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Mobitalker International Calling App
Terms & Conditions

The Mobitalker App, which is provided by Net2Phone, Inc. ("collectively We", "Us", or "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) (each, an "Option" and, collectively, "Options").

The content and services and any other interactive feature that may be made available to You via this Site (collectively, "Site Materials"), as well as the Mobitalker App itself, are provided to You pursuant to these Terms & Conditions. Please read these Terms & Conditions carefully before using this Site or downloading the Mobitalker App to your Smartphone. These Terms & Conditions, as may be revised by Us from time to time, shall at all times govern the Your use of this Site and of the Mobitalker App.

By downloading the Mobitalker App and/or accessing the www.mobitalker.com website (the "Site"), You agree to be bound to these Terms & Conditions as well as the attached Mobitalker End User License Agreement and Privacy Policy and all exhibits hereto (collectively, the "Terms & Conditions"). If you do not wish to be bound by the Terms & Conditions, You may not download the Mobitalker App or use this Site . We may modify the Terms & Conditions at any time without notice and such modifications shall be deemed effective immediately upon posting of the modified Terms & Conditions on this Site. You agree to review the Terms & Conditions periodically to be aware of such modifications and Your continued access or use of the Mobitalker App shall be deemed Your conclusive acceptance of the modified Terms & Conditions.

PLEASE READ THESE TERMS & CONDITIONS CAREFULLY.

1. Definitions

1.1 Documentation. The printed materials, "online" or electronic documentation, packaging and any other materials in any other media or form associated with the Mobitalker App.

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

1.3 Smartphone. a mobile phone offering advanced capabilities, including personal computer-like functionality (PC-mobile handset convergence) or a palmtop computer ("PDA").

1.4 You. The end user of the Mobitalker App or the Site also used in the form "Your" where applicable.

2. Proprietary Rights.

2.1 Service Marks . "Net2Phone" and the "Net2Phone and design" are 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 hardware, software, images, photographs, animations, video, audio, music, and text incorporated into the Mobitalker App software), are owned by Net2Phone and are covered by various worldwide patents and patent applications that are the legal property of Net2Phone. You shall not remove, cover or alter any component of Net2Phone's copyright, trademark or other proprietary notices placed upon, embedded in or displayed by the Mobitalker App software or on the Documentation.

2.2 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.

3. License

3.1 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 You herein are limited to Your license to use the Mobitalker Apps pursuant to these Terms & Conditions and do not include any other right in any other patents or other intellectual property. You may install and use one copy of the Mobitalker App on a single Smartphone at a time. You may not download or cause the Mobitalker App to exist on more than one Smartphone at a time, and you may not make the Mobitalker App software available over a network where it could be used by multiple devices at the same time. These Terms & Conditions will govern any software upgrades provided by Net2Phone that replace and/or supplement the original Mobitalker App software. Net2Phone may also make improvements and/or changes to the Site, Mobitalker App or Documentation at any time without notice.

3.2 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, Site Materials or the Documentation 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 hereunder, you may not

    • copy, decompile, reverse engineer, disassemble, modify, or create derivative works of the Mobitalker App, Site Materials or the Documentation or any portion or component thereof, or permit others to do so, or
    • defeat any feature or function of the software or permit others to do so, or
    • rent, lease, sublicense, grant a security interest in, or otherwise transfer rights in the Mobitalker App, Site Materials or the Documentation, or
    • remove or modify any proprietary notices or labels in or on the Mobitalker App, Site Materials or the Documentation.

3.3 Promotional Software or Materials . Notwithstanding any provision contained herein, 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.

4. Website

4.1 Site Materials . All site materials ("Site Materials"), including, but not limited to, text, data, graphics, logos, button icons, images, audio clips, video clips, links, digital downloads, data compilations, and software is owned, controlled by, or licensed to Net2Phone and is protected by copyright, trademark, and other intellectual property rights. Site Materials are made available solely for personal, non-commercial use and may not be copied, reproduced, republished, modified, uploaded, posted, transmitted, or distributed in any way, including by e-mail or other electronic means, without the express prior written consent of Net2Phone in each instance. You may only download material intentionally made available for downloading from this Site for Your personal, non-commercial use only, provided that You keep intact any and all copyright and other proprietary notices that may appear on such materials. Information on this Site may contain technical inaccuracies or typographical errors.

4.2 Links . Any links available on this Site will enable You to leave Net2Phone's Site. The linked sites are not under the control of Net2Phone and Net2Phone is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. It is up to You to take precautions to ensure that whatever You select for Your use is free of viruses, worms, trojan horses and other items of a destructive nature. Net2Phone is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Net2Phone of the site. Additionally, other logos, trademarks and service marks ("Marks") which appear on this site may be marks of third parties that are not affiliated with Net2Phone. Net2Phone and its affiliates do not control or endorse the content of third party websites. in no event will Net2Phone be liable to any party for any direct, indirect, special or other consequential damages for any use of this Site, or on any other hyper linked website, including, without limitation, any lost profits, business interruption, loss of programs or other data on your information handling system or otherwise, even if We are expressly advised of the possibility of such damages.

4.3 Downloading Material from this Site . Net2Phone cannot and does not guarantee or warrant that the files available for downloading from the Site will be free of infection or viruses, worms, trojan horses or other code that manifest contaminating or destructive properties. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for accuracy of data input and output, and for maintaining a means external to the Site for the reconstruction of any lost data.

5. Disclosures

5.1 Charges & Fees . Any telecommunications charges normally associated with Your mobile telecommunications plan may also be imposed in connection with Your use of the Mobitalker App. If You select the 3G Option, You may incur data or roaming charges from Your mobile service provider in addition to any other fees associated with Your use of the Mobitalker App.

5.2 Rates . One (1) minute rounding.

5.3 Expiration . All balances expire 180 days from last call.

6. Refunds

Upon download, the Mobitalker App is non-refundable, and no refunds or other compensation will be given for unused airtime balances, if any.

7. Availability

The Mobitalker App is available for use from any location worldwide subject to applicable law. You are solely responsible for complying with all laws and regulations in the legal jurisdiction in which You download and/or use the Mobitalker App, including local laws, in which You utilize the Mobitalker App. Notwithstanding the foregoing, You represent that You are not located in, under the control of, and are not a national or resident of any country which the United States has placed an embargo against or have placed on the U.S. Treasury Department's Specialty Designated Nationals List or the U.S. Commerce Department's Table of Deny Orders. Such countries are but are not limited to Cuba, Iraq, Libya, North Korea, Iran and Syria.

8. Quality of Service

We are not responsible for incomplete, lost, late, damaged, illegible or misdirected mobile or e-mail messages or for any technical problems, malfunctions of any telephone lines, mobile communications systems, computer systems, servers, providers, hardware/software, lost or unavailable network connections or failed, incomplete, garbled or delayed computer or mobile transmission or any combination thereof. We are not responsible for any liability for damage to any Smartphone, computer or mobile system resulting from use of the Mobitalker App or the Site. We assume no responsibility for undeliverable mobile messages or emails in connection with transmissions made utilizing the Mobitalker App.

9. Privacy Policy

Net2Phone's personal information practices on this Site are governed by Net2Phone's Privacy Policy which also governs Your use of this Site and of the Mobitalker App. Please review this privacy statement and print a copy for your records. This Site does not intend to target or collect personal information from individuals under the age of 13.

10. Consent to Use of Data

You agree that Net2Phone and its affiliated companies 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.

11. Disclaimer of Warranties

YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THE SITE, THE MOBITALKER APP, ASSOCIATED HARDWARE AND SOFTWARE, AND THE DOCUMENTATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL PRODUCTS AND SERVICES PROVIDED BY NET2PHONE ARE PROVIDED "AS IS" WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. NET2PHONE DOES NOT MAKE WARRANTIES, REPRESENTATIONS OR ENDORSEMENTS WHATSOEVER WHETHER EXPRESS, IMPLIED OR STATUTORY (INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE OR NONINFRINGEMENT, OR THE IMPLIED WARRANTIES OR MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SITE, THE MOBITALKER APP, OR THE DOCUMENTATION, OR ANY TRANSACTION PERFORMED THROUGH THE SITE OR THE MOBITALKER APP, AND NET2PHONE SHALL NOT BE LIABLE FOR ANY COST OR DAMAGE ARISING EITHER DIRECTLY OR INDIRECTLY FROM ANY SUCH TRANSACTION. NET2PHONE DOES NOT WARRANT THAT THE SITE, THE MOBITALKER APP, OR THE DOCUMENTATION, AS APPLICABLE, WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY DEFECTS IN SITE, THE MOBITALKER APP, OR THE DOCUMENTATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY NET2PHONE OR A NET2PHONE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.

12. 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 OR THIS SITE, 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. NOTWITHSTANDING ANY OTHER PROVISION HEREIN, IF YOU OBJECT TO ANY OF THESE TERMS & CONDITIONS OR ANY SUBSEQUENT MODIFICATIONS THERETO OR BECOMES DISSATISFIED WITH THE MOBITALKER APP IN ANY WAY, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE USE OF THE MOBITALKER APP. WE SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY, OR RESPONSIBLE FOR ANY CHARGES INCURRED FOR THE TERMINATION OF SERVICES YOU OBTAIN FROM ANY THIRD-PARTY PROVIDERS. 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.

13. Third-Party Vendors

Notwithstanding any other provision herein, You acknowledge that the Mobitalker App's ability to perform as intended is dependent upon the availability of equipment and services from third-party vendors (collectively, the "Vendors") with whom Net2Phone and/or You have contracted for the provision of underlying telecommunications services and agree that Net2Phone shall not be in breach of any obligations to You hereunder, if the Mobitalker App is unable to properly perform by reason of the breach or other failure by any such Vendor to perform its obligations to Net2Phone or to You in accordance with the terms of such Vendor's agreement with Net2Phone or You.

14. Force Majeure

Net2Phone shall not be responsible for any delay or failure in performance that results from causes beyond its reasonable control ("Force Majeure Events"), whether or not foreseeable by such party. Such Force Majeure Events include, but are not limited to, adverse weather conditions, flood, fire, explosion, earthquake, volcanic action, power failure, embargo, boycott, war, revolution, civil commotion, act of public enemies, labor unrest (including, but not limited to, strikes, work stoppages, slowdowns, picketing or boycotts), inability to obtain equipment, parts, software or repairs thereof, acts or omissions of the other party, and acts of God.

15. 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 or of the Site from and against all losses, expenses, damages and costs, including reasonable attorneys' fees, resulting from any violation of these Terms & Conditions or any applicable law, rule, or regulation by You or Your infringement of any party's intellectual property rights. The provisions of this paragraph are for the benefit of Net2Phone and its officers, directors, employees, agents, and shareholders, as well as licensors and suppliers of the Mobitalker App and this Site. Each of these individuals or entities shall have the right to assert and enforce these provisions directly against You on its own behalf. This Section 15 shall survive termination of these Terms & Conditions.

16. 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 Essex County, New Jersey and You expressly waive all defenses to jurisdiction. Any cause of action or claim you may have with respect to the Site, 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. TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY YOU IN ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SUBJECT MATTER HEREOF, THE RELATIONSHIP OF THE PARTIES, AND/OR ANY CLAIM OR DAMAGE RELATED THERETO.

17. Termination

The Terms & Conditions are effective until terminated. This Agreement may be terminated by either party without notice at any time for any reason; provided that You may no longer use the Site or the Mobitalker App. Your rights under the Terms & Conditions will terminate automatically without notice from IDT if you fail to comply with any of the Terms & Conditions. All provisions of the Terms & Conditions that by their nature are intend to survive the termination of these Terms & Conditions shall so survive.

18. No Third Party Beneficiaries

No provision of these Terms & Conditions provide any person or entity not a party to these Terms & Conditions with any remedy, claim, liability, reimbursement, or cause of action or creates any other third party beneficiary rights.

19. 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.

20. Miscellaneous

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. Net2Phone may assign its rights and duties under this Agreement to any party at any time without notice to you. No amendment to or modification of this Agreement will be binding unless expressly intended to do so by Net2Phone. If any provision of the Terms & Conditions is determined by an arbitrator or court of competent jurisdiction to be contrary to applicable law, then such provision shall be construed as nearly as possible to conform to applicable law and the other provisions of this Agreement shall remain in full force and effect. Net2Phone at any time and from time to time may assign its rights and delegate its duties under these Terms & Conditions without Your prior consent. Net2Phone's failure to exercise or enforce any right or provision of the Terms & Conditions shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Net2Phone in writing. Neither the course of conduct between the parties not trade practice shall act to modify any provision of these Terms & Conditions. The section titles in these Terms & Conditions are solely used for the convenience of the parties and have no legal or contractual significance.

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