensee Customers") shall not be deemed to be the customers of Mobile First. Mobile First has no liability or responsibility to review, endorse, police or enforce any such Licensee-Licensee Customer relationship(s). Mobile First shall have no obligation to resolve any dispute between Licensee Customers and Licensee or any third party. Licensee expressly agrees to indemnify and hold harmless Mobile First, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs) arising from any Licensee Customer claims, Licensee Offerings or otherwise through the Licensee Websites.

3.3 Mobile First may use the personal information of a Licensee in any manner consistent with the Mobile First Privacy Policy. For additional information regarding Mobile First's collection and use of information, please refer to the Privacy Policy located at www.mobilefirst.com (the "Site").

4. Licensee Offerings

4.1 Licensee must ensure that it is legally able to sell each Licensee Offering made available on the Licensee Websites, and that it is lawful to sell such Licensee Offerings to US residents or (if the Licensee Customer is an overseas resident) that it is lawful to sell and export such Licensee Offering to the applicable Licensee Customer. Licensee must describe each Licensee Offering and all terms of sale on the listing page of the applicable Licensee Websites. Licensee is responsible for ensuring that Licensee has the right to use all content associated with the Licensee Offerings.

4.2 As a Licensee, you agree that you are solely responsible for the Licensee Offerings. You agree to use the Mobile First Platform in a manner consistent with any and all applicable laws and regulations. In connection with the Licensee Offerings, and your performance under this Agreement, you agree not to: (a) offer, sell or display any products and/or services that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; (b) offer, sell or display any products and/or services that infringe upon the trademark, trade name, service mark, copyright, license, or other intellectual property or proprietary right of any third party; (c) offer, sell or display any telephone numbers, street addresses, last names, URLs, e-mail addresses or any confidential information of any third person; (d) offer, sell or display any audio files, text, photographs, videos or other images containing confidential information; (e) offer, sell or display any audio files, text, photographs, videos or other images that may be deemed obscene in your community, as defined under applicable law; (f) express or imply that any statements you make are endorsed by Mobile First, without our specific prior written consent; (g) harvest or collect personal information about Licensee Customers or other third parties, without their express consent; (h) use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, "data mine," or in any way reproduce or circumvent the navigational structure or presentation of the Mobile First Platform or its contents; (i) remove any copyright, trademark or other proprietary rights notices contained on the Interface; (j) interfere with or disrupt the Mobile First Platform and/or the servers and/or networks connected to the Mobile First Platform; (k) post, offer for download, e-mail or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (l) post, offer for download, transmit, promote or otherwise make available any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. "spamware"), services that send unsolicited advertisements, programs designed to initiate "denial of service" attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (m) "frame" or "mirror" any part of the Mobile First Platform, without our prior written authorization; and/or (n) modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Mobile First Platform or any software used on or for the Mobile First Platform. Engaging in any of the aforementioned prohibited practices shall be deemed a breach of this Agreement and may result in the immediate termination of your Licensee account without notice, in the sole discretion of Mobile First, pursuant to the terms of this Agreement. Mobile First reserves the right to pursue any and all legal remedies against Licensees that engage in the aforementioned prohibited conduct.

4.3 Notwithstanding the foregoing, Mobile First undertakes no responsibility to monitor or otherwise police the Licensee Offerings made available by you. You agree that Mobile First shall have no obligations and incur no liabilities to you in connection with any such Licensee Offerings, or other information or opinion appearing in your Licensee Websites. You understand and agree that Mobile First is not responsible or liable in any manner whatsoever for your inability to use the Mobile First Platform. You understand and agree that Mobile First shall not be liable to you, any Licensee Customers, Network Operators or any third party for any claim in connection with your use of the Mobile First Platform.

5. Non-Endorsement/Independent Contractors.

5.1 Mobile First operates the Mobile First Platform as a neutral party, and Mobile First does not regularly monitor, regulate or police the use of the Mobile First Platform by any of its Licensees. The use of the Mobile First Platform by a Licensee or otherwise does not constitute an endorsement by Mobile First of that Licensee. Mobile First is not responsible or liable for the acts, omissions, agreements, promises, content, Licensee Offerings, links, other products, services, comments, opinions, advice, statements, offers and other information made available or related to any Licensee, Network Operator or other third party.

5.2 The parties to this Agreement are independent contractors. Neither party is an agent, representative, partner or employee of the other party. Neither party will have any right, power or authority to enter into any agreement on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.

6. Proprietary Rights

6.1 Licensee grants to Mobile First a royalty free, worldwide license ("Licensee License") to: (a) display on, and distribute through, the Mobile First Platform, Interface and otherwise, the Licensee Offerings and any other information posted on the Licensee Websites; (b) offer the Licensee Offerings for sale by and through the Mobile First Platform; and (c) use any and all associated trademarks, service marks, tradenames and/or copyrighted material that Licensee provides to Mobile First, for the purposes of performing its obligations under this Agreement. The Licensee License shall last for the duration of this Agreement.

6.2 Mobile First grants to Licensee a limited, revocable, non-transferable license to use the Mobile First Platform, Widget Code and Interface only as contemplated by, and for the duration of, this Agreement ("Mobile First License").

6.3 All proprietary technology and other information associated with the Mobile First Platform, Widget Code and Interface is owned or licensed by or to Mobile First, and is protected under applicable copyrights, trademarks and other proprietary (including, but not limited to, intellectual property) rights. The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software, and other matters related to the Mobile First Platform, Widget Code and Interface are protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights. The use, copying, redistribution and/or publication by Licensee of any part of Mobile First Platform, Widget Code and/or Interface is strictly prohibited.

6.4 Licensee agrees not, nor shall it allow any party, to modify, adapt, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the software, technology or other functionality associated with the Mobile First Platform, Widget Code and/or Interface, or otherwise attempt to discern the source code of such software, technology and/or other functionality. Licensee is not permitted to make any copies of such software, technology or other functionality without obtaining Mobile First's prior written consent.

6.5 No part of the Mobile First Platform, Widget Code and/or Interface, or other material posted or made available by and through same, may be reproduced, recorded, re-transmitted, sold, rented, broadcast, distributed, published, uploaded, posted, publicly displayed, altered to make new works, performed, digitized, compiled, translated or transmitted in any way to any other computer, website or other medium or for any commercial purpose by Licensee, without obtaining Mobile First's prior express written consent. Except as expressly provided herein, Licensee is not granted any rights or license to patents, copyrights, trade secrets, rights of publicity or trademarks with respect to the Mobile First Platform, Widget Code and/or Interface.

6.6 Licensee agrees that its use of the Mobile First Platform, Widget Code and Interface is subject to the Mobile First License granted hereunder.

6.7 Licensee does not acquire any ownership rights to the Mobile First Platform, Widget Code and/or Interface. The availability of the Mobile First Platform, Widget Code and Interface, as well as the Mobile First License, does not constitute a waiver of any rights related thereto.

7. Term and Termination

7.1 Either party may terminate this Agreement upon thirty (30) days' prior written notice to the other party.

7.2 Either party may terminate this Agreement upon fifteen (15) days' prior written notice where the other party has breached this Agreement and such breach has not been cured within such fifteen (15)-day period. Notwithstanding the foregoing, Mobile First may suspend Licensee's use of the Mobile First Platform immediately and without notice in the event that Mobile First believes, in its sole discretion, that Licensee is not in compliance with the terms of this Agreement.

7.3 Licensee acknowledges and agrees that Mobile First Platform may be terminated by Mobile First, directly or by request of a Network Operator.

7.4 Licensee may remove any Licensee Offerings at any time upon at least two (2) business days' prior written notice to Mobile First.

7.5 Upon any expiration, termination or suspension of this Agreement: (a) the Mobile First License and any and all other licenses and rights granted to Licensee in connection with this Agreement shall immediately cease and terminate; and (b) any and all Confidential Information (as defined below) of Mobile First that is in Licensee's possession or control must be immediately returned or destroyed. If requested, Licensee will certify in a writing signed by Licensee or an authorized officer of Licensee that all such confidential and/or proprietary information has been returned or destroyed.

7.6 Obligations that, by their nature, would survive the termination of this Agreement shall survive any termination of this Agreement.

8. Payment Structure/Fees

8.1 Licensee Customers who choose to pay for Licensee Products via the Mobile First Platform must enter a valid mobile telephone number through the Interface. The Mobile First Platform will verify that the Licensee Customer is in possession of the mobile telephone account used during the purchase by sending an SMS text message or other website instructions for Licensee Customer confirmation before processing the transaction. Upon Customer confirmation and acceptance of Mobile First's terms and conditions, the transaction shall be processed through the applicable Network Operator. Mobile First shall then notify Licensee that the Licensee Customer has been charged and that Licensee may release the purchased Licensee Product to that Licensee Customer.

8.2 Mobile First will coordinate billing of all Licensee Customers with the applicable Network Operators. The Network Operators will retain a percentage of the amount paid by Licensee Customers for each transaction involving Licensee Products (with the retained amount depending on the applicable Network Operator, transaction amount and Licensee Product) and remit the remainder to Mobile First ("Operator Payouts"). Mobile First shall deduct from the Operator Payouts: (a) the fees for use of the Mobile First Platform; and (b) the nominal SMS text messaging fees associated with SMS text messages transmitted as part of Licensee Product transactions, if such costs have not already been deducted by the Network Operator. Mobile First shall then remit the remainder to Licensee ("Aggregate Monthly Operator Payout"). Aggregate Monthly Operator Payouts due Licensee will be calculated on the basis of the monthly traffic reports provided by Mobile First and the statements from the applicable Network Operators. The final statements for Aggregate Monthly Operator Payout amounts payable to Licensee will be based solely on the final validated Network Operator data.

8.3 Licensee acknowledges that the Network Operators make payments to Mobile First for the amount paid by Licensee Customers for each transaction involving Licensee Products, reduced by: (a) Short-term Dilution (as defined below); (b) a Bad Debt Reserve (as defined below) for anticipated accounts receivable that will remain uncollectible ("Bad Debt"); (c) a periodic reconciliation between the Bad Debt Reserve and the actual Bad Debt realized by the Network Operators on Qualifying Transactions ("Bad Debt True-up"); and (d) other related assessments (items (a) through (d) in the preceding sentence shall be referred to collectively as "Assessments"). Licensee further agrees that payment of all amounts described in this Section 8.3 will be Licensee's sole responsibility and that Mobile First may withhold, offset, retain, deduct, set off, recoup or otherwise recover such Assessments from Operator Payouts. Should such Assessments exceed the amounts due Licensee by Mobile First, such Assessments will be due and payable by Licensee to Mobile First in accordance with Section 8.11. Licensee acknowledges that Mobile First is unable to fully document or match all Assessments to specific customers; therefore, Mobile First must use an allocation method to deduct such Assessments from Operator Payouts due under this Agreement when Licensee-specific information is not available from the Network Operators.

8.4 The Network Operators pay Mobile First in advance of complete collection of corresponding amounts due on Qualifying Transactions; therefore, the Network Operators and Mobile First will hold back, offset, retain, deduct, set off, recoup, or otherwise recover an amount estimated to be sufficient to set off any projected or actual Bad Debt ("Bad Debt Reserve") that may be determined after the date that Mobile First makes any payment to Licensee under this Agreement. The Bad Debt Reserve may be increased or decreased, as the case may be, based on either Licensee's estimated or historical Bad Debt amounts, other non-Bad Debt Assessments, the regulatory or industry environment or the amount withheld by the Network Operators, whichever is higher.

8.5 Mobile First may submit Qualifying Transactions to the Network Operators for billing and collection, Mobile First and the Network Operators will determine the actual amount of Bad Debt realized on Qualifying Transactions. Mobile First and the Network Operators will then true up the difference between the Bad Debt Reserve and the Bad Debt realized ("Bad Debt True-up"). Mobile First will provide Licensee with monthly reports on Bad Debt True-up. Mobile First will offset the Bad Debt True-up amount against payments to Licensee. If the payments to Licensee are insufficient to cover the amount of any negative Bad Debt True-up, then Licensee will pay such negative amount in accordance with Section 8.11.

8.6 Mobile First may reserve an amount for Short-term Dilution based upon Licensee's Short-term Dilution history. Mobile First may recalculate Licensee's Short-term Dilution each quarter based upon Licensee's Short-term Dilution in the prior quarter. Until Licensee's Short-term Dilution history can be determined, Mobile First may reserve five percent (5%) from amounts due to Licensee under this Agreement. In the event that Mobile First decreases Licensee's Short-term Dilution reserve, Mobile First will return any excess reserve to Licensee. In the event that Mobile First increases Licensee's Short-term Dilution reserve, Mobile First may either withhold as a Mobile First Assessment from payments to Licensee the amount necessary to satisfy the increased reserve or invoice Licensee for the amount necessary to satisfy the increased reserve in accordance with Section 8.11.

8.7 As collateral for all obligations now existing or hereafter arising from Licensee to Mobile First, Licensee hereby grants to Mobile First a security interest in all the following property of Licensee, whether now owned or hereafter acquired or created, and all proceeds and products thereof: (a) all amounts paid, and all amounts owing, by each Network Operator to Mobile First on accounts of Licensee's Qualifying Transactions; (b) all accounts owing from a Customer to Licensee arising from services which give rise to the applicable Qualifying Transactions; (c) all rights of and proceeds due Licensee relating to all billing and collection, record processing and related communications services agreements; (d) all amounts owing and all amounts to be owing from Mobile First to Licensee; and (e) all of Licensee's accounts with Customers, existing now or arising hereafter.

8.8 Licensee acknowledges and agrees that any Operator Payout included in this Agreement or Schedules executed by the parties could be subject to Network Operators' prior approval. Approval could be subject to conditions imposed directly by Network Operator as provided in the clause 2.5 of this Agreement. Mobile First doesn't bear any responsibility if Licensee's Operator Payout is not approved by Network Operators.

8.9 Other than where set forth to the contrary in the applicable payment Schedules executed by the parties, and incorporated herein by reference (collectively, the "Payment Schedules"), Mobile First will pay the Licensee no later than thirty (30) days after receipt of the Operator Payouts from the Network Operators. In addition, no later than ninety (90) days following the end of such month, Mobile First will provide Licensee with online access to or copies of relevant statements necessary for settlement with Licensee, including Mobile First statements and those of all participating Network Operators. Other than where set forth to the contrary in the Payment Schedules, Mobile First will pay Licensee's revenue share to the Licensee by bank transfer or check. All bank transfer fees shall be borne by Licensee. Other than where set forth to the contrary in the Payment Schedules, if Licensee's revenue share for a particular month is less than Four Thousand Dollars ($4000.00), or the equivalent thereof in the currency applicable to Licensee's Operator Payouts, then that amount will be carried over to the following month's revenue share payment.

8.10 If Mobile First, in its discretion decides to advance amounts to the Licensee before receiving Operator Payouts from the Network Operators, may recourse the advance amount paid to Licensee if the corresponding Operator Payout is uncollectible and confirmed from the applicable Network Operator. Mobile First will deduct those uncollectible amounts from the following Licensee's payout or invoice them even after Licensee has terminated our service in order to settle the difference.

8.11 Licensee acknowledges and agrees that Mobile First's obligation to remit amounts to Licensee is subject to receipt of the corresponding Operator Payouts from the applicable Network Operators. Licensee acknowledges and agrees that: (a) Network Operators may change Operator Payouts calculations and/or SMS text message fees at any time and that such changes may reduce amounts payable to Licensee under this Agreement; and (b) Mobile First shall not be liable to Licensee for any reduction in amounts payable to Licensee by virtue of any action taken by Network Operators. Mobile First shall provide notice of any such Network Operator actions as soon as reasonably practicable.

8.12 Mobile First reserves the right to change the basis for calculating payments hereunder, provided that it notifies Licensee at least ten (10) days in advance of any such change.

8.13 Licensee acknowledges that Network Operators and Mobile First do not bear any credit risk for transactions made by and through the Mobile First Platform. Accordingly, any chargebacks, bad debts, uncollectable amounts and/or discrepancies issued to Mobile First by Network Operators for non-payment by Licensee Customers or otherwise, and any refunds paid by Mobile First to Licensee Customers (collectively, "Payout Adjustments"), shall be charged to Licensee. Licensee acknowledges that Payout Adjustments may occur up anytime from the original Licensee Product transaction. The amount of the Payout Adjustments occurring in a particular month will be deducted from amounts due Licensee for such month, or if this Agreement has terminated, Licensee will reimburse Mobile First for the amount of such Payout Adjustments within thirty (30) days following receipt of Mobile First's invoice for the same. Licensee's obligation to remit such amounts to Mobile First shall survive expiration or termination of this Agreement.

8.14 If Licensee disputes any payment made under this Agreement, Licensee must notify Mobile First in writing within thirty (30) days after receipt of such payment or Licensee waives any claim relating to such payment. Payments shall be calculated solely based on records maintained by Mobile First and the applicable Network Operators.

8.15 If Licensee violates any applicable law, rule or regulation, or if a regulatory body or a Network Operator suspends or blocks the transfer of Operator Payouts because of alleged Licensee misconduct, Mobile First reserves the right to immediately suspend Licensee's account and/or payments due hereunder, in its sole discretion, in order to set aside amounts that may be required for indemnification purposes, in addition to any other remedies available to it at law or in equity. WITHOUT LIMITING THE FOREGOING, MOBILE FIRST RESERVES THE RIGHT TO OFFSET AGAINST AMOUNTS DUE TO LICENSEE UNDER THIS AGREEMENT ANY AMOUNTS OWED BY MOBILE FIRST INCLUDING, BUT NOT LIMITED TO, REIMBURSEMENTS FOR PAYOUT ADJUSTMENTS OR COSTS OR DAMAGES SUFFERED BECAUSE OF THE NON-COMPLIANCE BY LICENSEE WITH APPLICABLE LAWS OR WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.

8.16 Licensee acknowledges and agrees that Mobile First shall not have any liability for fraudulent transactions by Licensee Customers and that Licensee is solely responsible for any Payout Adjustments arising from such Licensee Customers' conduct.

8.17 Except for taxes based on Mobile First's net income, Licensee shall be responsible for taxes, VAT charges, sales tax, customs duties, imposts, withholding taxes and any and all similar fees and/or charges arising out of or related to transactions arising under, and corresponding amounts paid to Licensee under, this Agreement.

8.18 Payment terms and methods may be further modified on the Payment Schedules.

9. Representations and Warranties of Licensee:

Licensee hereby represents and warrants to Mobile First as follows:

9.1 This Agreement has been duly and validly executed and delivered by Licensee and constitutes Licensee's legal, valid and binding obligation which is fully enforceable against Licensee in accordance with its terms;

9.2 Licensee is duly licensed, authorized and certified by all applicable governmental and regulatory authorities to perform Licensee's duties and obligations pursuant to this Agreement;

9.3 Licensee understands and agrees that Mobile First will enter into similar agreements with other Mobile First licensees in direct competition with Licensee;

9.4 Licensee understands and agrees that Licensee has independently evaluated the desirability of establishing and operating Licensee Websites and that Licensee has not relied on any representation and/or warranty other than those set forth in this Agreement;

9.5 The execution, delivery and performance by Licensee of this Agreement will not conflict with or violate: (a) any provision of law, rule or regulation to which Licensee is subject; (b) any order, judgment or decree applicable to Licensee; (c) any provision of Licensee's corporate by-laws or certificate of incorporation, if applicable; or (d) any agreement or other instrument applicable to Licensee;

9.6 Licensee's performance under this Agreement, the Licensee Offerings and any and all other information, content and material made available on the Licensee Websites or otherwise, will not: (a) invade the right of privacy or publicity of any third party; (b) involve any libelous, obscene, indecent or otherwise unlawful material; (c) violate any applicable law, rule, Federal Trade Commission implementing regulation and/or court order; and/or (d) otherwise violate the prohibitions contained in Section 3.2 above.

9.7 There is no pending or, to the best of Licensee's knowledge, threatened claim, action or proceeding against Licensee in any court or with any regulatory body; and

9.8 Licensee will be solely responsible for the material and content that appears on the Licensee Websites and Licensee Offerings made available on the Licensee Websites. Such responsibilities include, without limitation: (a) procuring Licensee Products sold on the Licensee Websites; (b) the accuracy and propriety of materials posted, and/or sold, on the Licensee Websites; (c) ensuring that Licensee Offerings and materials posted on the Licensee Websites do not violate or infringe upon the rights of any third party and are not defamatory, obscene, libelous, harmful, illegal or otherwise offensive; and (d) ensuring that the Licensee Offerings and/or information posted by Licensee on the Licensee Websites otherwise complies with all applicable laws.

10. Representations and Warranties of Mobile First:

Mobile First hereby represents and warrants to Licensee as follows:

10.1 This Agreement has been duly and validly executed and delivered by Mobile First and constitutes Mobile First's legal, valid and binding obligation which is fully enforceable against Mobile First in accordance with its terms;

10.2 Mobile First is duly licensed, authorized and certified by all applicable governmental and regulatory authorities to perform Mobile First's duties and obligations pursuant to this Agreement;

10.3 The execution, delivery and performance by Mobile First of this Agreement will not conflict with or violate: (a) any provision of law, rule or regulation to which Mobile First is subject; (b) any order, judgment or decree applicable to Mobile First; (c) any provision of Mobile First's corporate by-laws or certificate of incorporation, if applicable; or (d) any agreement or other instrument applicable to Mobile First; and/or

10.4 Mobile First's performance under this Agreement, the Mobile First Platform, Interface, Widget Code or Site, will not: (a) violate any applicable law, rule, Federal Trade Commission implementing regulation and/or court order; and/or (b) infringe upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party.

11. Publicity.

Licensee shall not create, publish, distribute or permit any written material that makes reference to Mobile First without first submitting such material to Mobile First and receiving prior written consent from Mobile First, which Mobile First may withhold in its sole discretion.

12. Indemnification

Licensee agrees to indemnify, defend and hold Mobile First, its parents, affiliates and/or subsidiaries, and each of their respective officers, partners, members, managers, employees, agents and attorneys, harmless from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs) arising from:

A. The Licensee Offerings, Licensee Websites and any and all other information, products and/or services posted, made available and/or linked to in connection with Licensee's use of the Mobile First Platform, Interface, Widget Code, Site or otherwise;

B. Any third party claim related to the Licensee Offerings and any and all other information, products and/or services posted, made available and/or linked to by Licensee;

C. Licensee's breach of this Agreement and/or any representation or warranty contained herein;

D. Any allegation that Licensee, the Licensee Offerings and/or Licensee Websites has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party;

E. Any claim that Mobile First is obligated to pay any taxes in connection with Licensee's use of the Mobile First Platform, Interface, Widget Code, Site or otherwise; and/or

F. Any dispute with any Network Operator or Licensee Customer (other than a dispute caused by Mobile First's breach of this Agreement).

G. Licensee's use of the Platform, Interface, Widget Code and/or Site in any other manner whatsoever.

13. Disclaimers/Limitation of Liability

13.1 THE MOBILE FIRST PLATFORM, INTERFACE, WIDGET CODE, SITE AND ANY AND ALL OTHER MOBILE FIRST PRODUCTS AND/OR SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE MOBILE FIRST PLATFORM, INTERFACE, WIDGET CODE, SITE AND ANY AND ALL OTHER MOBILE FIRST PRODUCTS AND/OR SERVICES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. MOBILE FIRST HAS NO LIABILITY, WHATSOEVER, TO LICENSEE, ANY LICENSEE CUSTOMER, ANY NETWORK OPERATOR OR ANY OTHER THIRD PARTY, FOR ANY OTHER PARTY'S SECURITY METHODS AND PRIVACY PROTECTION PROCEDURES AND/OR LICENSEE'S USE OF, OR INABILITY TO USE, THE MOBILE FIRST PLATFORM, INTERFACE, WIDGET CODE, SITE AND ANY AND ALL OTHER MOBILE FIRST PRODUCTS AND/OR SERVICES. OTHER THAN FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT AND INDEMNIFICATION OBLIGATIONS ARISING HEREUNDER, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING ORDINARY NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH HEREINABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN MOBILE FIRST AND LICENSEE. THE MOBILE FIRST PLATFORM, INTERFACE, WIDGET CODE, SITE AND ANY AND ALL OTHER MOBILE FIRST PRODUCTS AND/OR SERVICES WOULD NOT BE PROVIDED TO LICENSEE WITHOUT SUCH LIMITATIONS. MOBILE FIRST MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE MOBILE FIRST PLATFORM, INTERFACE, WIDGET CODE, SITE AND ANY AND ALL OTHER MOBILE FIRST PRODUCTS AND/OR SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM MOBILE FIRST THROUGH THE MOBILE FIRST PLATFORM, INTERFACE, WIDGET CODE, SITE AND ANY AND ALL OTHER MOBILE FIRST PRODUCTS AND/OR SERVICES SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.

13.2 SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS EACH PARTY'S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

14. Force Majeure.

Other than with respect to any payment obligations of Licensee arising hereunder, both parties agree that neither party will be liable, or be considered to be in breach of this Agreement, on account of either party's delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond either party's reasonable control and such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event.

15. Confidential Information.

For purposes of this Agreement, "Confidential Information" means all data and information, of a confidential or proprietary nature or otherwise, disclosed during the term of this Agreement by one party ("Disclosing Party") to the other party ("Receiving Party"), as well as information that the Receiving Party knows or should know that the Disclosing Party regards as confidential including, but not limited to: (a) a party's proprietary technology, trade secrets, methods, business plans, strategies, know how, marketing plans, suppliers, sources of material, customer lists, customer data, finances, business relationships, pricing, employees, trade secrets and other non-public or proprietary information whether written, oral, recorded on tapes or in any other media or format; (b) the material terms of this Agreement; and (c) any information marked or designated by the Disclosing Party as confidential. The Receiving Party agrees to hold all Confidential Information in trust and confidence and, except as may be authorized by the Disclosing Party in writing, shall not use such Confidential Information for any purpose other than as expressly set forth in this Agreement or disclose any Confidential Information to any person, company or entity, except to those of its employees and professional advisers: (i) who need to know such information in order for the Receiving Party to perform its obligations hereunder; and (ii) who have entered into a confidentiality agreement with the Receiving Party with terms at least as restrictive as those set forth herein. Confidential information shall not include any information that the Receiving Party can verify with substantial proof that: (A) is generally available to or known to the public through no wrongful act of the receiving party; (B) was independently developed by the Receiving Party without the use of Confidential Information; or (C) was disclosed to the Receiving Party by a third party legally in possession of such Confidential Information and under no obligation of confidentiality to the Disclosing Party. The Receiving Party agrees that monetary damages for breach of confidentiality may not be adequate and that the disclosing party shall be further entitled to injunctive relief, without the requirement to post bond. This Section 14 shall survive termination of this Agreement by a period of five (5) years or for as long as the applicable Confidential Information remains a trade secret under New York State law, whichever is longer.

16. Miscellaneous.

16.1 This Agreement shall be treated as though it were executed and performed in New York, New York and shall be governed by and construed in accordance with the laws of the State of New York (without regard to conflict of law principles Should a dispute arise concerning the terms and conditions of this Agreement or the breach of same by any party hereto, each hereby submits to the jurisdiction of either the United States District Court for the Southern District of New York or any New York State Court of competent jurisdiction, located in New York County, and further agrees to comply with all the requirements necessary to give such court jurisdiction.

16.2 Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect.

16.3 Licensee agrees that any unauthorized and/or unlawful use of the Mobile First Platform would result in irreparable injury to Mobile First for which monetary damages would be inadequate. In such event, Mobile First shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against Licensee without the need to post a bond. Nothing contained in this Agreement shall be construed to limit any legal remedies available to Mobile First.

16.4 To the extent that anything in or associated with the Site, Mobile First Platform, Privacy Policy or any other applicable Mobile First operating rules, policies, price schedules and other supplemental terms and conditions or documents, is in conflict or inconsistent with this Agreement, this Agreement shall take precedence.

16.5 Either party's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.

16.6 Any attempt by any individual, whether or not Licensee, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Mobile First Platform is a violation of both criminal and civil law and Mobile First will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity.

16.7 Licensee is not permitted to transfer any rights and/or obligations pursuant to this Agreement without the express written consent of Mobile First. Any attempt to do so will result in the immediate termination of this Agreement. Mobile First may assign this Agreement, and any and all rights and/or obligations arising hereunder, without the prior consent of Licensee. Subject to the foregoing, this Agreement will be fully binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, administrators, legal representatives, successors and permitted assigns.

16.8 This Agreement constitutes the entire and only agreement and supersedes any and all prior agreements, whether written, oral, express or implied, of the parties with respect to the transactions contemplated herein. In the event of an express conflict between the terms and conditions of this Agreement and the terms and conditions of any Schedule, the terms and conditions of the Schedule will prevail.

16.9 This Agreement is subject to change at any time, in Mobile First's sole discretion, and such changes shall be effective upon their posting on the Mobile First website located at www.mobilefirst.com (the "Site"); provided, however, that: (i) any amendment or modification to the arbitration provisions, prohibition on class action provisions or any other provisions applicable to dispute resolution (collectively, "Dispute Resolution Provisions") shall not apply to any disputes incurred prior to the applicable amendment or modification; and (ii) any amendment or modification to pricing and/or billing provisions ("Billing Provisions") shall not apply to any charges incurred prior to the applicable amendment or modification. Licensee is responsible for bookmarking and checking the Site frequently in order to remain abreast of any and all amendments and/or changes to this Agreement. Licensee's continued use of the Mobile First Platform after notice is given shall constitute Licensee's binding and legally enforceable agreement to such changes (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable). If Licensee does not wish to accept any such change, then Licensee must terminate this Agreement and cease using the Mobile First Platform.

17. Electronic Signatures.

Licensee acknowledges and agrees that by clicking on the button labeled "I Agree" or such similar link as may be designated by Mobile First to accept this Agreement, Licensee is submitting an electronic signature and is entering into a legally binding contract. Licensee acknowledges that Licensee's electronic submissions constitute Licensee's agreement and intent to be bound by this Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws including, without limitation, the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the "E-Sign Act") or other similar statutes, LICENSEE HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE MOBILE FIRST PLATFORM OFFERED BY MOBILE FIRST. Further, Licensee hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which requires an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.