WAP123 TERMS OF USE AGREEMENT

Effective August 1, 2004

IMPORTANT - YOU MUST READ THE FOLLOWING TERMS AND CONDITIONS AND ACCEPT THE TERMS OF THIS AGREEMENT. BY CLICKING THE PAYPAL PAYMENT ICON YOU ACKNOWLEDGE AND AGREE TO THESE TERMS.

Welcome to wap123! This agreement ("Agreement") is a contract between you and Wap123.com ("Wap123") and governs your use of the Wap123 Website, all Downloads (defined below) and all your activity on the Messaging Systems (defined below) and the Wap123 Website (collectively, the "Service"). The Wap123 Website means this web site, as accessed by any of the following domain names: Wap123.com, Wap123.org, Wap123.ws, Wap123.cc, or Wap123.tv; however, the Wap123 Website does not refer to any other web site linked to or from this web site. By completing the registration process and accepting this Agreement, you represent that (i) you have read and understood this Agreement and agree to be bound by its terms and conditions and (ii) you are at least 18 years of age. If you do not agree to be bound by (or cannot comply with) any of the terms and conditions of this Agreement, do not check the acceptance box below and do not continue the registration process or attempt to access the Service.

Notice

Wap123 may from time to time amend, supplement or modify the terms of this Agreement, and will post a copy of such amended Agreement at . If you do not agree to be bound by (or cannot comply with) the Agreement as amended, your only remedy is to cancel your Wap123 subscription and/or account. You will be deemed to have accepted the Agreement as amended thirty days after the amended agreement is posted or if you continue to use the Service; all other terms of this Agreement will continue in effect.

DESCRIPTION OF SERVICE

The Service is available at the Wap123 Website and includes everything on the site that may exist from time to time. Part of the Service makes available to you downloadable mobile entertainment, such as ringtones,  games and graphics (collectively, the "Downloads"). Once properly registered and after making proper payment, you will be permitted to download to compatible wireless telephones and other compatible devices certain Downloads through the Service. Through the Service, you will also be able to create buddy lists, sample streaming versions of certain Downloads and send messages, content and information to other members, subscribers and third parties through one or more means (the "Messaging Systems").

YOUR REGISTRATION OBLIGATIONS

In order to use the Service, you must register and provide certain information (e.g., name, country or territory of residence and billing information) to Wap123 ("Registration Data"). You agree that you will use the Service only in the country or territory where you currently reside. You agree to provide current, complete and accurate Registration Data at the time you register and that you will update your Registration Data as necessary to keep it current, complete and accurate in the "My Account" area of the Wap123 Website. Wap123 will use your Registration Data in accordance with its privacy policy, which you can review at . Please review this privacy policy before you complete the registration process or attempt to use or access the Service.
You agree that you will not allow others to use your member name, password and/or account. You agree to indemnify and hold Wap123, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, harmless for any improper, unauthorized or illegal uses of your member name, password and/or your account. This includes illegal, unauthorized or improper use by anyone to whom you have given permission to use your member name, password and/or account.

USE OF SERVICE

Service. You may use the Service only in accordance with the terms and conditions of this Agreement and any amendments as well as any additional terms that may be presented in connection with any particular feature or function of the Service from time to time.

The Service is for your personal use. You understand and agree that you may not transmit or re-transmit, broadcast or re-broadcast or make any commercial use of the Service, including the Downloads. For example, you may not copy or distribute the Service or the Downloads in any manner not expressly authorized by the Service.

You may not attempt (or authorize, encourage or support others' attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Service, including the Downloads. You agree to advise Wap123 promptly of any such unauthorized use(s) or attempt(s).

Downloads. You understand and acknowledge that the Downloads made available as part of the Service are owned by Wap123, its business partners, affiliates and/or licensors, as applicable, and are protected by intellectual property laws. Wap123 grants you a limited, non-exclusive, non-transferable, revocable right to download the Downloads to your compatible device solely for your own non-commercial use. You understand and agree that you may not download, reproduce, modify, display, perform, transfer, distribute or otherwise use the Downloads except as expressly provided in this Agreement. You understand and agree that you may not authorize, encourage or allow any Downloads used or obtained by you to be reproduced, modified, displayed, performed, transferred, distributed or otherwise used by any other party, and you agree that you will take all reasonable steps to prevent any unauthorized reproduction and/or other use of them.

Loss of Rights by Wap123. Wap123's rights to make certain Downloads available to you may expire. In such event, Wap123 will not deliver to you the license necessary to play back any such Downloads after the end of the period in which such rights expire. If Wap123 ceases making any such rights available, Wap123 will not refund any portion of your fees, but you may contact customer support to receive appropriate replacement rights.

Customer Support. Please direct any questions concerning the Service or any other Wap123-related issue, to a Wap123 customer service representative by e-mail at: support@wap123.com
CHARGES / BILLING

Agreement to Pay. By completing the registration process, you authorize Wap123 to charge the appropriate fees to your designated credit card or directly to your mobile telephone invoice, as selected by you, and if you select the monthly fee subscription plan, you authorize the continued billing each month until you cancel such subscription. If you cancel your account or subscription for any reason, Wap123 will not refund any of your fees paid to date. Monthly subscribers are billed on a 30-day cycle, which begins on the first day you sign up for the subscription and ends 30 days thereafter (each, a "Subscription Month"). Your credit card or telephone bill will be charged on the first day of each Subscription Month.

Right to Change Fees. All fees are subject to change upon notice from Wap123. Wap123 will provide you with reasonable notice of such change. If you do not accept the new fees (which will be applicable on a prospective basis only), you will have 10 days from such notice to cancel your subscription and/or your account.

Taxes. Wap123 reserves its right to collect applicable taxes and impose premium surcharges for certain features of the Service.

OBJECTIONABLE OR EXPLICIT CONTENT

Wap123 is not responsible to you for any content or materials constituting all or part of any Download or any other aspect of the Service that you might find objectionable.

COPYRIGHT INFORMATION

General. The Service, including the Downloads, and portions of them, may contain or comprise copyrighted and/or proprietary subject matter. Your rights with respect to your use of the same are governed by all the terms and conditions of this Agreement, all applicable laws, including but not limited to intellectual property laws, and any applicable end-user license agreements. For the avoidance of doubt, your use of the Service and the Downloads is under license; you will not obtain any ownership interest in any of them through this Agreement or otherwise.

Notices. Wap123 respects the intellectual property rights of others, and it expects you to do the same. If you know of or suspect that any use of the Service or the Downloads constitutes copyright infringement, please send a notice to customer service at Wap123 by email to support@wap123.com. The notice must contain the following information: (a) a physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner's behalf; (b) description of the copyrighted work(s) that is/are allegedly being infringed; (c) the location of the allegedly infringed work(s); (d) your current contact information (e.g. address, phone number, and email address); (e) a statement that you have a "good faith belief" that the use of the complained-of copyrighted work(s) is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you signed under penalty of perjury that all the information you provide in the notice is accurate and that you are the copyright owner or a person authorized to act on the copyright owner's behalf (all of this collectively is a "Notice").

TRADEMARK

All trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with the Service are the property of Wap123 and/or its affiliates, licensors and/or licensees. You may not copy, display or use any of these marks without prior written permission of the mark owner.

VIOLATION OF INTELLECTUAL PROPERTY RIGHTS

If Wap123 (a) receives a Notice alleging that you have engaged in infringing behavior or (b) reasonably suspects that your use of the Service or the Downloads violates Wap123's or others' intellectual property rights, Wap123 may, in its sole discretion, suspend or terminate your account with or without notice to you. If Wap123 suspends or terminates your account under this paragraph, it shall have no liability or responsibility to you, and Wap123 will not refund any portion of your fees charged to date.

NO RESALE

In addition to the restrictions set forth above, you acknowledge and agree that you may not copy, distribute, sell, resell or exploit for any commercial purposes, any portion of the Service (or any Downloads accessible on or through the Service), or your user name or password.

PROMOTIONS AND ADVERTISING

Wap123 and/or its business partners may present advertisements and promotional materials on or through the Service. Your participation in any Wap123 promotional event is subject to the terms and conditions associated with that event. Your correspondence or business dealings with, or participation in promotions of, any third-party advertisers on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third-party. You agree that neither Wap123 nor its business partners shall be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on the Service.

LINKS TO THIRD-PARTY SITES

The Service may present links to retailers and/or other third-party websites not owned or operated by Wap123. These links are provided only as a convenience to you. Neither Wap123 nor its business partners are responsible for the availability of these outside sites or their contents. You understand and agree that neither Wap123 nor its business partners are responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site. You should direct any concerns regarding these third-party sites to those sites' administrators.

MODIFICATIONS TO SERVICE

Wap123 reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice to you. You agree that neither Wap123 nor its affiliates or licensors shall be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

REMEDIES

You understand and agree that any unauthorized use of the Service or the Downloads would result in irreparable injury to Wap123 and/or its affiliates or licensors for which money damages would be inadequate, and in such event Wap123 its affiliates and/or licensors, as applicable, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you. Nothing contained in this paragraph or elsewhere in this Agreement shall be construed to limit remedies or relief available pursuant to statutory or other claims that Wap123, its affiliates and/or licensors may have under separate legal authority, including but not limited to, any claim for intellectual property infringement.

INDEMNITY

You agree to indemnify and hold harmless Wap123 and its agents, employees, representatives, licensors, affiliates, parents and subsidiaries from and against any and all claims, actions, demands, causes of action and other proceedings arising from or concerning your use of the Service, including the Messaging Systems and the Downloads (collectively "Claims"), and to reimburse them on demand for any losses, costs, judgments, fees, fines and other expenses they incur (including attorneys' fees and court costs) as a result of any Claims.

TERMINATION, CANCELLATION AND PLAN CHANGES

Wap123 may in its sole discretion terminate this Agreement or suspend your account at any time with or without notice to you in the event that you breach (or Wap123 reasonably suspects that you have breached) any provision of this Agreement. If Wap123 terminates this Agreement, or suspends your account for any of the reasons set forth in this paragraph, it shall have no liability or responsibility to you, and Wap123 will not refund any portion of your fees. You understand and agree that your cancellation of your account is your sole right and remedy with respect to any dispute with Wap123. This includes, but is not limited to, any dispute related to or arising out of: (1) any term of this Agreement or Wap123's enforcement or application of the same; (2) any policy or practice of Wap123, including its Privacy Policy, or Wap123's enforcement or application of these policies; (3) the Downloads or the Messaging Systems; (4) your use of and/or ability to access and use the Service; and (5) the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods. You can cancel your account by delivering notice to Wap123 at support@wap123.com. Cancellation for subscribers will take effect at the end of the Subscription Month during which you deliver notice to Wap123 and will take place immediately for all other members. Wap123 will send you an email confirming the same. If you are a subscriber who cancels his or her account near the end of the Subscription Month and your credit card or phone bill is charged for the next month's fee, please contact support@wap123.com to have that charge refunded.

Except as set forth above with respect to inadvertent charges, in the event that your account or subscription is terminated or canceled, Wap123 will not refund any fees.

If you are a monthly subscriber, you may also wish to change to a different plan, where available, than the one to which you may then be subscribed. If you choose to upgrade your plan, you will be charged the difference between the current and upgraded plan for the then-current Subscription Month. If you choose to downgrade your plan, you will be charged the lesser amount for the new plan during the next Subscription Month.

DISCLAIMERS

You understand and agree that your use of the Service and the Downloads is at your own sole risk. THE SERVICE AND THE DOWNLOADS ARE PROVIDED "AS IS" AND WITHOUT WARRANTY BY WAP123 OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS (THE "WAP123 ENTITIES"), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, WAP123 AND THE WAP123 ENTITIES, AS APPLICABLE, EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT. THERE IS NO WARRANTY THAT THE SERVICE OR THE DOWNLOADS WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE. WAP123 AND/OR THE WAP123 ENTITIES, AS APPLICABLE, DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR THE DOWNLOADS WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. YOU WILL NOT HOLD WAP123 AND/OR THE WAP123 ENTITIES, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING THE SERVICE OR USING THE SERVICE, AND/OR THE DOWNLOADS INCLUDING, BUT NOT LIMITED TO, ANY INFECTIONS OR CONTAMINATIONS OF YOUR DEVICES YOU USE TO ACCESS THE SAME OR TO TRANSFER DOWNLOADS THAT MAY RESULT FROM THAT USE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO WAP123 AND/OR THE WAP123 ENTITIES AS APPLICABLE.

UNDER NO CIRCUMSTANCES SHALL WAP123 AND/OR THE WAP123 ENTITIES AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE AND/OR THE DOWNLOADS.

UNDER NO CIRCUMSTANCES SHALL WAP123 AND/OR THE WAP123 ENTITIES AS APPLICABLE, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE AND/OR THE DOWNLOADS, EVEN IF WAP123 AND/OR THE WAP123 ENTITIES AS APPLICABLE, HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, WAP123 AND/OR THE WAP123 ENTITIES AS APPLICABLE, SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED $100.

LAW AND LEGAL NOTICES

This Agreement and any other terms or documents referred to herein represent your entire agreement with Wap123 with respect to your use of the Service. You understand and agree that, except as expressly set forth herein, this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement. If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. Wap123 failure to pursue any available claim or defense pursuant to this Agreement or otherwise will not be a waiver of such claim or defense. The headings used in this Agreement are for convenience only, and will have no effect on the interpretation or legal enforceability of the terms herein. The laws of the State of New York, excluding its conflicts-of-law rules, govern this Agreement and your use of the Service, including the Messaging Systems and the Downloads. You expressly agree that the courts in the State of New York, New York County have exclusive jurisdiction over any claim or dispute with Wap123 or relating in any way to your account or your use of the Service, the Messaging Systems or the Downloads. You further agree and expressly consent to personal jurisdiction over you in the federal and state courts of New York County in connection with any such dispute including any claim involving Wap123 or its partners, parents, licensors, affiliates, subsidiaries, employees, contractors, officers, directors or suppliers.