Latest revision: Wednesday, 19 September 2007

Please read the following document carefully.

This document contains the Terms and Conditions that will regulate your participation in the mobileart Affiliate Program. By clicking on the button "I Accept" that appears at the bottom of the present agreement, the Affiliate accepts and states expressly that he/she has thoroughly read and understood the terms and conditions herein described and that accordingly accepts to be bound by the following terms and conditions, provided his/her application form is accepted:

In order to join and take part in the mobileart Program as an Affiliate, you must be of the legal age required in your place of residence.

1. Description of Services.-

mobileart provides the Affiliate:

• the possibility of trading through legal means the contents mobileart makes available;
• the possibility of offering customers, global payment systems through the means utilized by mobileart.

The service includes access to a comprehensive and exclusive customized automated management system.

2. Fee.-

Provided the conditions detailed in this agreement are fulfilled, mobileart will pay the Affiliate the fixed fees corresponding to each country detailed inside the "Fees" link and according to the following specifications.

2.1 Content Download.- mobileart shall pay, for each content downloaded, a fixed fee based on content and country, without taking into consideration the number of SMS required for the download.

2.2 Micropayments & Other Campaigns.- mobileart shall pay the Affiliate a fixed fee for each SMS generated, based on the country.

Before paying its Affiliates, mobileart must receive the payment from the Cellular Carriers and/or intermediaries who provide the short numbers. Under no circumstance, shall mobileart pay the Affiliate any amount without having previously received the corresponding payment from the Cellular Carriers and/or intermediaries, reserving the right to withhold payment to the Affiliate if the before mentioned payment is not made by the carriers and/or intermediaries.

mobileart is in no way responsible for any loss to the Affiliate resulting, directly or indirectly, from lack of, or insufficient payment by the Cellular Carriers and/or intermediaries.

3. Settlements.-

The mobileart System will provide an electronic invoice with a trustworthy detail of the payments to be made to the Affiliate and by the Affiliate. No amount other than that arising from the mobileart computer system, will be paid.

Except in the case of contract termination, no monetary settlements inferior to the minimum amount selected will be made. This way, if the settlement amount does not reach the minimum selected by the Affiliate, it will not be paid the corresponding month, and it will be added to the amount generated the following month, as long as the added amount surpasses the minimum.

In the event there is a complaint or suspicion that the affiliate infringes the law through his/her use of our services, mobileart reserves the right to withhold any amount due and payable until the said complaint or suspicion is either confirmed or disregarded.

Should mobileart confirm the affiliate infringed the law, it shall be able to suspend payment of all sums due for an indefinite period of time as way of penalty and without prejudice of its right to cancel this Agreement as well as take civil and criminal actions pertaining thereto pursuant to Clause 12 of this Agreement.

4. Cancellation & Term.-

The present Terms & Conditions will be valid for an indefinite period of time and will be effective the moment the Affiliate clicks the "I Accept" button. Any of the parties may terminate the agreement immediately and without cause, notifying the other party via e-mail, notwithstanding the legal actions that may ensue from breaching the provisions hereto.

The pending balances due at the moment of terminating the agreement may be withheld by mobileart until the final settlement in which all the due payments will be made.

5. Legitimate uses.-

The affiliate commits to make legitimate use of the services offered by mobileart, accepting exclusive responsibility for any unlawful or different use than that provided in this contract.

The Affiliate shall make sure the end user is aware of:

• the non-free nature of the contents or services they will enter;
• If applicable, the highly erotic nature of the content offered and the prohibition on minors having access to it.

The Affiliate shall take special care regarding the contents published or promoted in his site, being obliged to strictly fulfill the requirements demanded by the United States of America on the subject, especially U.S.C. title 18, Section 2257.

Use, distribution, publishing, or broadcasting of pornographic material showing, depicting or representing minors (under 18 years old) in any way, as well as using terms such as "minors", "lolitas", "adolescent", "child", "children", "elementary", "fifteen", "fourteen", "high", "school", "infant", "juvenile", "kid", "kiddy", "kindergarten", "little boy", "little girl", "lolita", "lolita-teen", "minor", "nymphet", "pedophile", "preteen", "puberty", "pubescent", "seventeen", "sixteen", "thirteen", "underage", "young boy", "young child", "young girl", "young school boy", "young school girl", "young teen", "youth" is strictly prohibited. This list serves as an example and may be broadened and/or changed by mobileart at any time.

6. Permitted means of advertising.-

mobileart authorizes the Affiliate to advertise the services in a legal and legitimate manner. The Affiliate is authorized to advertise the service in any way it may consider appropriate, but specifically agrees not to do so in ways that may be deemed in any way as illegal or unlawful, considering as such, any of the resulting from the norms applicable.

mobileart makes it clear that it does not tolerate any conduct by the Affiliate who advertises its services through any type of illegal advertising other than that permitted by the governing international legislation. The Affiliate further agrees to abide by the laws, by-laws and codes of conduct- applicable in each country, area or region from where the contents are accessed- governing the form the contents are shown to Internet end users and assumes full responsibility thereof.

6.1 SPAM. - SPAM constitutes the unwanted traffic of publicity by users. The Affiliate is obliged to respect mobileart’s anti-SPAM policy, conforming to U.S. legislation (CAN-SPAM ACT/2003). Any negative report against the Affiliate in the Privacy Policy section will lead to penalization and immediate termination of the contract.

6.2 Bulk Mail. - Sending bulk mail as a promotion tool is strictly prohibited.

6.3 Child Pornography. - It is strictly prohibited for the Affiliate to advertise, give access to, or publish any material containing child pornography or any other illegal activities not permitted by law, especially conforming to United States and European Union legislature.

It is hereby made clear, that all the mobileart adult contents, are in compliance with the legal requirements provided by general International Legislation, and by U.S. law in particular (U.S.C., title 18, section 2258).

6.4 For adults only. - The Affiliate commits not to promote or stimulate usage of adult oriented material by minors, adopting the necessary measures aimed at not allowing minors access to the content, in accordance with the provisions in force in the place of residence.

Should mobileart receive any complaint arising from or in connection with any breach of this clause will cause the withholding of any amount of money generated by the Affiliate, not-withstanding the immediate resolution of the matter.

7. Limitation of Liability. –

In the understanding that the Affiliate is not a mobileart agent, and that the administrator of this program cannot, and is not supposed to control the information or contents the Affiliate makes available to the users, the Affiliate hereby acknowledges and accepts that use of the service will be under his/her exclusive responsibility, releasing mobileart from any and all responsibility for the actions of the Affiliate before any third party (including Cellular Carriers and/or intermediaries).

In this sense, the Affiliate will take responsibility for any direct or indirect damage or inconvenience, whether personal or material, caused to any third party as a result of using the service (including breaches in Intellectual or Industrial Property Rights), and will personally assume any dispute that may arise regarding this matter, even in the case of mobileart’s responsibility being judicially compromised. The Affiliate will be obliged to take any necessary action to hold mobileart harmless from any responsibility in any lawsuits, including those regarding public administrations, regarding the functionality of the services and/or the content downloaded, and/or the text of the messages sent.

Also, the Affiliate is obliged to respect the laws, regulations and codes of conduct applicable in each country, zone, or region from which the service is accessed, regarding the way the contents are shown to the end user, assuming any responsibility in this regard.

The Affiliate further undertakes to complying with the normative and requisites demanded for offering aggregate value services and delivery of SMS short text messages, applicable Codes of Conduct in the area, and requirements of the companies supplying the short numbers.

mobileart shall not be liable to the Affiliate, or any third party, for the inability of the Affiliate to access the service in random cases or force majeure cases, nor in cases of loss or elimination of information or impossibility to recover it partially or completely, connection failures, system failures, server failures, Cellular Carrier and/or intermediaries failure, or any other cause not imputable to mobileart, including cases of service interruptions made for maintenance or updating reasons. Accordingly, the Affiliate relinquishes his/her right to sue mobileart for damages and will not make it liable in front of any complaints from third parties.

The Affiliate acknowledges the prohibition to use any brands, designs, copyrighted material, and names without proper authorization for their use.

Breaching any of the previously described obligations, as well as the non-fulfillment of applicable general normative, will result in termination of this contract. All judicial and non-judicial expenses resulting from the breach of the contractual obligations shall be paid by the breaching party, including fees for Lawyers and other professionals, even if their intervention is not mandatory.

8. Services & Numbers.-

The Affiliate agrees not to give out, sub-lease, license, or carry out any other act of disposition of the object in question, that is not strictly in observance of what is stipulated in this contract.

The Affiliate shall act in a manner that will not undermine, or damage the reputation and good name of mobileart or the Cellular Carriers and/or intermediaries supplying the numbers, agreeing to compensate mobileart for any damages the non-fulfillment of what was previously stipulated might cause.

The Affiliate acknowledges that the short numbers he/she will utilize are not of its property, and that they belong to, depending on the case, mobileart or the Cellular Carriers and/or corresponding intermediaries. Therefore, the Affiliate does not hold, by virtue of this contract, any title, right or interest on the short numbers, which may be changed without any right of penalty or compensation by the affiliate.

9. Personal Data.-

The Affiliate authorizes the inclusion of its provided data in a mobileart database, which will be used to fulfill what is stated in this contract and carry out the proper invoicing, as well as delivery of internal commercial promotions from the company and information of interest relating to the service in the contract. At any point, the Affiliate may request that the delivery of this information be cancelled.

The information provided by the Affiliate will not be revealed to third parties, except when ordered by a court or competent authority.

In cases of complaints from any third party (including the Cellular Carriers and/or intermediaries) of alleged illicit activity by the Affiliate, as well as suspicions mobileart may have of the Affiliate using the service to infringe the law or normative, the data may be revealed without it giving the Affiliate right of complaint of any kind.

10. Non-Use of Trademark. -

In no case does mobileart grant use or license of its intellectual or industrial property to the Affiliate. Since mobileart provides the services described in section 1 only, the Affiliate is not allowed to:

• a) use, make reference to or let know, in no means of communication whatsoever, directly or indirectly, to his/her customers or third parties, the company’s name, trademark or logos without prior authorization from mobileart ;
• b) perform any activity that undermines or prejudices mobileart’s reputation and good name.

11.Confidentiality.-

Both parties hereto shall keep confidential any information received from the other by virtue of this agreement. For the purpose of this agreement, confidential information shall exclusively mean that pertaining to the business both parties carry out as set forth herein, including the trade secrets, know-how, all methods and documents of any two parties designated or labeled as confidential or of confidential nature and which are transmitted between the parties within the framework of this agreement, being the agreement itself confidential as well. Accordingly, the aforesaid information shall not be divulged nor made available to third parties without prior written authorization from the other party, except upon request from a legal court or supervising legal authority.

In cases of complaints from any third party (including the Cellular Carriers and/or intermediaries) of alleged illicit activity by the Affiliate, as well as suspicions mobileart may have of the Affiliate using the service to infringe the law or normative, the data may be revealed without it giving the Affiliate right of complaint of any kind.

Moreover, both parties shall take all the necessary precautions in order to safeguard the other's confidential information in the same manner as they safeguard their own valuable confidential information.

12. Cancellation due to Breach. Fine. -

In case of breach by the Affiliate of any of the obligations stated in the contract, as well as in the case of confirmed fraud or any activity that may be deemed illegal or abusive by local or international laws, or by internet costumes, mobileart reserves for itself the right to, instantly and definitely, suspend all pending payments as a fine, and without being liable to civil and legal actions pertaining the case.

The Affiliate must immediately eliminate from its site any icon, link, or reference to mobileart.

13. Charge backs.-

mobileart reserves the right to cancel any Affiliate’s accounts that, in mobileart considers, have an unusually large number of refunds due to chargebacks. In which case any amount of money owed to the Affiliate will be used to cover the cost caused by its actions, in accordance to the terms of the contract.

14. Tax Obligations, Independent Contractors.-

The Affiliate shall be solely responsible for all tax obligations due to all taxing authorities arising from or in connection with his/her participation in the program.

Both parties acknowledge and agree that all obligations and rights expressed herein are those arising from their independent professional activities and therefore, nothing in this agreement shall be construed to create a partnership or employment relationship.

15. Eligibility.-

The Affiliate agrees and warrants he/she can form legally binding contracts or that he/she is duly authorized to do so, all of which shall be proved upon submission of written documentation if required by mobileart.

16. Jurisdiction and governing law.-

The parties expressly agree that all the laws applicable in this agreement shall be those in force in the Republic of Uruguay.

The parties expressly agree -hereby relinquishing any other jurisdiction or forum- the courts of the city of Montevideo, Uruguay shall be the exclusive forum and venue to resolve any and all disputes arising out of or relating to these Terms and Conditions.

17.Modifications.-

mobileart reserves the right to modify in part or in whole the terms and conditions of the service by posting the said changes on its web site or notification via e-mail at the address the Affiliate provided in the application form.

The changes shall be notified 24 hours in advance. If any modification is unacceptable to the Affiliate, his/her sole recourse is to terminate this agreement.

Continued participation in the service following posting of a change notice will constitute binding acceptance of the change.

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