Terms and Conditions of Sale

The following terms and conditions shall apply for the use of the DMD Mobile Holdings, Inc. (“DMD Mobile”) services.

Effective May 1, 2007

THE FOLLOWING TERMS AND CONDITIONS ARE A LEGALLY BINDING AGREEMENT AND BY SUBSCRIBING TO ANY OF DMD MOBILE’S SERVICES YOU ARE INDICATING THAT YOU ACKNOWLEDGE AND AGREE TO BE BOUND BY THESE TERMS.

Notice

If You do not agree to be bound by these terms and conditions You hereby acknowledge that Your sole remedy is to cease using this service and not to complete the registration process. If You continue to use the DMD Mobile service, Your continued use of the service will be viewed as acceptance of these terms and conditions and You will therefore be bound by this agreement.

Description Of Service

The DMD Mobile service allows for the purchase of binary and text mobile entertainment services as well as other mobile entertainment based services delivered to consumers cell phones.

Use Of The Service

DMD Mobile shall rely on the assumption that the entity or person who is using the DMD Mobile service is responsible for the financial responsibilities of the wireless account through which the DMD Mobile services are being accessed. DMD Mobile will not be responsible for entities or individuals claiming that they did not authorize the use of their wireless cell phone for entertainment purposes. You agree that You are over the age of 18 or have received Your parent’s or guardian’s permission to use the wireless phone for premium services. If You have subscribed to a DMD Mobile service, DMD Mobile will and shall be entitled to conclude that You have complied with this section and that You are either 18 or have obtained the proper permission.

DMD Mobile’s services are for Your personal use. You may not transmit or re-transmit, broadcast or re-broadcast or use any part of this service for commercial use.

Problems Receiving Products
If You order a service and are unable to download it, let us know immediately by contacting us at support@dmdmh.com. You can also contact us at 1.866.883.3298.

Refund Policy
Refunds will be reviewed and issued on a case by case basis.

Copyright Restrictions
Your download of any content provides You with a limited, non-exclusive, non-transferable, revocable right to download any content provided by DMD Mobile 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 downloaded content except as expressly provided in this Agreement. You understand and agree that You may not authorize, encourage or allow any downloaded content 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. If You breach this license, You will be liable for damages incurred by DMD Mobile as well as other third party partners of DMD Mobile.

Marketing Information
We will not share or use any details from Your payment (except to arrange and/or clarify payment terms) with anyone outside DMD Mobile. By subscribing to the DMD Mobile services You agree that DMD Mobile may contact You from time to time with various product and service offers provided by DMD Mobile. If You do not wish to receive any offers from DMD please send an opt out request to support@dmdmh.com.

Registration

Text Alerts via Web Registration. This offer is for Cingular, Verizon Wireless, Sprint, Nextel, T-mobile, Alltel, Dobson, Boost Mobile and most other mobile phone carrier customers in the US. This offer is for Rogers, Bell, SaskTel and Telebec customers in Canada. This is a monthly subscription service and You will be automatically sent one message per day, some text alert services may send two to three messages per week, at DMD Mobile’s and our content partner’s sole discretion. To unsubscribe please send a text message with any of the following words QUIT, CANCEL, UNSUBSCRIBE, END, or STOP to 95763. You will be sent up to one text message per day but only one charge of $9.99 per month for Cingular, Cingular Blue, Sprint, Verizon, Nextel, Boost and T-Mobile customers or any other not listed carrier’s customers or CA $1.00 per message for Rogers, Bell, SaskTel, and Telebec customers will be billed upfront to Your cell phone or deducted from Your prepaid balance. By entering Your personal PIN number, that we will send to You and You enter that number on the registration website or You reply YES from Your handset, You are agreeing to these terms and conditions and agree to pay all charges. If You are not the owner of the mobile phone You intend to use for this subscription You must obtain the permission from the owner or account holder before participating. If You are under the age of 18 You must get parental permission and consent before subscribing. Refunds will not be issued to persons or entities claiming that they did not authorize the use of their wireless account to receive text messages or persons or entities claiming they did not authorize the use of their wireless account to be charged. No partial month refunds will be issued. Standard text messaging rates and other charges may apply.

Text Alerts via Handset Registration. This offer is for Cingular, Verizon Wireless, Sprint, Nextel, T-mobile, Alltel, Dobson, Boost Mobile and most other mobile phone carrier customers in the US. This offer is for Rogers, Bell, SaskTel and Telebec customers in Canada. This is a monthly subscription service and You will be automatically sent up to one message per day, some text alert services may send two to three messages per week, at DMD Mobile’s and our content partner’s sole discretion. To unsubscribe please send a text message with any of the following words QUIT, CANCEL, UNSUBSCRIBE, END, or STOP to 95763. You will be sent one text message per day but only one charge of $9.99 per month for Cingular, Cingular Blue, Sprint, Verizon, Nextel, Boost and T-Mobile customers or any other not listed carrier’s customers or CA $1.00 per message for Rogers, Bell, SaskTel, and Telebec customers will be billed upfront to Your cell phone or deducted from Your prepaid balance. By replying YES to the message containing Your personal PIN number from Your handset, You are agreeing to these terms and conditions and agree to pay all charges. If You are not the owner of the mobile phone You intend to use for this subscription You must obtain the permission from the owner or account holder before participating. If You are under the age of 18 You must get parental permission and consent before subscribing. Refunds will not be issued to persons or entities claiming that they did not authorize the use of their wireless account to receive text messages or persons or entities claiming they did not authorize the use of their wireless account to be charged. No partial month refunds will be issued. Standard text messaging rates and other charges may apply.

Warranties and Limitations on Liability
THE DMD MOBILE SERVICE, MATERIALS AND WEB SITE, INCLUDING BUT NOT LIMITED TO SERVICES AND MATERIALS SUPPLIED BY THIRD PARTIES THROUGH DMD MOBILE, ARE PROVIDED ON AN "AS-IS" BASIS WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTY, NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE WITH REGARD TO OUR CONTENT, INFORMATION, PRODUCTS, OR SERVICES PROVIDED HEREUNDER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE FURTHER DISCLAIM THAT OUR SERVICE WILL BE FREE FROM BUGS, DEFECTS, OR ERRORS OR THAT THE SERVICE WILL BE ACCESSIBLE WITHOUT INTERRUPTION.

DMD Mobile warrants that:

IN NO EVENT SHALL WE BE LIABLE TO YOU UNDER THIS AGREEMENT FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INFORMATION OR MATERIAL OF ANY KIND, LOST PROFITS, LOSS OF BUSINESS OR OTHER ECONOMIC DAMAGE, AND INJURY TO PROPERTY IN CONNECTION WITH, ARISING OUT OF, OR AS A RESULT OF THE SERVICES, THE TECHNICAL SYSTEMS, OR BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT. SUCH LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY OF SUCH DAMAGES.
Our entire liability for any claim concerning its performance or nonperformance in connection with this Agreement or the conduct of the parties in furtherance hereof under any legal theory, whether contract, tort, product liability, breach of implied duty or otherwise shall be limited to the amount charged and collected by DMD Mobile for the binary or text services.

Indemnification

You shall defend, indemnify, and hold harmless DMD (and its directors, officers, shareholders, employees, agents and third party content partners) from and against all losses, damages, costs, and expenses, of every kind, including costs of court or arbitration and reasonable attorneys’ fees and disbursements, that are based upon or otherwise in respect of any third party (i) claim, suit, demand, or action for Your breach of any of your representations, warranties, or obligations under this Agreement, or its acts or omissions, or (ii) claim, suit, demand, or action for infringement or violation of that third party’s intellectual property or proprietary rights. The party seeking the defense, indemnification, and hold harmless protection under this Paragraph shall (i) give You prompt notice, (ii) cooperate reasonably with You in any defense and settlement, and (iii) permit You to control the defense and settlement with counsel of Your own selection.

Applicable Law.

This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to its principles of the conflict of laws.

Dispute Resolution.

Other than with respect to one party’s violation or alleged violation of the other party’s (or its licensors’) intellectual property rights or a breach of the confidentiality provisions of this Agreement, all disputes that cannot be resolved by the parties arising out of this Agreement shall be initially resolved in mediation. If, after mediation is attempted and the parties can not come to a settlement then the dispute will solely and finally be settled by arbitration. The arbitrator(s) shall be experienced in transactions of the kind represented by this Agreement. Arbitrations shall be conducted according to the Commercial Arbitration Rules of the American Arbitration Association and the place of arbitration to be agreed upon by both parties. All arbitration proceedings shall be conducted in private and all documentation and information pertaining to any arbitration shall be confidential information. Both DMD Mobile and You agree that the award of the arbitrator shall be (i) the sole and exclusive remedy between them regarding any claims, counterclaims, or issues presented to the arbitrator, (ii) final, binding, and not subject to judicial review, and (iii) that judgment on the arbitration award may be entered and enforced in any court having competent jurisdiction over the parties or their assets. Notwithstanding the submission of any dispute to arbitration under this Agreement, the parties shall continue to cooperate and act in good faith to perform their respective obligations under this Agreement during any such arbitration.

Severability

If any provision of this Agreement is found invalid or unenforceable pursuant to a judicial or arbitration decree or decision of competent jurisdiction, the remainder of this Agreement shall remain valid and enforceable according to its terms.

Modifications

Any modifications or amendments to these Terms and Conditions may be made from time to time by DMD Mobile at any time at their sole discretion and shall become effective on the date posted. Please check back regularly for any changes.

Complaints
If You have any questions or comments, please let us know by contacting us immediately at support@dmdmh.com or at 1.866.883.3298.