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User Agreement

This agreement (the "Agreement") is entered into by and between you ("you") and Mochi Media, Inc. ("Mochi Media") regarding your use of all aspects of Mochi Media services. By using the Mochi Ads Service, you consent to be bound by these terms and conditions. For clarity, these terms and conditions apply only to participants in the Mochi Ads Service. Unless otherwise explicitly specified, all non-Mochi Ads Services offered by Mochi Media are governed by the Mochi Media Terms of Service

1.0 The Service

Mochi Media, Inc.. (“Mochi Media”) has developed www.mochimedia.com (the “Website”) and the Mochi Ads service as a computer online service that provides online game-related services to users who develop and publish games (collectively, the “Mochi Ads Service”). The Service is accessible to you through a personal computer, or other access device, via the Website using a communications connection (e.g., modem and telephone line) using the software made available to you thorough Mochi Ads (“Mochi Ads Software”) and the guidelines provided on the Website (the “Software Guidelines”). Mochi Media 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. You agree that Mochi Media shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Service.

2.0 Modifications to this Agreement

MOCHI MEDIA RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY THIS AGREEMENT AT ANY TIME BY POSTING A NOTICE ON THE WEBSITE, OR BY SENDING YOU A NOTICE VIA EMAIL. You shall be responsible for reviewing and becoming familiar with any such modifications, which shall be effective when posted on the Website or when notice is sent to you. Your use of the Service after posting or notice constitutes your acceptance of the terms and conditions of this Agreement as modified. This Agreement, together with the Mochi Media Privacy Policy and DMCA POLICY and any other legal notices published by Mochi Media on the Website shall constitute the entire Agreement between you and Mochi Media concerning the Service.

3.0 Eligibility

By using the Service, you represent and warrant that:

Your account, profile, and all associated Content (as defined below) may be deleted and your membership may be terminated without warning if Mochi Media believes that you are in breach of any of the foregoing representations and warranties. MOCHI MEDIA RESERVES THE RIGHT TO REFUSE PARTICIPATION TO ANY APPLICANT OR USER AT ANY TIME IN ITS SOLE DISCRETION.

4.0 Service Access

4.1 Subject to your compliance on a continuing basis with all of the terms and conditions of this Agreement, Mochi Media hereby grants you permission to use the Service only as set forth in this Agreement, and provided that:

Mochi Media reserves the right in its sole discretion to block access or discontinue services to offenders, and to investigate and take appropriate legal action against anyone who, in Mochi Media's sole discretion, violates this provision, including without limitation, reporting you to law enforcement authorities.

4.2 Account, Password and Security. You will receive a password and account designation upon completing the Service’s registration process. You may never use another's account, username or password without permission. When creating your account, you must provide accurate and complete information. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password or account. You agree to (a) immediately notify Mochi Media of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. Mochi Media shall not be liable for any loss or damage arising from your failure to comply with this Section or any use of your password or account whether authorized by you or not. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. You must notify Mochi Media immediately of any breach of security or unauthorized use of your account. While you may be required to expressly accept or reject these Terms of Service when you register; you agree that any requirement that you do so does not in any way vitiate your assent to comply with the Terms of Service. Although Mochi Media will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of Mochi Media or others due to such unauthorized use.

4.3 Links and Frames. The Service may provide, or third parties may provide, links to other World Wide Web sites or resources. Your use of other sites or resources are governed by terms on or related to such sites or resources. Use of such sites or resources is at your own risk. Because Mochi Media has no control over such sites and resources, you acknowledge and agree that Mochi Media is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that Mochi Media 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 site or resource.

5.0 Intellectual Property Rights

5.1 Content. The content on the Website and available through the Service, including without limitation, the games, text, software, scripts, graphics, files, images, photos, sounds, music, videos, advertisements, interactive features and the like (collectively "Content") and the trademarks, service marks and logos contained therein ("Marks"), are owned by or licensed to Mochi Media, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Mochi Media reserves all rights not expressly granted in and to the Service and the Content. You agree to not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any other purposes whatsoever any Content, including, but not limited to, image, audio, and visual content, Marks, third party User Content, or other proprietary rights not owned by you, (i) without the express prior written consent of the respective owners, and (ii) in any way that violates any right of any third party. If you download or print a copy of the Content for personal use, you must retain all copyright and other proprietary notices contained therein.

5.2 Mochi Ads Software and Content. The Mochi Ads Software is owned by or licensed to Mochi Media. Mochi Media grants you a limited, revocable, non-exclusive license to use, copy, and incorporate the Mochi Ads Software in your game(s) (“Game(s)”) solely in conjunction with the Service consistent with this Agreement and the Software Guidelines. You may not modify, resell, redistribute, reverse engineer or otherwise manipulate the Mochi Ads Software or Service. Except as expressly provided for in this Section, you are not granted any other rights, title or interest in the Mochi Ads Software or Service. You shall not copy the Mochi Ads Software except as set forth herein. Any copy of the Mochi Ads Software or Service that you make must contain the same copyright and other proprietary notices that appear on or in the Mochi Ads Software or Service.

5.3 User Submissions

6.0 Term

6.1 This Agreement shall remain in full force and effect while you use the Service. You may terminate your use of the Service at any time by following the instructions on the Website. You agree that Mochi Media, in its sole discretion, may terminate your password, account (or any part thereof) or use of the Service, and remove and discard any User Submissions within the Service, for any reason or no reason, including, without limitation, for lack of use or if Mochi Media believes that you have violated or acted inconsistently with the letter or spirit of this Agreement. Mochi Media may also in its sole discretion, for any reason or no reason and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Agreement may be effected without prior notice, and acknowledge and agree that Mochi Media may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Mochi Media shall not be liable to you or any third-party for any termination of your access to the Service.

7.0 ADVERTISING PARTICIPATION

7.1 Overview. Mochi Media provides an optional program (the “Advertising Program”) by which you can incorporate software instructions to allow Mochi Media to insert advertisements (“Ads”) from advertisers (“Advertisers”) that may be sourced directly by Mochi Media or from third parties (“Ad Partners”) into your games. By uploading your Content and opting to participate in the Mochi Ads distribution program (“Distribution Program”), you must embed MochiAd code into your game at least once, and by inserting code into your games to prompt Mochi Media to insert any Ads in your Game(s), you agree to the additional terms of this Agreement that apply to the Ads.

7.2 Participation. Participation is subject to approval from Mochi Media and/or its Ad Partners. Mochi Media reserves the right to deny participation to or revoke its prior approval of any user in its sole discretion.

7.3 Content Rights. You represent and warrant that you have all necessary rights in and to your User Submissions to include advertisements in your Games. In addition to any other remedies that may be available to Mochi Media, your infringement of any intellectual property rights including but not limited to any violation of any copyright, will result in termination of participation in the Advertising Program, and a forfeiture of any payment due.

7.4 Prohibited Uses. You shall not yourself, nor authorize or enable any third party to, (i) directly or indirectly generate queries, impressions or clicks on any Ad(s) through any manual, automated, or otherwise fraudulent means, including but not limited to repeated clicks, the use of robots or other automated query tools, (ii) edit or modify the information contained in any Ad, including but not limited to the presentation or the URL or URL mapping that may exist into the Ad unit, or (iii) run the Ad through any additional service that rewrites the URLs contained in the Ad. You agree that any violation of (or attempt to violate) the foregoing is a material breach of this Agreement and that Mochi Media may suspend your account and pursue legal remedies against you. A breach of this Agreement will result in your forfeiture of any payment due.

7.5 Termination. You may terminate participation in the Distribution Program at any time by opting out of the Distribution option presented to you at the mochiads.com website. Within 30 days of your opting out of the Distribution Program, Mochi Media will use commercially reasonable efforts to cease further distribution of your games. However, after you opt out of the Distribution Program, you acknowledge that previously distributed games may continue to be available for play by end users; and you will continue be paid for all ads served on such previously distributed content so long as you maintain an account with Mochi Media. Upon your termination of the Distribution Program, you may in certain cases be prohibited from re-enrolling in the Distribution Program for a period of time based on agreements with Advertising Partners. Mochi Media, in its sole discretion, may terminate your participation in some or all of the Distribution Program or the Advertising Program at any time for any reason with or without notice.

7.6 No Guarantee. Mochi Media makes no guarantee as to the level of impressions or clicks on any Ad, or the amount of any payment to be made to you under this Agreement. Mochi Media makes no guarantee as to click-thru performance for advertising in Flash games, including but not limited to all current and future versions of Flash as compared to similar Ads placed in HTML pages.

7.5 Payment. In connection with the Advertising Program, Mochi Media sells advertisements (“Ads”) that generate revenue on the basis of the number of valid revenue-generating Ad impressions, clicks, or transactions displayed and confirmed in your Game(s) as determined by Mochi Media and its Ad Partners. In response to Ads viewed in your Game(s), Mochi reserves variable percentages it receives for payments to participants in the Advertising Program net of all payment defaults, chargebacks, bad debt, sales commissions, discounts, refunds, and processing fees related to the Ads and Ad payments that Mochi Media may incur in operating the Advertising Program (the “User Revenue Share”). The net amount of each User Revenue Share shall be determined in Mochi’s sole discretion based on various factors, including, but not limited to the number of Ads viewed in your Game(s), the type of Ads viewed in your Game(s), the time the Ads are served, and from where the Ad request is received. Mochi Media reserves the right to change the User Revenue Share at any time.

7.8 Copyrights. Notwithstanding anything to the contrary, all Ads, even if displayed within your Game, shall and do remain copyright of the advertiser. You obtain no rights in any Ads by virtue of utilizing the Service.

8.0 Disclaimer of Warranty

TO THE FULLEST EXTENT PERMITTED BY LAW, MOCHI MEDIA, ITS SUPPLIERS, AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NEITHER MOCHI MEDIA NOR ITS SUPPLIERS, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS, MAKES ANY WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE SERVICE, CONTENT, OR THE CONTENT OF ANY SITES LINKED TO THE SERVICE, AND NONE ASSUMES ANY LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE SERVICE, ADS, OR CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY; AND/ OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE SERVICE OR ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. MOCHI MEDIA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED SERVICE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND MOCHI MEDIA WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. THE SERVICE IS CONTROLLED AND OFFERED BY MOCHI MEDIA FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. MOCHI MEDIA MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.

9.0 Limitation of Liability

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE, CONTENT AND MOCHIADS SOFTWARE IS AT YOUR OWN RISK. IN NO EVENT SHALL MOCHI MEDIA, ITS SUPPLIERS, AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOST PROFITS, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE FORESEEABLE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT COMPANY SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS SOLELY AND ENTIRELY WITH YOU. THESE LIMITATIONS SHALL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT. YOU SPECIFICALLY ACKNOWLEDGE THAT MOCHI MEDIA SHALL NOT BE LIABLE FOR USER SUBMISSIONS OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS SOLELY AND ENTIRELY WITH YOU. IN NO EVENT WILL EITHER PARTY’S LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID UNDER THIS AGREEMENT BY MOCHI MEDIA TO YOU. 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 may not apply to you.

10.0 Indemnity

You agree to defend, indemnify and hold harmless Mochi Media, and its distribution partners, subsidiaries, affiliates, and their directors, officers, agents, members, shareholders, co-branders or other partners, employees, and Ad Partners from any liabilities, losses, actions, damages, claims, obligations, costs, expenses or demands (including, but not limited to attorneys’ fees, costs and expenses) arising out of (a) content you provide to Mochi Media or otherwise transmit or obtain through the Service, (b) your use of the Service, (c) your connection to the Service, (d) your violation of any term of this Agreement or your representations and warranties set forth above, (e) your violation of any rights of another, including without limitation any copyright, property, or privacy right, (f) your failure to perform your obligations hereunder, or (g) any claim that one of your User Submissions caused damage to a third party.

11.0 Third Party Beneficiaries

You agree that any Ad Partner that supplies any Ad or any distribution partner that distributes your Game(s) shall be third party beneficiary with respect to this Agreement, and that any such Ad Partner or distribution partner shall have the right to enforce such provisions in its own name as if the Ad Partner or distribution partner were Mochi Media. You further agree that you shall not raise lack of privity as a defense against any Ad Partner or distribution partner seeking to enforce the provisions of this Agreement.

12.0 Publicity.

You agree that Mochi Media may use your name, logo, and the title(s) and logo(s) of your Game(s) in presentations, marketing materials, customer lists, financial reports and Web site listings of customers.

13.0 Miscellaneous

This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes all previous written or oral agreements between the parties with respect to such subject matter. In the event of a conflict between the terms of this Agreement and any other terms set forth in the Website or Service (including without limitation, the terms of the FAQ sections of the Website) the terms of this Agreement shall supersede and control. This Agreement shall be construed in accordance with the laws of the State of California, without regard to its conflict of laws rules. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Each provision of this Agreement is intended to be severable. If any term or provision hereof shall be determined by a court of competent jurisdiction to be illegal or invalid for any reason whatsoever, such provision shall be severed from this Agreement and shall not affect the validity and enforceability of the remainder of this Agreement. You may not assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under this Agreement without Mochi Media’s prior written consent, and any attempt to do so without that consent will be void. Mochi Media may assign this Agreement to a successor in interest in connection with a change of control, a sale of substantially all of its assets, or a merger, acquisition, public offering or other reorganization transaction. The section headings used herein are for convenience only and shall not be given any legal import. The parties shall attempt to resolve any controversy or claim arising out of or relating to the creation, performance, termination and/or breach of this Agreement in the first instance through good faith negotiation or mediation between the parties. Any claims or disputes arising from or related to this Agreement shall be resolved through binding arbitration under the Federal Arbitration Act, 9 U.S.C. § I et. seq. via the American Arbitration Association located in San Francisco, California, U.S.A. and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, and solely with respect to breaches or threatened breaches of this Agreement, either party to this Agreement may seek a temporary restraining order and injunction to protect its legal rights or interests, without the need to post bond in any court having jurisdiction.

If you have any questions regarding this Agreement or if you wish to request any information from Mochi Media, please contact Mochi Media at the following address:

Mochi Media, Inc.
611 Mission Street, 5th Floor
San Francisco, CA USA 94105

Last updated: December 14, 2007