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Mobitalker International Calling App End User License Agreement

The Mobitalker International Calling Application for Smartphones, which is provided by Net2Phone, Inc. (“Net2Phone”), provides callers with the ability to make international calls using three (3) different call types, (i) VoIP over WiFi or 3G, (ii) Callthrough (via a local access number), and (iii) Ringback (2-legged call). Please read this Agreement carefully before accessing or downloading the Mobitalker App to your Smartphone. The herein terms apply to the Mobitalker App with which this Agreement is provided, and includes any accompanying Documentation.

By downloading the Mobitalker App, you agree to be bound to the terms and conditions set forth herein. If you do not wish to be bound by these terms and conditions, you may not download the Mobitalker International Calling Application for Smartphones. Net2Phone may modify this Agreement at any time without notice and such modifications shall be deemed effective immediately upon posting of the modified Agreement. You agree to review the Agreement periodically to be aware of such modifications and your continued access or use of the Mobitalker International Calling Application for Smartphones shall be deemed your conclusive acceptance of the modified Agreement.

1. Definitions

1.1 Agreement: this End User License Agreement, as may be renewed, modified and/or amended from time to time.

1.2 Documentation: The printed materials, “online” or electronic documentation, packaging and any other materials in any other media or form associated with the Mobitalker App.

1.3 Mobitalker App: Net2Phone’s proprietary Mobitalker App software application for Smartphones, as well as any future fixes, enhancements, updates and upgrades thereof.

1.4 Smartphone: a mobile phone offering advanced capabilities, including personal computer-like functionality (PC-mobile handset convergence) or a palmtop computer (“PDA”).

1.5 You: you, the end user of the Software, also used in the form “Your” where applicable.

2. License

2.1 Grant of License . Subject to the herein terms, the Mobitalker App and accompanying Documentation accompanying this Agreement are licensed, not sold, to you by Net2Phone, on a non-exclusive basis and Net2Phone reserves all rights not expressly granted to You. The rights granted to Your rights herein are limited to Your license to use the Mobitalker Apps pursuant to the terms of this Agreement and do not include any other right in any other patents or other intellectual property. This Agreement allows you to install and use one copy of the Mobitalker App on a single Smartphone at a time. This Agreement does not allow the Mobitalker App to exist on more than one Smartphone at a time, and you may not make the Software available over a network where it could be used by multiple devices at the same time. The terms of this Agreement will govern any software upgrades provided by Net2Phone that replace and/or supplement the original Mobitalker App software.

2.2 Use Restrictions . The license granted to You herein is for consumer use only. You may not rent, lease, lend or sublicense the Mobitalker App. Any reproduction or redistribution of the Mobitalker App not in accordance with the terms set forth herein is expressly prohibited by law, and may result in severe civil and criminal penalties. Net2Phone reserves the right to prosecute any such violation to the maximum extent possible. Except as and only to the extent expressly permitted in this Agreement or by applicable law, you may not copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the Mobitalker App or any portion or component thereof. You may not distribute the Documentation.

2.3 Promotional Software or Materials . Notwithstanding other sections of this Agreement, Mobitalker App software labeled or otherwise provided to you on a promotional basis may only be used for demonstration, testing and evaluation purposes and may not be resold or transferred.

3. Ownership

3.1 Service Marks . "Net2Phone" is a registered service marks of Net2Phone, Inc.. "Mobitalker is a service mark of IDT Corporation. All right, title and interest (including but not limited to copyright, patent, trade secret, service mark and all other intellectual property and proprietary rights worldwide) in and to the Mobitalker App and/or associated or accompanying Documentation (including but not limited to any images, photographs, animations, video, audio, music, and text incorporated into the Mobitalker App software), are owned by Net2Phone. You shall not remove, cover or alter any component of Net2Phone or IDT Corporation’s copyright, trademark or other proprietary notices placed upon, embedded in or displayed by the Mobitalker App software or on its Documentation.

3.2 Patents . The Mobitalker App, the systems and methods that it accesses, and/or the related services Net2Phone provides are covered by one or more patents or patents pending, including, without limitation, 6,829,645, 6,701,365, 6,687,738, 6,594,254, 6,513,066, 6,347,085, 6,226,678, 6,185,184, 6,131,121, 6,108,704, 6,009,469, 5,999,965, 5,712,907. All right, title and interest (including but not limited to copyright, patent, trade secret, service mark and all other intellectual property and proprietary rights worldwide) in and to the Mobitalker App (including but not limited to any hardware, software, computer code, graphics, images, photographs, animations, sounds, video, audio, music, multimedia, and text incorporated into the Mobitalker App software and Documentation), and any other component of the Mobitalker App or Documentation, are owned by Net2Phone and are covered by various worldwide patents and patent applications that are the legal property of Net2Phone.

4. Consent to Use of Data

You agree that Net2Phone and its subsidiaries may collect and use technical and related information, including but not limited to technical information about or relating to Your Smartphone that is gathered periodically to facilitate the provision of software updates, product support and other services to you (if any) related to the Mobitalker App software. Net2Phone may use this information, as long as it is in a form that does not personally identify You, to improve our products or to provide services or technologies to You.

5. Termination

This Agreement is effective until terminated. Your rights under this Agreement will terminate automatically without notice from Net2Phone if you fail to comply with any term(s) of this Agreement. Upon the termination of this Agreement, you shall cease all use of the Mobitalker App.

6. Disclaimer of Warranties

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE MOBITALKER APP IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, AND ACCURACY IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MOBITALKER APP AND DOCUMENTATION ARE PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND NET2PHONE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE MOBITALKER APP AND DOCUMENTATION, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NET2PHONE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE MOBITALKER APP, THAT THE FUNCTIONS CONTAINED IN THE MOBITALKER APP WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE MOBITALKER APP WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE MOBITALKER APP WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NET2PHONE OR AN NET2PHONE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.

7. Limitation of Liability

TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL NET2PHONE BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE MOBITALKER APP, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF NET2PHONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall NET2PHONE's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of two-hundred dollars ($200.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.

8. Indemnification

You agree to indemnify, defend and hold Net2Phone, its officers, directors, employees, agents, shareholders, licensors, suppliers and any third party providers of the Mobitalker Apps or any component thereof from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from any violation of this Agreement by You. The provisions of this paragraph are for the benefit of Net2Phone and its officers, directors, employees, agents, shareholders, licensors, suppliers of Mobitalker Apps. Each of these individuals or entities shall have the right to assert and enforce these provisions directly against You on its own behalf.

9. Governing Law

This Agreement shall be governed and construed in accordance with the laws of the State of New Jersey. You agree that in any legal action or proceeding between you and Net2Phone for any purpose concerning this Agreement, you agree to submit to exclusive jurisdiction in Bergen County, New Jersey and you expressly waive all defenses to jurisdiction. Any cause of action or claim You may have with respect to the Mobitalker App or Documentation must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. Net2Phone’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties not trade practice shall act to modify any provision of this Agreement. Net2Phone may assign its rights and duties under this Agreement to any party at any time without notice to You.

10. Export

You may not export or re-export of the Mobitalker App to any destination requiring such a license. Agent acknowledges that the Service may be exported or re-exported to Cuba, Iran, Iraq, North Korea, Libya, Sudan, or any other country to which the U.S. prohibits the export of goods, technology or products, or to nationals of those countries wherever located.

11. Complete Agreement; Governing Language

This Agreement constitutes the entire agreement between the parties with respect to the use of the Mobitalker Apps and Documentation licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Agreement will be binding unless expressly intended to do so by Net2Phone. Any translation of this Agreement is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this License shall govern.



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