Mobile Posse Content Partner Terms and Conditions

All references in this Mobile Posse Content Partner Terms and Conditions ("Standard Terms") to the "Agreement" are references to (and shall be construed as references to) the "MOBILE SERVICES AGREEMENT", which agreement references these Standard Terms and incorporates the Standard Terms by reference.

1. Indemnification.

1. Scope of Indemnification Each Party shall indemnify, hold harmless and defend the other Party, and any or all of the other Party's subsidiaries and affiliates and their respective officers, directors, managers, agents and representatives (collectively "Indemnitees"), from and against any and all third party claims, actions, suits, and proceedings which may at any time be brought against the Indemnitees as well as from and against all related liabilities, damages, judgments, settlements, fines, penalties, costs or expenses (including but not limited to reasonable attorneys fees and costs or expenses of investigating or defending any actions or threatened actions) suffered or incurred by the Indemnitee(s) arising out of, incident or relating to the first Party's: (i) breach of any term, condition, representation, or warranty of the Agreement; (ii) misuse of the Service or any Data or Report generated therefrom; (iii) violation of any applicable law, rule or regulation in connection with the Service; and (iv) violation of any third party Intellectual Property Rights. A Party seeking indemnification pursuant to this Section 1 of the Standard Terms (an "Indemnified Party") shall cooperate as fully as reasonably required in the defense of any such claim.
2. Notice and Participation. An Indemnified Party must give prompt written notice to the Party from whom indemnification is sought pursuant to this Section 1 of the Standard Terms (the "Indemnifying Party"); provided, however, that failure to give prompt notice will not relieve the Indemnifying Party of any liability hereunder (except to the extent the Indemnifying Party has suffered actual material prejudice by such failure). The Indemnifying Party and the Indemnified Party will reasonably cooperate in the defense or prosecution of any third party claims. The Indemnifying Party will control the defense of the action with counsel reasonably acceptable to the Indemnified Party. The Indemnified Party may participate at its own cost in such action.

Disclaimer of Warranties. Any information or services included in or available through the Service may include inaccuracies or typographical or other errors. MP or its respective third party licensors, suppliers or vendors may make improvements or changes in the Service at any time or from time to time, with or without notice. MP does not represent or warrant that the Service, any part thereof will be uninterrupted or error-free, that defects will be corrected.

THE SERVICE IS PROVIDED "AS IS".

THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY MP OR ANY OF ITS SUBSIDIARIES, AFFILIATES OR REPRESENTATIVES (AND MP, ITS SUBSIDIARIES AND AFFILIATES HEREBY EXPRESSLY DISCLAIM ANY SUCH WARRANTIES, CLAIMS OR REPRESENTATION) REGARDING OR WITH RESPECT TO THE SERVICE OR ANY PARTS THEREOF, INCLUDING ANY WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. NEITHER MP NOR ANY OF ITS SUBSIDIARIES OR AFFILIATES, NOR ANY OF THEIR RESPECTIVE THIRD PARTY LICENSORS WARRANT THAT THE SERVICE WILL MEET CUSTOMER'S NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING DISCLAIMERS AND EXCLUSIONS ARE A MATERIAL AND ESSENTIAL PART OF THE AGREEMENT AND HAVE FORMED THE BASIS FOR DETERMINING THE FEES CHARGED BY MP FOR THE SERVICE HEREUNDER. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY AND THEREFORE SUCH DISCLAIMER MAY NOT APPLY TO CUSTOMER.

2. Limitation of Liability. Neither MP nor Customer, nor any of their respective subsidiaries or affiliates or any of their respective third party licensors, vendors or suppliers will be liable for any indirect, special, punitive, consequential or incidental damages (including but not limited to lost profits or lost data collected through the Service), and whether based on a claim or action for breach of contract, warranty, negligence, strict liability or any other tort, breach of any statutory duty, indemnity, contribution, or otherwise under any legal or equitable theory, and regardless of whether MP or Customer or any of their respective subsidiaries or affiliates or any of their respective third party licensors has or have been advised of the possibility of such damages. The exclusions contained in this Section 2 of the Standard Terms shall apply regardless of the failure of the exclusive remedy provided in the following paragraph.

Not with standing anything to the contrary contained in the Agreement, the total cumulative liability of each Party and their respective subsidiaries, affiliates and third party licensors, to the other Party or to any other person or entity, for any loss or damages resulting from any claims, demands or actions arising out of, or relating to the Agreement, or any access or use of or inability to access or use the Service or any part or feature thereof, shall not exceed two times the cumulative amount of all fees actually paid by one Party to the Other Party in the six (6) months preceding the event giving rise to the cause of action.

Customer's remedies under the Agreement are exclusive and are limited to those expressly provided for in the Agreement...
Claims brought by either Party (or anyone claiming by, through or under either Party) and arising from or in connection with the Agreement must be brought within one (1) year of the date that the event giving rise to such claim was known, or reasonably should have been known, by the Party seeking to bring the claim (or anyone claiming by, through or under such Party) or shall be forever barred. For the avoidance of doubt, the foregoing applies to any and all claims for use of or access to, or inability to access or use the Service or any part or feature thereof.

3. Remedies.

1. Nonexclusive. Each Party acknowledges that the Other Party would be irreparably damaged if certain provisions of the Agreement are not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of the Agreement, the other Party shall be entitled, in addition to all other rights and remedies available under the Agreement or at law or in equity, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of those provisions of the Agreement. The remedies granted in the Agreement are not exclusive and each Party reserves the right to exercise any or all remedies available at law or in equity, all subject to and in accordance with the other terms and conditions of the Agreement.
2. Other Cancellation. MP may unilaterally cancel all or any part of any Services: (i) if any part of the Service becomes the subject of a claim that such service or content infringes the rights of any third party or that MP otherwise does not have the right to use or to permit others to use it; (ii) if any part of the Services becomes illegal or contrary to any applicable law or regulation; (iii) if MP for any other reason discontinues the Service or any part thereof; or (iv) pursuant to any special conditions in any addendum or Schedule hereto. If MP cancels all or part of the Service, MP's only obligation to Customer will be to notify Customer reasonably promptly (in the case of subsection (iii) above, not less than fifteen (15) days in advance).

4. Amendment/Modification of Agreement. MP at all times reserves the right to, and may, change, modify or amend policies governing the Service or any part, component or feature thereof, from time to time, by posting the modification or amendment to the MP Site and providing Customer with thirty (30) days notice of such modification or amendment. Except as otherwise provided in the Agreement, no amendment or modification of the Agreement will be binding unless in writing and signed by a duly authorized representative of MP and Customer. Neither the course of conduct between the Parties nor trade practice shall serve to modify any provision of the Agreement.
5. Miscellaneous.

1. Severability. If any provision of the Agreement is held by a court of competent jurisdiction or arbitral body unenforceable for any reason, such provision shall be reformed to the extent reasonably necessary to make enforceable to the maximum extent permissible, so as to effect the intent of the Parties, and the remainder of the Agreement shall continue in full force and effect.
2. Governing Law/Exclusive Jurisdiction. Customer agrees that: (i) the Service shall be deemed solely based in the state of New York and (ii) the Service shall be deemed a passive Web site that does not give rise to personal jurisdiction over MP, either specific or general, in jurisdictions other than the state of Virginia / New York. The Agreement shall be governed by and construed in accordance with the laws of the state of Virginia/New York, without regard for any principles of conflicts of laws. Each Party agrees to submit to the exclusive and personal jurisdiction of the stated and federal courts located in Fairfax County, Virginia New York, New York.
3. Notices. Except as otherwise provided in the Agreement, whenever any notice, request, consent, approval, or other communication shall be given by one Party to the other, such communication shall be delivered: (a) by a reputable overnight courier, in the case of notices to MP to Notices to the following address: 1320 Old Chain Bridge Road, Suite 240, McLean, VA 22101; and in the case of notices to Customer to the addresses named in the Registration Form, or (b) to such other address as either Party may specify in notice given hereunder. Notice shall be deemed given upon receipt.
4. United Nations Convention. The United Nations Convention on Contracts for the International Sale of Goods and Computer Information Transaction Act shall not apply to the Agreement.
5. Assignment. Neither Party may assign or otherwise transfer any of its rights or delegate any of its obligations under the Agreement without the express prior written consent of the other Party, which consent may be withheld in the non-requesting Party's sole discretion; provided that either Party may assign the Agreement to an Affiliate, a controlled subsidiary or business successor of such Party on written notice to the other Party. Subject to the foregoing restrictions on assignment and delegation, the Agreement will be binding upon and inure to the benefit of the Parties, their respective personal representatives, and permitted successors and assigns.
6. Independent Contractors. The relationship between MP and Customer is not one of a legal partnership or joint venture but rather, is one of independent contractors.
7. References. All references to the Agreement include references to the Exhibits to the Agreement as appropriate. All references to articles, sections, subsections, paragraphs, subparagraphs, schedules and exhibits are to articles, sections, subsections, paragraphs, subparagraphs, schedules and exhibits in or to the Agreement unless otherwise specified. The words "hereof", "herein", "hereunder" and words of similar import when used in the Agreement refer to the Agreement as a whole (including, for the avoidance of doubt, all Exhibits) and not to any particular provision of the Agreement. The term "including" is not limiting and means "including without limitation". In the computation of periods of time from a specified date to another specified date, the word "from" means "from and including", the words "to" and "until" each mean "to but excluding", and the word "through" means "to and including".
8. Headings. The section, paragraph and other titles or headings contained in the Agreement are for convenience of reference only, are not to be considered a part of the Agreement and shall not limit or otherwise affect in any way the meaning or interpretation of the Agreement.
9. No Waiver. No waiver of any provision of the Agreement shall be deemed a further or continuing waiver of such provision or any other provision, and failure to assert any right or provision under the Agreement shall not constitute a waiver of such right or provision.
10. Force Majeure. MP shall be excused from performance and liability under the Agreement to the extent that the cause of such liability or failure to perform are causes beyond its reasonable control including, without limitation, acts of nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), environmental disasters, acts of terrorism, wrongful acts of third parties, war, invasion, acts of foreign combatants, military or other usurped political power or confiscation, nationalization, government sanction or embargo, or the prolonged failure of electricity or other vital utility services. Customer may terminate the Agreement if any event of force majeure prevents it from receiving benefit of the Service for thirty (30) consecutive days.
11. Similar Agreements. Nothing in the Agreement will be deemed to limit or restrict either Party from entering into agreements with any other person or entity or from offering services to any third party, whether or not similar to any services provided hereunder.