Beta End User License Agreement

IMPORTANT – PLEASE READ CAREFULLY

Before reading the articles below, please review the following preliminary terms, which use some of the definitions as specified in Article 1 below.

Entering into this Agreement: This Beta End User License Agreement constitutes a valid and binding agreement between iSkoot and You, as a user, for the use of the iSkoot Software. You must enter into this Agreement by clicking on the ACCEPT button in order to be able to install and use the iSkoot Software. Furthermore, by installing and (continuously) using the iSkoot Software, You agree to be bound by the terms of this Agreement and any new versions hereof.

Electronic Signatures and Agreement(s): You acknowledge and agree that by clicking on the ACCEPT button or similar buttons or links as may be designated by iSkoot to show Your approval of this Agreement and/or to download and install the iSkoot Software, You are entering into a legal binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the iSkoot Software. Furthermore, You hereby waive any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.

Beta Testing: You acknowledge that iSkoot is conducting beta testing for the iSkoot Software and You hereby agree to participate in such testing and to provide feedback, as may be appropriate, to iSkoot using the iSkoot Mobile Beta Testing Survey that is located on the iSkoot Website.

Internet Telephony and Data Services: You acknowledge and agree that the iSkoot Software alone will not enable You to initiate or maintain a Voice Over Internet Protocol (VOIP) or other wireless, wired or internet-based telephone connection and that You are solely responsible for maintaining and adhering to all license terms with respect to (i) internet telephony and data services and related services with a company whose internet telephony and data services is supported at such time by iSkoot and (ii) mobile telephony service.

No Emergency Calls: By entering into this Agreement You acknowledge and agree that the iSkoot Software does not and does not intend to support or carry emergency calls. Please also see Article 7 below.

Jurisdiction’s Restrictions: If You are residing in a jurisdiction which restricts the use of Internet-based applications according to age, or which restricts the ability to enter into agreements such as this agreement according to age and You are under such a jurisdiction and under such age limit, You may not enter into this Agreement and download, install or use the iSkoot Software. Furthermore, if You are residing in a jurisdiction where it is forbidden by law to offer or use software for internet telephony, You may not enter into this Agreement and You may not download, install or use the iSkoot Software. By entering into this Agreement and using the iSkoot Software, You explicitly represent and warrant that You have verified that Your use of the iSkoot Software is allowed in Your own jurisdiction and You shall stop using the iSkoot Software in such jurisdiction if such use becomes illegal in such jurisdiction during the term.

ARTICLE 1. DEFINITIONS

In this Agreement the following capitalized definitions are being used, singular as well as plural.

1.1 Affiliate: any corporation, company or other entity that directly or indirectly controls, is controlled by, or is under common control with, iSkoot. For the purpose of this definition, the word “control” shall mean the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting stock of the corporation, company, or other entity.

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

1.3 Documentation: any online or otherwise enclosed documentation provided by iSkoot.

1.4 Effective Date: the date on which this Agreement is entered into by clicking on the ACCEPT button as stated above.

1.5 IP Rights: any and all intellectual property rights, including but not limited to copyrights, trademarks, trade secrets and patents, as well as know how contained in or relating to the iSkoot Software, the Documentation or the iSkoot Website.

1.6 iSkoot: iSkoot Inc. a Delaware corporation.

1.7 iSkoot Software: the software distributed by iSkoot for internet telephony applications, which is currently in beta form, including without limitation the iSkoot UI and Documentation, as well as any future programming fixes, updates and upgrades thereof.

1.8 iSkoot Staff: means the directors, officers, employees, agents, and contractors of iSkoot and its Affiliates.

1.9 iSkoot Website and WAP sites: the website accessible at the following URL http://www.iSkoot.com; the wap site accessible at the following URLs: go.iskoot.com and wap.iskoot.com or a successor address, from which site the iSkoot Software can be downloaded.

1.10 UI: the user interface of the iSkoot Software.

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

1.12 Internet telephony and data services: Any third party internet telephony and data services developed or distributed by a vendor of internet telephony and data connection
services, such as Skype.

ARTICLE 2. LICENSE AND RESTRICTIONS

2.1 License. Subject to the terms of this Agreement, iSkoot hereby grants You a limited, personal, non-commercial (at home or at work), non-exclusive, non-sublicensable, non-assignable license to download, install and use the iSkoot Software on Your computer, mobile phone or PDA, for the sole purpose of personally using the internet telephony applications provided by iSkoot and any other applications that may be explicitly provided by iSkoot.

2.2 No Granting of Rights to Third Parties. You will not sell, assign, rent, lease, distribute, export, import, act as an intermediary or provider, or otherwise grant rights to third parties with regard to the iSkoot Software or any part thereof.

2.3 No Modifications. You will not undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the iSkoot Software or any part thereof.

2.4 Third Parties. You acknowledge and agree that the iSkoot Software may incorporate software and other technology owned and controlled by third parties. iSkoot emphasizes that it will only incorporate such third party software or technology for the purpose of (a) adding new or additional functionality or (b) improving the technical performance of the iSkoot Software. Any such third party software or technology that is incorporated in the iSkoot Software falls under the scope of this Agreement. Any and all other third party software or technology that may be distributed together with the iSkoot Software will be subject to You explicitly accepting a license agreement with that third party. You acknowledge and agree that You will not enter into a contractual relationship with iSkoot or its Affiliates regarding such third party software or technology and You will look solely to the applicable third party and not to iSkoot or its Affiliates to enforce any of Your rights.

2.5 New Versions of the iSkoot Software. iSkoot, in its sole discretion, reserves the right to add additional features or functions, or to provide programming fixes, updates and upgrades, to the iSkoot Software. You acknowledge and agree that iSkoot has no obligation to make available to You any subsequent versions of the iSkoot Software. You also agree that You may have to enter into a renewed version of this Agreement, in the event You want to download, install or use a new version of the iSkoot Software, including without limitation any production version of the iSkoot Software currently offered in a beta version. Furthermore, You acknowledge and agree that iSkoot, in its sole discretion, may modify or discontinue or suspend Your ability to use any version of the iSkoot Software, or terminate any license hereunder, at any time, with immediate effect and without recourse to the courts. iSkoot also may suspend or terminate any license hereunder and disable any iSkoot Software You may already have accessed or installed without prior notice at any time with immediate effect and without recourse to the courts. iSkoot will not accept, and hereby disclaims, any liability in relation to the direct or indirect damages caused by (1) the release and/or the absence of release of new versions of the iSkoot Software and (2) by the suspension or termination of this Agreement by iSkoot and/or by You.

2.6 Paid Services. This Agreement applies to downloading, installing and using the iSkoot
Software. The use of any paid services which may be offered by iSkoot or its Affiliates is subject to the additional Terms of Service that may be published from time to time on the iSkoot Website.

2.7 No Distribution/Incorporation of iSkoot Software. You are not allowed to distribute the iSkoot Software under this Agreement. You shall not incorporate the iSkoot Software in any product designed, developed, marketed, shared, sold or licensed by You or any third party, whether or not for any consideration.

2.8 Any other Exceptions. If You are interested in doing anything else with the iSkoot Software or Documentation other than is expressly permitted under this Agreement, You will have to obtain iSkoot’s previous written consent and explicitly agree upon any further (commercial) terms.

ARTICLE 3. PERMISSION TO UTILIZE YOUR COMPUTER, YOUR MOBILE PHONE AND YOUR SOFTWARE

3.1 Permission to Utilize Your Computer, Your Mobile Phone and Your Software. In order to receive the benefits provided by the iSkoot Software and for the limited purpose of facilitating the mobile wireless communication between You and Your Internet telephony and data services, You hereby grant permission to iSkoot to use the iSkoot Software to (i) utilize Your mobile phone or other device to which You have downloaded the iSkoot Software, and (ii) utilize Your Internet telephony and data services and Internet Telephony Account and account information.

3.2 Protection of Your Computer and Mobile Phone Data. You understand that iSkoot will use its reasonable efforts to protect the privacy and integrity of data, software and other resources stored on Your computer,Your mobile phone or other device to which You have downloaded the iSkoot Software; however, You acknowledge and agree that iSkoot cannot and does not give any warranties in this respect.

ARTICLE 4. ISKOOT'S CONFIDENTIAL INFORMATION

4.1 iSkoot’s Confidential Information. You agree to take all reasonable steps at all times to protect and maintain as strictly confidential and not to use or disclose without iSkoot’s permission any confidential information regarding iSkoot, its Affiliates, the iSkoot Software and the IP Rights.

4.2 Your Confidential Information and Your Privacy. iSkoot is committed to respecting Your privacy and the confidentiality of Your personal data. The “Privacy Policy” that is published on the iSkoot Website applies to the use of Your personal data, the traffic data as well as the content contained in Your communication(s).

ARTICLE 5. BETA TESTING

5.1 Evaluation. In exchange for the license granted herein, You agree that You will not receive any additional consideration or compensation, nor shall You retain any proprietary claim, as a result of Your evaluation of the iSkoot Software or for Your completion of the iSkoot Mobile Beta Testing Survey. YOU ACKNOWLEDGE THAT THE ISKOOT SOFTWARE MAY CONTAIN VARIOUS DISABLEMENT AND OR TIME-OUT FEATURES THAT MAY BE ACTIVATED BY ISKOOT AT ANY TIME.

ARTICLE 6. IP RIGHTS

6.1 Exclusive Ownership. You acknowledge and agree that any and all IP Rights to or arising from the iSkoot Software are and shall remain the exclusive property of iSkoot and/or its licensors. Nothing in this Agreement intends to transfer any such IP Rights to, or to vest any such IP Rights in, You. You are only entitled to the limited use of the IP Rights granted to You in this Agreement. You will not take any action to jeopardize, limit or interfere with the IP Rights. You acknowledge and agree that any unauthorized use of the IP Rights is a violation of this Agreement as well as a violation of intellectual property laws, which may include without limitation copyright laws and trademark laws.

6.2 Feedback. Feedback consists of any of Your suggestions, comments or other feedback whether it is required or provided on a voluntary basis, relating to the iSkoot Software (“Feedback”). If you provide iSkoot with any Feedback, as required or on a voluntary basis, as part of the Beta Test for the iSkoot Software, You agree that: (a) iSkoot may freely use, disclose, reproduce, license, distribute and other commercialize the Feedback in any iSkoot product, specifications, or other documentation; (b) You also grant third parties, without charge, only those patent rights necessary to enable their products to use or interface with any specific parts of a iSkoot product that incorporate the Feedback; and (c) You will not give iSkoot any Feedback (1) that You have reason to believe is subject to any patent, copyright, or other intellectual property claim or right of any third party; or (2) that is subject to license terms that seek to require any iSkoot product incorporating or derived from any Feedback, or other iSkoot intellectual property, to be licensed to or otherwise shared with any third party.

6.3 No Removal of Notices. You agree that You will not remove, obscure, make illegible or alter any notices or indications of the IP Rights and/or iSkoot’s rights and ownership thereof, whether such notice or indications are affixed on, contained in or otherwise connected to such materials.

ARTICLE 7. COMMUNICATION AND YOUR USE OF THE ISKOOT SOFTWARE

7.1 Communication. Installing iSkoot Software is designed to enable You to communicate with supported Internet telephony and data services on Your mobile phone. iSkoot will maintain and update from time to time on the iSkoot Website a list of supported Internet telephony and data services.

7.2 Disruptions, Delays and Interruptions. iSkoot cannot guarantee that You will always be able to communicate with Your Internet telephony and data services or other Internet telephony and data services users, nor can iSkoot guarantee that You can communicate without disruptions, delays or other communication-related flaws. iSkoot will not be liable and hereby disclaims all liability for any such disruptions, delays or other omissions in any communication experienced when using iSkoot Software.

7.3 No Control. You acknowledge and understand that iSkoot does not control, or have any knowledge of, the content of any communication(s) spread by the use of the iSkoot Software. The content of the communication is entirely the responsibility of the person from whom such content originated. You, therefore, may be exposed to content that is offensive, indecent or otherwise objectionable. iSkoot will not be liable and hereby disclaims all liability for any type of communication spread by means of the iSkoot Software.

7.4 No Emergency Services. You expressly agree and understand that the iSkoot Software is not intended to support or carry emergency calls to any type of hospital, law enforcement agency, medical care unit or any other kind of emergency service. iSkoot, its Affiliates or iSkoot Staff are in no way liable and hereby disclaim all liability for such emergency calls.

7.5 Lawful Purposes. You acknowledge and agree to use the iSkoot Software solely for lawful purposes. In this respect You may not, without limitation (a) intercept or monitor, damage or modify any communication which is not intended for You, (b) use any type of spider, virus, worm, trojan-horse, time bomb or any other codes or instructions that are designed to distort, delete, damage or disassemble the iSkoot Software or the communication, or (c) send any unsolicited commercial communication not permitted by applicable law.

ARTICLE 8. TERM AND (CONSEQUENCES OF) TERMINATION

8.1 Term. This Agreement will be effective as of the Effective Date and will remain effective until terminated by either iSkoot or You as set forth below.

8.2 Termination by iSkoot. iSkoot may terminate this Agreement with immediate effect at any time, with or without cause and without recourse to courts, by providing notice to You and/or by preventing Your access to the iSkoot Software, as set forth in Article 2.5 above.

8.3 Termination by You. You may terminate this Agreement with immediate effect at any time, with or without cause and without recourse to the courts, provided that You meet with the conditions as set forth in Article 8.4 below.

8.4 Consequences of Termination. Upon termination of this Agreement, You (a) acknowledge and agree that all licenses and rights to use the iSkoot Software shall terminate, and (b) will cease any and all use of the iSkoot Software, and (c) will remove the iSkoot Software from all hard drives, networks, mobile phone and other storage media and destroy all copies of the iSkoot Software in Your possession or under Your control.

8.5 No Liability. iSkoot will not be liable in relation to, and hereby disclaims all liability for, any direct, indirect, incidental, special or consequential damage caused by the termination of this Agreement.

ARTICLE 9. YOUR REPRESENTATION AND WARRANTIES; INDEMNIFICATION OF ISKOOT

9.1 Representations. You represent and warrant that You are authorized to enter into this Agreement and comply with its terms. Furthermore, You represent and warrant that You will at any and all times comply with Your obligations hereunder, as well as any and all laws, regulations and policies that may apply to the use of the iSkoot Software.

9.2 Indemnification. You agree to indemnify, defend and hold iSkoot, its Affiliates and the iSkoot Staff harmless from and against any and all liability and costs, including reasonable attorneys’ fees incurred by said parties, in connection with or arising out of Your (a) violation or breach of any term of this Agreement or any applicable law, regulation, policy or guideline, whether or not referenced herein, or (b) violation of any rights of any third party, or (c) use or misuse of the iSkoot Software, or (d) communication spread by means of the iSkoot Software.

ARTICLE 10. DISCLAIMER OF WARRANTIES

10.1 No Warranties. THE ISKOOT SOFTWARE IS PROVIDED “AS IS”, WITH NO WARRANTIES WHATSOEVER AND ISKOOT DOES NOT MAKE ANY WARRANTIES, CLAIMS OR REPRESENTATIONS WITH RESPECT TO THE ISKOOT SOFTWARE EITHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR USE OR A PARTICULAR PURPOSE. ISKOOT FURTHER DOES NOT REPRESENT OR WARRANT THAT THE ISKOOT SOFTWARE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE AND ERROR/BUG-FREE OR WILL OPERATE WITHOUT PACKET LOSS, NOR DOES ISKOOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM ANY WIRELESS NETWORK OR THE INTERNET, OR ANY QUALITY OF CALLS MADE THROUGH THE ISKOOT SOFTWARE.

10.2 Your Own Risk. You acknowledge that the iSkoot Software is a beta product and has not been tested in the public market and may contain bugs or defects. You further acknowledge and agree that the entire risk arising out of the use or performance of the iSkoot Software remains with You, to the maximum extent permitted by law. You shall have the sole responsibility for adequate protection and back-up of any data used, created, received, or transmitted in connection with the testing of the iSkoot Software.

10.3 Jurisdiction’s Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You.

ARTICLE 11. LIMITATION OF LIABILITY

11.1 No Liability. YOU ACKNOWLEDGE AND AGREE THAT ISKOOT, ITS AFFILIATES AND THE ISKOOT STAFF WILL HAVE NO LIABILITY IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE ISKOOT SOFTWARE. IN NO EVENT SHALL ISKOOT, ITS AFFILIATES OR THE ISKOOT STAFF BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF DATA, INTERRUPTION, COMPUTER FAILURE OR PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE ISKOOT SOFTWARE, WHETHER OR NOT FORESEEABLE, EVEN IF ISKOOT, ITS AFFILIATES OR THE ISKOOT STAFF HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2 Remedy. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE ISKOOT SOFTWARE IS TO DEINSTALL AND CEASE USE OF SUCH ISKOOT SOFTWARE.

11.3 Jurisdiction’s Limitations. As some jurisdictions do not allow some of the exclusions or limitations as set forth above, some of these exclusions or limitations may not apply to You.

ARTICLE 12. GENERAL PROVISIONS

12.1 Survival. Articles 2.2, 2.3, 2.7, 4, 6, 8.4, 8.5, 9, 10, 11 and 12 shall survive termination or expiration of this Agreement.

12.2 New Versions of the Agreement. iSkoot reserves the right to modify this Agreement at any time by providing such revised Agreement to You or by publishing the revised Agreement on the iSkoot Website. Your continued use of the iSkoot Software shall constitute Your acceptance to be bound by the terms and conditions of the revised Agreement.

12.3 Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between You and iSkoot with respect to the subject matter hereof and will supersede and replace all prior understandings and agreements, in whatever form, regarding the subject matter.

12.4 Partial Invalidity. Should any term or provision hereof be deemed invalid, void or enforceable either in its entirety or in a particular application, the remainder of this Agreement shall nonetheless remain in full force and effect.

12.5 No Waiver. The failure of iSkoot at any time or times to require performance of any provisions hereof shall in no manner affect its right at a later time to enforce the same unless the same is explicitly waived in writing and signed by iSkoot.

12.6 No Assignment by You. You are not allowed to assign this Agreement or any rights hereunder.

12.7 Assignment by iSkoot. iSkoot is allowed to at its sole discretion assign this Agreement or any rights hereunder to any third party, without giving prior notice.

12.8 Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A. without giving effect to the conflict of laws provisions thereof, regardless of Your actual state or country of residence.

12.9 Competent Court. Any legal proceedings arising out of or relating to this Agreement will be subject to the exclusive jurisdiction of the courts of the Commonwealth of Massachusetts, U.S.A..

YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND UNDERSTAND THE RIGHTS, OBLIGATIONS, TERMS AND CONDITIONS SET FORTH HEREIN. BY CLICKING ON THE ACCEPT BUTTON AND/OR CONTINUING TO INSTALL THE ISKOOT SOFTWARE, YOU EXPRESSLY CONSENT TO BE BOUND BY THE FOREGOING TERMS AND CONDITIONS AND GRANT TO ISKOOT THE RIGHTS SET FORTH HEREIN.

© 2007 iSkoot Inc.