MARKETING AGREEMENT BY AND BETWEEN BUONGIORNO USA, INC. AND

A.

B!USA has agreed to offer its technical platform, application and related operational and technical services to Marketer to enable end-users exposed to Marketer's distribution channels (collectively, "End-Users") to purchase Value Added Services (as defined below), pursuant to the terms and conditions of this Agreement.

B.

Marketer has agreed to advertise, market and promote B!USA's Value Added Services via Marketer's distribution channels, pursuant to the terms and conditions of this Agreement.

For purposes of this Agreement:

means each day of the week Monday through Friday, excluding any public holiday in the US.

The Agreement will automatically renew for successive one (1) year periods following the end of the Initial Term, unless and until the Agreement is terminated in accordance with Article 13 or upon 90 days written notice. The Initial term and any additional terms will be collectively referred to as the "Term".

The Agreement - upon signature of both parties - and, specifically, this Clause 2.3 act as a formal termination of all prior agreements between the B!USA and New Motion Inc. All clauses in this Agreement will supersede the terms of past contracts between the parties with the exception of any clause, term, or condition that survives prior contractual agreements between the parties including but not limited to Revenue Shares prior to the Term, Confidentiality, and Warranties.

MARKETER REPRESENTATIONS AND WARRANTIES. Marketer hereby represents and warrants to B!USA that:

Marketer shall advertise, market and promote B! Value Added Services to End-Users in accordance with the terms of this Agreement and pursuant to the means set forth on the attached Appendix A. In advertising, marketing and promoting Value Added Services to End-Users, Marketer shall exercise the requisite skill and care of a prudent marketing firm, and Marketer shall comply with all applicable laws, rules and regulations, including, but not limited to the federal laws commonly known as the CAN-SPAM Act and COPPA and any and all similar state laws, rules and regulations, as well as any laws, rules or regulations of the Federal Communications Commission or Federal Trade Commission. Marketer shall strictly adhere to marketing and customer management practices supported by the Mobile Marketing Association (MMA) on the Effective Date and any subsequent updates to industry guidelines made by the MMA during the Term.

No advertisement or promotion of B!USA's Value Added Services or any Content will be used in a dramatic fashion, as such term is understood in the industry, or in any manner which could be considered in bad taste or offensive; i.e., each advertisement and/or promotion will be used with regard to social convention and decency so as not to bring B!USA's Value Added Services, any Content and/or the underlying compositions, composers, Content rights owners or Content publishers into public disrepute or reflect adversely on B!USA's Value Added Services, any Content and/or the underlying compositions, composers, Content rights owners or Content publishers. No single underlying composition of Content will be used in connection with any branding, marketing, advertising or promotion of any B!USA Value Added Service or any Content, unless Marketer has obtained its own license to do so directly from the owner and/or publisher for the particular underlying composition.

Marketer shall separately obtain or secure (and maintain during the Term) any and all intellectual property licenses which are required for Marketer to advertise, market and/ or promote any Content, including without limitation, name and likeness rights, and that said materials shall not violate or infringe upon the rights of any third-party, including without limitation intellectual property rights and/or rights of privacy and publicity.

Marketer is fully empowered to enter into this Agreement and to perform its duties and obligations hereunder, that it is and shall at all times remain possessed of all rights necessary. for it to completely fulfill all of its material obligations hereunder, and that its entering into this Agreement and fulfilling such obligations does not and shall not infringe upon the rights of any third-party whatsoever.

All services provided by Marketer pursuant to this Agreement will conform in all respects with the Agreement and all applicable laws, rules and regulations that may be in force from time to time during the term of this Agreement.

Marketer has the unencumbered right and power to enter into this Agreement and that this Agreement is a binding obligation on Marketer.

 

B!USA REPRESENTATIONS AND WARRANTIES. B!USA hereby represents and warrants to Marketer that:

B!USA shall provide B!USA Value Added Services to End-Users in accordance with the terms of this Agreement and in a manner consistent with industry standards.

B!USA shall provide the physical connections between its technical platform and third-party mobile networks, as well as its premium short-code 65000, in order to deliver the operational and technical services necessary to deliver End-Users with B!USA's Value Added Services.

B!USA shall provide the physical connections between its technical platform and third-party mobile networks, to additional New motion Shortcodes including but not limited to the shortcode 31000, in order to deliver the operational and technical services necessary to deliver End-Users with New Motion's Value Added Services.

B!USA shall provide its technology platform, physically residing in Italy with all services managed from the U.S., and the necessary applications and content to provide the B!USA Value Added Services. The cost of all hardware and software, communication lines and connectivity and support for the same shall be borne by B!USA.

B!USA shall provide Marketer with Tier Technical Support and 2^nd Tier Technical Support as set forth in Appendix B.

All services provided by B!USA pursuant to this Agreement will conform in all respects with the Agreement and all applicable laws, rules and regulations that may be in force from time to time during the term of this Agreement.

B!USA has the unencumbered right and power to enter into this Agreement and that this Agreement is a binding obligation on B!USA.

Neither Party shall make any announcement or release relating to this Agreement or the terms or conditions of this Agreement, nor, without the prior written consent of the other Party, directly or indirectly make any announcement or release relating to the other Party or the existence of this Agreement, including in any market analysis, journal, newspaper, magazine, periodical, television, radio or any other branch of the news media.

The terms and conditions of this Article 5 will survive the termination of the Agreement.

During the Term, both Parties agree to share the Net Revenue (as defined below) collected by B!USA for the sale of Value Added Services to End-Users pursuant to the percentages set forth on the attached Schedule 6.1.

For purposes of this Agreement, Net Revenue shall mean the out-payment from aggregators after deducting delivery costs (cost of MT SMS) and third-party Content costs, fees and royalties (collectively, "Costs"). The cost of any Content produced directly by B!USA shall not be included in the calculation of Net Revenue. In the event that B! USA receives any direct carrier billing relationships and does not use an aggregator it is agreed that B! USA shall pass the revenue collected from carrier directly to Marketer less an 8% fee.

B!USA shall provide Marketer with an outline of all third-party Content costs, fees and royalties prior to any B!USA Value Added Service being made accessible via the Dedicated Web Environment. In addition, a breakdown of gross revenues and Costs will be provided on a monthly basis.

Any new B!USA Value Added Service not covered in this agreement including but not limited to Chat Services and Text trivia services will be negotiated outside of this agreement.

Marketer will pay B!USA all Costs for any free Value Added Services and Content provided to End-Users ("Free Services"), unless B!USA specifically agrees in writing and on a case-by-case basis to share such Costs.

At the end of each month, B!USA will invoice Marketer for any Free Services delivered during the previous month, if applicable, and Marketer shall pay B!USA pursuant to such invoice within thirty (30) days after each such invoice is issued.

Within one (1) business days following B!USA's receipt of the applicable out-payment from each third-party aggregator that processes the payments for Value Added Services, B!USA shall pay Marketer's applicable percentage of Net Revenue to Marketer.

For the 65000 shortcode B !USA will pass on the same advanced payment terms offered to Buongiorno by mQube as set out in Appendix B. These terms are subject to B! USA approval by mQube. Any change by mQube to their Advance Payment Terms will take immediate effect and will be communicated to New Motion within 2 business days.

The payment terms and conditions of this Article 6 will survive the termination of the Agreement with respect to services provided during the Term.

With respect to this Agreement, "Confidential Information" shall mean any and all information provided by either Party ("Disclosing Party") to the other Party ("Receiving Party") including, but not be limited to the following written, visual or oral information of the Disclosing Party: financial information, business information and plans, product and services information, pricing information, marketing information, customer information, vendor information, intellectual property, software, source codes, object codes, technical knowledge, trade secrets, and/or other information concerning the Disclosing Party's business.

Confidential Information shall not include information which (i) is now or subsequently becomes generally available to the public through no fault or breach on the part of Receiving Party; (ii) Receiving Party can demonstrate as having in its lawful possession prior to disclosure by Disclosing Party; (iii) is independently developed by Receiving Party without the use of any of disclosing Party's Confidential Information; or (iv) Receiving Party lawfully obtains from a third-party that has the unrestricted right to disclose such information to the general public.

Nothing in this Agreement shall affect the ownership and/or licensing rights of either party's intellectual property rights. Marketer acknowledges that B!USA is the sole and exclusive owner or licensee of all of the copyrights, patents, trademarks, trade names, markings, legends, logos, symbols, databases, designs, know-how and other intellectual property rights, whether or not registered, associated with B!USA, B!USA Value Added Services and the Content provided pursuant to the Dedicated Web Environment (collectively, the "Intellectual Property"). During the Term, B!USA grants to Marketer the non-exclusive, non-transferable and royalty-free right, pursuant to the terms and conditions of this Agreement, to use the Intellectual Property for advertising, marketing and promoting the B!USA Value Added Services to End-Users within the Territory. At B!USA's request, use of the Intellectual Property by Marketer may be subject to pre-publication or pre-use review and approval by B!USA. If B!USA, in B!USA's sole and absolute discretion, deems any use of the Intellectual Property by Marketer is detrimental to B!USA, B!USA's Value Added Services, Content and/or the underlying compositions, composers, or publisher of the Content or is deemed undesirable, B!USA may withdraw approval for any specific use or permission to use the Intellectual Property without liability as result thereof. Except as specifically authorized by this Section 8, no rights to the Intellectual Property are transferred under this Agreement and Marketer shall not, without B!USA's prior written consent, use, directly or indirectly, any Intellectual Property which is now or hereafter owned or licensed by B!USA. Marketer shall do nothing to impinge or interfere with B!USA's ownership or license of the Intellectual Property or to diminish the commercial value of B!USA's Value Added Services, Content and/or the underlying compositions of the Content or Intellectual Property. Except as expressly authorized in this Section 8, Marketer shall not use any trade names, trademarks, logos or symbols confusingly similar in any manner whatsoever with the Intellectual Property, including, but not limited to, as any part of Marketer's corporate name or trade names or in any Internet domain name without first receiving the prior written approval of the B!USA, which approval may be withheld by B!USA in its sole and absolute discretion. Marketer shall not register or attempt to register any Intellectual Property in any country in the world. In the event Marketer should acquire any rights to the Intellectual Property anywhere in the world, such rights shall be promptly assigned to B!USA without requiring any payment by B!USA. In any event, upon any termination of this Agreement, this limited permission to use the Intellectual Property shall be immediately terminated, Marketer shall immediately cease to use the Intellectual Property, and shall execute any and all documents necessary to evidence the termination of its use of the Intellectual Property, and to transfer any rights therein to B!USA without requiring any payment by B!USA. Except for the registration of Intellectual Property, Marketer shall take reasonable measures to protect the Intellectual Property from infringement by third-parties. Marketer shall immediately communicate to B!USA any known abuse or misuse of the Intellectual Property.

The terms and conditions of this Article 8 will survive the termination of the Agreement.

EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, B!USA HEREBY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

B!USA assumes no risk and shall be subject to no liability for damages or loss resulting from the specific use or application made of B!USA's Value Added Services or New Motion's Value Added Services.

NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, THE LIABILITY OF B!USA, IF ANY, AND MARKETER'S AND ANY THIRD-PARTY'S SOLE AND EXCLUSIVE REMEDY FOR DAMAGES BASED ON ANY CLAIM OF ANY KIND WHATSOEVER WITH RESPECT TO ANY SERVICES PROVIDED BY B!USA PURSUANT TO THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY OR THE DELIVERY OR NON-DELIVERY OF THE SERVICES, SHALL NOT BE GREATER THAN THE ACTUAL NET AMOUNT REALIZED BY B!USA WITH RESPECT TO THE SERVICES FOR WHICH SUCH CLAIM IS MADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, UNDER NO CIRCUMSTANCE WILL B!USA BE LIABLE TO MARKETER OR ANY THIRD-PARTY FOR ANY PUNITIVE, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF PRESENT OR PROSPECTIVE PROFITS, EXPENDITURES, INVESTMENTS OR COMMITMENTS, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOOD WILL, COST OF SUBSTITUTE SERVICES, COST OF CAPITAL, OR FOR ANY OTHER REASON WHATSOEVER.

The terms and conditions of this Article 9 will survive the termination of the Agreement.

B!USA agrees to indemnify, defend and hold Marketer, and Marketer's affiliates, subsidiaries, directors, officers, employees and representatives, harmless from and against, and will reimburse each such entity or person, as applicable and with respect to, any and all claims, liabilities, losses, damages, interest, charges, recoveries, judgments, penalties, costs and expenses, including, but not limited to reasonable attorneys' fees and costs, for any (i) breach of a representation or warranty by B!USA set forth in this Agreement, (ii) negligence by B!USA in providing the B!USA Value Added Services to End-User's; (iii) unauthorized disclosure or misuse of End-User personally identifiable information; or (iv) infringement of a third-party Intellectual Property right.

Marketer agrees to indemnify, defend and hold B!USA, and B!USA's affiliates, subsidiaries, directors, officers, employees and representatives, harmless from and against, and will reimburse each such entity or person, as applicable and with respect to, any and all claims, liabilities, losses, damages, interest, charges, recoveries, judgments, penalties, costs and expenses, including, but not limited to reasonable attorneys' fees and costs, for any (i) breach of a representation or warranty by Marketer set forth in this Agreement, (ii) negligence by Marketer in advertising, marketing, promoting or selling Value Added Services and/or Content; (iii) violation of any current or future law, rule or regulation by Marketer in advertising, marketing, promoting or selling Value Added Services and/or Content, including, but not limited to the federal laws commonly known as the CAN-SPAM Act and COPPA and any and all similar state laws, rules and regulations, as well as any laws, rules or regulations of the Federal Communications Commission or Federal Trade Commission; (iv) unauthorized disclosure or misuse of End-User personally identifiable information; or (v) infringement of a third-party Intellectual Property right.

The terms and conditions of this Article 10 will survive the termination of the Agreement.

Without prejudice to any other rights or remedies that it may have, either Party may terminate the Agreement:

a.

immediately, if the other Party commits a material breach of the Agreement and fails to remedy the breach (if capable of remedy) within fourteen (14) days of written notice to do so;

b.

immediately, if the other Party becomes insolvent, ceases its business operations relating to the subject of this Agreement, is subject to an assignment for the benefit of creditors, voluntarily or involuntarily files for bankruptcy, has a receiver or administrative receiver appointed, has a petition for an administration order presented against it or such an order is made in relation to it, or a resolution or winding up petition is passed or presented (otherwise than for reconstruction or amalgamation);

c.

immediately, upon learning of any action which jeopardizes any material right or remedy of the composer or publisher of any Content; and

 

d.

upon 6 months prior written notice to the other Party, at any time and for any reason following the end of the Initial Term.

B!USA may terminate access to specific Content on the Dedicated Web Environment immediately upon B!USA's receipt of notice from its Licensor relating to the termination of the applicable license.

B! USA may terminate this agreement immediately with 14 days written notice.

For purposes of this Agreement, Force Majeure means an event beyond a Party's control, including but not limited to civil disturbances, acts of God, unavoidable accidents, laws, rules or regulations of any national, municipal or government agency (whether domestic or foreign), acts of war or conditions arising out of or attributable directly to war, damage to any Dedicated Web Environment, or fire or other natural catastrophe, but do not include any dispute between B!USA and its employees or sub-contractors.

Neither Party may assign or sub-contract the whole or any part of their obligations pursuant to this Agreement without the prior written consent of the other Party.

Both Parties hereby agree that the terms and conditions of this Article 14 are fair and reasonable in terms of nature, extent and duration.

The terms and conditions of this Article 5 will survive the termination of the Agreement.

Both Parties agree to comply with any and all applicable data protection, privacy or similar laws ("Data Protection Laws") in their respective regions.

The terms and conditions of this Article 16 will survive the termination of the Agreement.

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same document.

The terms and conditions of this Article 17 will survive the termination of the Agreement.

For and on behalf of

BUONGIORNO USA, INC.

For and on behalf of

 

NEW MOTION, INC.

2.

Marketer shall use its distribution channels, including but not limited to online banners and e-mails, to promote B!USA's Value Added Services to End-User's, including both Marketer's registered users and to new users.

3.

Marketer shall add a significant amount of ad-hoc promotion of the B!USA Value Added Services depending on Marketer's ability to monetize End-User traffic.

4.

Marketer will investigate allocating additional advertising inventory to promote Marketer's distribution channels, i.e., search sponsorship, expanding advertising, website banners, etc.

5.

Marketer will explore new ways to effectively promote B!USA's Value Added Service and the Content.

All critical software components of the architecture have been designed for parallel, cooperative processing; the components that natively support scalability and load balancing are the Web, WAP, SMS, MMS, IVR Broker, SMTP Server, Push Scheduler, Push e-mail, Dynamic Ad Server and Customer DB Server.

The scalability model is based on many, independent, small-sized servers that share the application loads thanks to our software architecture.

The databases are designed to be easily split across several servers

No structural scalability limits on the existing software platform have been identified.

n

All servers have internal redundant components, like RAID1 disks and double power supply

1.

Maintain systems and procedures sufficient to record effectively all information it receives from Marketer or otherwise in relation to any Fault;

2.

Upon receipt of any functional defect or performance impairment from Marketer:

a.

Identify and provide the Workaround and/or Repair the Fault

b.

Ensure that a Workaround is provided and/or the Fault is repaired within the Response Times given.

3.

Promptly upon the provision of a Workaround and/or Repair of the Fault advise Marketer's point of contact that this has occurred. Any such Fault will not be treated as Repaired until the Repair has been accepted by Marketer

4.

Provide the Marketer's 1^Sttier support team with details of the cause of the Fault and the remedial action taken. In the case of a Workaround, B!USA shall additionally inform Marketer of the date when a fully operational repair will be provided.

5.

Provide ongoing reports to a designated Marketer contact in accordance with the update times set out.

Functionality of services fails, rendering the services wholly or

partially inoperative.

degradation, that the system performance falls down more than 10%,

referring to the performance average during last week.

software) of a service that has no immediate business impact and

remains operational through a temporary or automated workaround.

Failure of a single component (hardware, middleware or software)

of a service that is non-business affecting and remains operational

through a satisfactory workaround and has been requested or is

expected to be included as a fix, patch or feature of the next release.

B!USA to inform

Telefenica MOviles

 

Priority One

1 hour

10 hours

Immediate and

continuous effort

until Repair

Every 30 min within Support

Hours

Priority Two

2 hours

16 hours

Immediate and

continuous effort

until Repair

Every 2 hours only within

Support Hours

Priority Three

12 hours

N/A

30 days or such other

timescale as may be

agreed between the

parties.

Every 5 days

Priority Four

2

N/A

By Next New Version

Monthly

Priority 1

Priority 2

Priority 4

Supervisor

Immediate

2 hrs

12 hrs

N/A

Manager

Immediate

3 hrs

18 hrs

N/A

Senior

Manager

5 hr

12 hrs

24 hrs

N/A

CTO

10 hrs

24 hrs

Bi-monthly

N/A

Buongiorno

Country

Rev Share to

to New

Percentage paid

each month on all

North

5%

95%

Percentage paid

each month on all

North

2.5%

97.5%

Buongiorno

Country

Rev Share to

to New

Percentage paid

each month on all

North

8%

92%

Percentage paid

each month on all

North

3%

97%

·

Customer elects, as specified on Exhibit A, to have the Monthly Advance paid within 15 days of the end of the month; and

·

The estimated Customer Revenue Share is equal to $10,000 in such month,

·

m-Qube shall remit to Customer $6,650, the Net Advance (70% of Customer's estimated Customer Revenue Share, or $7,000 Monthly Advance, minus m-Qube's Fee or $350) within 15 days of the end of the month;

·

m-Qube shall retain $350 as its fee (5.00% [the fee which pertains to a advance within 15 days of the end of the month as specified on Exhibit A] of $7,000 (which amount represents the Monthly Advance)); and

·

m-Qube shall pay to Customer $3,000 ($10,000 Customer Revenue Share, to the extent collected, less the $7,000 Monthly Advance) within 30 days of collection.