Terms of Service Agreement

January 31, 2008

Mo'Blast, Inc. ("Mo'Blast") provides users with access to a collection of location-based services, including various branded applications through its network of properties (including but not limited to Fon11), which may be accessed through various media or devices now known or hereafter developed (collectively, the "Mo'Blast Services").

This Terms of Service Agreement ("TOS") sets forth the legally binding terms for your use of Fon11. By using Fon11, you agree to be bound by this TOS. You are only authorized to use Fon11 if you agree to abide by all applicable laws and to this TOS. If you wish to become a User, communicate with other Users and make use of Fon11, you must read this TOS and indicate your acceptance during the registration process. If you do not agree with it, you should discontinue use of Fon11 immediately.

By accepting the terms of this TOS and using Fon11, you also understand and agree that Fon11 may include advertisements and that these advertisements are necessary for Mo'Blast to provide Fon11. You also understand and agree that Fon11 may include certain communications from Mo'Blast, such as service announcements, administrative messages and the Mo'Blast Blogs and Forums, and that these communications are considered part of Fon11 User membership and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance Fon11, including the release of new Mo'Blast properties, shall be subject to the TOS.

You understand and agree that Fon11 is provided “AS IS” and that Mo'Blast assumes no responsibility for the timeliness, deletion, misdelivery or failure to store any User communications, Content or personalization settings. You are responsible for obtaining access to Fon11, and you understand that such access may involve third-party fees (such as Internet service provider or airtime charges). You are responsible for those fees, including those fees associated with the display or delivery of advertisements. In addition, you must provide and are responsible for all equipment necessary to access Fon11.

Mo'Blast may modify this TOS from time to time and such modification shall be effective upon posting by Mo'Blast on Fon11's website. You agree to be bound to any changes to this TOS when you use Fon11 after any such modification is posted. It is therefore important that you review the TOS regularly to ensure you are updated as to any changes.

1. Your Registration Obligations.

By using Fon11, you represent and warrant that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You also agree that: (a) all information you submit during the registration process is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you are 13 years of age or older; and (d) your use of Fon11 does not violate any applicable law or regulation. If you provide any information that is untrue, inaccurate, incomplete or not current, or Mo'Blast has reasonable grounds to suspect that such information is untrue, inaccurate, incomplete or not current, or if Mo'Blast believes that you are under 13 years of age, Mo'Blast has the right to suspend or terminate your account without warning and refuse any and all current or future use of Fon11 or any other Mo'Blast Services (or any portion thereof) to you.

2. Term.

This TOS (as may be modified by Mo'Blast from time to time) shall remain in full force and effect while you use Fon11. You may terminate your User membership at any time, for any reason. Mo'Blast may terminate your User membership at any time, without warning. Even after use or User membership is terminated, this TOS (as modified by Mo'Blast from time to time) will remain in effect.

3. User Account, Password and Security.

You are solely and fully responsible for maintaining the confidentiality of your password and account and for ensuring that you exit from your account at the end of each session. You are solely and fully responsible for any and all activities that occur under your password or account, and you agree not to use the account, User identity, or password of another User at any time or to disclose your password to any third party. You agree to notify Mo'Blast immediately if you suspect any unauthorized use of your account or access to your password.

You agree that your Fon11 account is non-transferable and any rights to your Fon11 User identities or contents within your account terminate upon your death. Upon receipt by Mo'Blast of a copy of a death certificate, your account may be terminated and all contents therein permanently deleted.

4. Fees and Payments.

Mo'Blast reserves the right to charge fees for future use of or access to Fon11 or any other Mo'Blast Services, websites or products, in Mo'Blast's sole discretion. If Mo'Blast decides to charge fees, such charges will be disclosed to you in advance.

5. Proprietary Rights in Content.

Fon11 as well as other Mo'Blast Services and affiliated websites contain Content of Mo'Blast ("Mo'Blast Content"). Mo'Blast Content is protected by copyright, trademark, patent, trade secret and other laws, and Mo'Blast owns and retains all rights in the Mo'Blast Content and the Mo'Blast Services. Mo'Blast hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the Mo'Blast Content (excluding any software code) solely for your personal use in connection with using Fon11 or other Mo'Blast Services.

Fon11 also enables you to view or otherwise access certain Content of Users of other Mo'Blast Services and other Mo'Blast licensors. Except for Content posted by you, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any Content appearing on or through Fon11 or any other Mo'Blast Services.

Content posted by you on or through other Mo'Blast Services is governed by the terms of the Terms of Service Agreement(s) and Copyright and IP Policies applicable to those specific Mo'Blast Services.

6. User Conduct.

Mo'Blast reserves the right, in its sole discretion, to restrict, suspend, or terminate your access to Fon11 at any time, for any or no reason, with or without prior notice, and without liability.

Mo'Blast assumes no responsibility for monitoring Fon11 or any other Mo'Blast Services for inappropriate Content or conduct. If at any time Mo'Blast chooses, in its sole discretion, to monitor Fon11 or any other Mo'Blast Services, Mo'Blast nonetheless assumes no responsibility for the Content, no obligation to modify or remove any inappropriate Content, and no responsibility for the conduct of Users.

Mo'Blast assumes no responsibility or liability for information or material provided by you or other Users. You are solely responsible for the information that you provide on or through Fon11. Content and information are not necessarily reviewed by Mo'Blast and do not necessarily reflect the opinions or policies of Mo'Blast. Mo'Blast makes no warranties, express or implied, as to the information or Content or to the accuracy and reliability of the Content or any material or information that you transmit to other Users or that other Users transmit to you.

You are solely responsible for your interactions with other Users of Fon11 or other Mo'Blast services. Mo'Blast reserves the right, but has no obligation, to monitor disputes between you and other Users.

The following is a partial list of the kind of activity that is illegal or prohibited on Fon11 and other Mo'Blast Services. Mo'Blast reserves the right to investigate and take appropriate legal action against anyone who, in Mo'Blast's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities. Prohibited activity includes, but is not limited to:

1. Criminal or tortious activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, spimming, sending of viruses or other harmful files, copyright infringement, patent infringement, or theft of trade secrets;

2. Interfering with, disrupting, or creating an undue burden on the Mo'Blast Services or the networks or services connected to the Mo'Blast Services;

3. Attempting to impersonate another User or person;

4. Using the account, User identity, or password of another User at any time or disclosing your password to any third party or permitting any third party to access your account;

5. Selling or otherwise transferring your User account;

6. Using any information obtained from Fon11 or other Mo'Blast Services in order to harass, abuse, or harm another person;

7. Using Fon11 or other Mo'Blast Services in a manner inconsistent with any and all applicable laws and regulations.

If you become aware of misuse of Fon11 or other Mo'Blast Services by any person, please contact Mo'Blast at legal@moblast.com.

7. Privacy.

Use of Fon11 is also governed by our Privacy Policy, which is incorporated into this TOS by this reference.

8. Interstate Nature of Communications.

When you register with Fon11, you acknowledge that in using Fon11, you will be causing communications to be sent through Mo'Blast's computer networks, portions of which are located in California and other locations in the United States and portions of which are located abroad. As a result, and also as a result of Mo'Blast's network architecture and business practices and the nature of electronic communications, even communications that seem to be intrastate in nature can result in the transmission of interstate communications regardless of where you are physically located at the time of transmission. Accordingly, by agreeing to this TOS, you acknowledge that use of Fon11 results in interstate data transmissions.

9. Special Admonitions for International Use.

Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.

10. DISCLAIMERS OF WARRANTIES AND LIABILITY.

Mo'Blast disclaims any and all responsibility or liability for the accuracy, content, completeness, legality, reliability, or operability or availability of information or material displayed through Fon11 or other Mo'Blast Services. Mo'Blast is not responsible for any incorrect or inaccurate Content posted in connection with Fon11 or other Mo'Blast Services, whether caused by Users of Fon11 or other Mo'Blast Services, by advertisers, or by any of the equipment or programming associated with or utilized in Fon11 or other Mo'Blast Services.

Content accessible through Fon11 or other Mo'Blast Services may contain links to other websites. Mo'Blast is not responsible for the Content, accuracy or opinions expressed on such websites, and such websites are in no way investigated, monitored or checked for accuracy or completeness by Mo'Blast. Inclusion of any linked website on the Mo'Blast Services does not imply approval or endorsement of the linked website by Mo'Blast. When you access these third-party sites, you do so at your own risk. Mo'Blast takes no responsibility for third party advertisements which are displayed through Fon11 or other Mo'Blast Services, nor does it take any responsibility for the goods or services provided by its advertisers. You further acknowledge and agree that Mo'Blast shall 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 content, goods or services available on or through any such third party site or resource.

Mo'Blast is not responsible for the conduct, whether online or offline, of any User of Fon11 or other Mo'Blast Services.

Mo'Blast assumes no responsibility for any error, omission, interruption, failure to store, deletion, defect, delay in operation or transmission, misdelivery, untimely delivery, communications line failure, theft or destruction or unauthorized access to, or alteration of, any User Content or User communication. Mo'Blast is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on any of the Mo'Blast Services (including but not limited to Fon11) or combination thereof, including any injury or damage to Users or to any person's computer related to or resulting from participation or downloading materials in connection with Fon11 or any other Mo'Blast Services.

Under no circumstances shall Mo'Blast be responsible for any loss or damage, including personal injury or death, resulting from use of Fon11 or other Mo'Blast Services, from any Content posted on or through Fon11 or other Mo'Blast Services, or from the conduct of any Users of Fon11 or other Mo'Blast Services, whether online or offline.

Fon11 and the other Mo'Blast Services are provided "AS-IS" and as available and Mo'Blast expressly disclaims any warranty of fitness for a particular purpose or non-infringement. Mo'Blast cannot guarantee and does not promise any specific results from use of Fon11 or other Mo'Blast Services.

THE MO'BLAST SERVICES AND ALL MATERIALS, INFORMATION, PRODUCTS AND SERVICES INCLUDED IN THE MO'BLAST SERVICES ARE PROVIDED "AS IS," WITH NO WARRANTIES WHATSOEVER. MO'BLAST AND ITS LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. MO'BLAST AND ITS LICENSORS DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE MO'BLAST SERVICES. MO'BLAST AND ITS LICENSORS DISCLAIM, ANY WARRANTIES FOR ANY INFORMATION OR ADVICE OBTAINED THROUGH THE MO'BLAST SERVICES. MO'BLAST AND ITS LICENSORS DISCLAIM ANY WARRANTIES FOR SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE MO'BLAST SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED BY THE MO'BLAST SERVICES, AS WELL AS FOR ANY INFORMATION OR ADVICE RECEIVED THROUGH ANY CONTENT OR LINKS PROVIDED IN THE MO'BLAST SERVICES.

YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN MATERIAL OR DATA THROUGH THE USE OF THE MO'BLAST SERVICES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.

11. LIMITATION ON LIABILITY.

UNDER NO CIRCUMSTANCES SHALL MO'BLAST OR ITS LICENSORS BE LIABLE TO YOU, ANY USER (INCLUDING ANY OF YOUR CUSTOMERS), OR ANY THIRD PARTY ON ACCOUNT OF THE USE OR MISUSE OF OR RELIANCE ON THE MO'BLAST SERVICES, OR ARISING FROM ANY CLAIM RELATING TO THIS TERMS OF SERVICE AGREEMENT OR THE SUBJECT MATTER HEREOF. SUCH LIMITATION OF LIABILITY SHALL APPLY TO PREVENT RECOVERY OF DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, AND PUNITIVE DAMAGES WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF MO'BLAST OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE MO'BLAST SERVICES, FROM INABILITY TO USE THE MO'BLAST SERVICES, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF OPENLANDMARK OR ANY OTHER MO'BLAST SERVICES (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). THIS LIMITATION SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR GOODS RECEIVED THROUGH OR ADVERTISED ON THE MO'BLAST SERVICES OR RECEIVED THROUGH ANY LINKS OR CONTENT PROVIDED IN THE MO'BLAST SERVICES, AS WELL AS BY REASON OF ANY INFORMATION OR ADVICE RECEIVED THROUGH OR ADVERTISED ON THE MO'BLAST SERVICES OR RECEIVED THROUGH ANY LINKS PROVIDED IN THE MO'BLAST SERVICES. THIS LIMITATION SHALL ALSO APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. SUCH LIMITATION SHALL FURTHER APPLY WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF THE MO'BLAST SERVICES OR ANY INFORMATION OR MERCHANDISE THAT APPEARS ON, OR IS LINKED OR RELATED IN ANY WAY TO, THE MO'BLAST SERVICES. SUCH LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.

Without limiting the foregoing, under no circumstances shall Mo'Blast or its licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuations in heat, light, or air conditioning.

12. EXCLUSIONS AND LIMITATIONS.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 10-11 MAY NOT APPLY TO YOU.

13. Indemnity.

You agree to indemnify and hold Mo'Blast, its subsidiaries and affiliates, and their respective officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of Fon11 or other Mo'Blast Services in violation of this TOS and/or arising from a breach of this TOS and/or any breach of your representations and warranties set forth above and/or if any Content that you post through Fon11 or other Mo'Blast Services causes Mo'Blast to be liable to another.

14. Disputes.

If there is any dispute about or involving Fon11 or related products, you agree that the dispute shall be governed by the laws of the State of California, USA, without regard to conflict of law provisions and you agree to exclusive personal jurisdiction and venue in the state and federal courts of the United States governing the State of California, County of Alameda. Either Mo'Blast or you may demand that any dispute between Mo'Blast and you about or involving Fon11 or other Mo'Blast Services must be settled by arbitration utilizing the dispute resolution procedures of the American Arbitration Association (AAA) in San Francisco, California, USA, provided that the foregoing shall not prevent Mo'Blast from seeking injunctive relief in a court of competent jurisdiction.

15. No Resale of the Services.

You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of Fon11 or other Mo'Blast Services (including your User ID), use of Fon11 or other Mo'Blast Services, or access to Fon11 or other Mo'Blast Services.

16. General Practices Regarding Use and Storage.

You acknowledge that Mo'Blast may establish general practices and limits concerning use of Fon11 or other Mo'Blast Services, including without limitation the maximum number of days that Content will be retained by Fon11 or other Mo'Blast Services, the maximum disk space that will be allotted on Mo'Blast's servers on your behalf, and the maximum number of times (and the maximum duration for which) you may access Fon11 or other Mo'Blast Services in a given period of time. You agree that Mo'Blast has no responsibility or liability for the deletion or failure to store any messages and other communications or Content maintained or transmitted by Fon11 or other Mo'Blast Services. You acknowledge that Mo'Blast reserves the right to log off accounts that are inactive for an extended period of time. You further acknowledge that Mo'Blast reserves the right to modify these general practices and limits from time to time.

17. Modifications to Services.

Mo'Blast reserves the right at any time to modify or discontinue, temporarily or permanently, Fon11 or any of the Mo'Blast Services (or any part thereof) with or without notice. You agree that Mo'Blast shall not be liable to you or to any third party for any modification, suspension or discontinuance of Fon11 or any of the Mo'Blast Services.

18. Termination.

You agree that Mo'Blast may, under certain circumstances and without prior notice, immediately terminate your Fon11 or other Mo'Blast account, any associated User identities, and access to Fon11 or other Mo'Blast Services. Cause for such termination shall include, but not be limited to, (a) breaches or violations of the TOS or other incorporated agreements or policies, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to Fon11 or other Mo'Blast Services (or any part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, and/or (g) engagement by you in fraudulent or illegal activities. Termination of your Fon11 or other Mo'Blast account includes (a) removal of access to all offerings within Fon11 and other Mo'Blast Services, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring of further use of Fon11 and other Mo'Blast Services. Further, you agree that all terminations shall be made in Mo'Blast's sole discretion and that Mo'Blast shall not be liable to you or any third party for any termination of your account, any associated User identities, or access to Fon11 or other Mo'Blast Services.

19. Mo'Blast's Proprietary Rights.

You acknowledge and agree that Fon11 and all other Mo'Blast Services and any necessary software used in connection with Fon11 and other Mo'Blast Services ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that content contained in sponsor advertisements or information presented to you through Fon11 or other Mo'Blast Services or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Except as expressly authorized by Mo'Blast or advertisers, you agree not to modify, rent, lease, loan, sell, reverse engineer, distribute or create derivative works based on Fon11 or other Mo'Blast Services or any relevant software, in whole or in part.

20. No Third-Party Beneficiaries.

You agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to this agreement.

21. Notice.

Mo'Blast may provide you with notices, including those regarding changes to the TOS, by email, regular mail or postings on the Service.

22. Other.

This TOS is accepted upon your use of Fon11.

This TOS constitutes the entire agreement between you and Mo'Blast regarding the use of the Fon11, superseding any prior agreements between you and Mo'Blast with respect to Fon11. You also may be subject to additional terms and conditions that may apply when you use certain other Mo'Blast Services, affiliate services, third-party content or third-party software.

The failure of Mo'Blast to exercise or enforce any right or provision of this TOS shall not operate as a waiver of such right or provision.

The section titles in this TOS are for convenience only and have no legal or contractual effect.

This TOS operates to the fullest extent permissible by law. If any provision of this TOS is unlawful, void or unenforceable, that provision is deemed severable from this TOS and does not affect the validity and enforceability of any remaining provisions.

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of Fon11 or affiliated Mo'Blast Services or the TOS must be filed within one (1) year after such claim or cause of action arose or be forever barred.

I HAVE READ THIS TERMS OF SERVICE AGREEMENT AND AGREE TO ALL OF THE PROVISIONS CONTAINED ABOVE.