User Agreement

Last Updated: 14th April 2008

This user agreement, the documents set forth above, and any other services terms (collectively, the "Terms," or this "Agreement," or the "User Agreement") describe the terms and conditions on which Yoyoor, Inc. ("we", "our" or "Yoyoor") offers a user ("Customer", "User", "you", "your" or "subscriber") mobile phone rental services ("Services") and the www.yoyoor.com web site ("Web Site"). If you have a question about this Agreement, please contact us by sending e-mail to YoYo@yoyoor.com.

1. Acceptance of Terms.

By using this Web Site or any Service you agree to the Terms. We may amend the Terms at any time. Subject Section 4.2 Changes to Fees, Section below amended Terms will automatically be effective seven (7) days after we have posted the amended Terms. Your continued use of our Services will signify your acceptance of any amended Terms. If you do not agree to the changes, you may discontinue your registration and use of the Services by sending an email request to YoYo@yoyoor.com . The Terms may not be otherwise amended except in a writing signed by both parties. Throughout this Agreement, (i) the phrase "in our discretion" or "in its discretion" means in Yoyoor's sole and arbitrary discretion and (ii) the term "including" means "including without limitation." Yoyoor reserves the right to reject this Agreement for any reason or no reason, prior to acceptance thereof by Yoyoor. Provision of any Service shall indicate Yoyoor's acceptance of this Agreement, but does not obligate Yoyoor to provide access to any or all Services, such access to be provided at the sole discretion of Yoyoor.

2. Eligibility; Registration; Equipment Usage.

2.1. Eligibility. Use of the Services is limited to parties that lawfully can enter into and form contracts under applicable law. Without limiting the foregoing, the Services are not available to minors. Services are not available to Users where use of the Services has been suspended or terminated.

2.2. Registration. You must submit a complete registration form on behalf of yourself or the corporation, partnership or other legal entity that will be using the Services. By accepting this Agreement, you represent that (a) you are eighteen (18) years or older and, if applicable, (b) you are authorized to sign for and bind the corporation, partnership or other legal entity that will be using the Services. Your "Registration" includes your personal information, credit card information and any Services and related fees you select as well as the period of time for which you shall rent the Phone as defined below ("Rental Period"). Registration through an Authorized Reseller (as defined in Section 4 below) shall be subject to such reseller’s registration process.

2.3. Equipment. As consideration for receiving the mobile phone and using the Services,, you agree and understand that:

2.3.1. All phone and related equipment including phone, batteries, SIM card, adapters, bag, data card, and other equipment ("Phone") is the property of Yoyoor. You have examined the Phone and that it is in good working order at the time of receipt

2.3.2. You shall return the Phone in essentially same condition as received and shall pay Yoyoor US$500 or some other amount less than US$500 as unilaterally determined by Yoyoor. You shall pay all handling fees charged by Yoyoor with respect to the return of and/or repaid of a Phone. No insurance is provided by Yoyoor for the Phone.

2.3.3. Upon expiration of the Rental Period, you shall return the Phone to Yoyoor or an Authorized Reseller. In the event the Phone is shipped back to Yoyoor, the transit time shall be an extension of the Rental Period and charges will continue to be incurred until the Phone is received by Yoyoor as specified in Section 2.3.2 above. You will remain liable for any damage to the equipment, while the equipment is in transit. You will pay the rental charge from the delivery date until the end of the Rental Period or the date the Phone is returned to and accepted by Yoyoor, whichever is later. Packages returned with any components or pieces missing from the package (kit) provided will continue to be charged full rental until all such missing components or pieces are returned or replacement value of the Phone is paid. If You intend to extend the Rental Period beyond original return date, Yoyoor must be notified at least 2 business days in advance.

2.3.4. You understand that the Phone and Service will operate only in selected countries where one of Yoyoor's service providers offers roaming. You further understands that the Phone and Service will not work in every locale within the selected countries and that this and all cellular phones are subject to incomplete or dropped calls and connection interference.

3. Website, Services and Phone.

3.1. Right to Refuse Services. Yoyoor may refuse the Services to anyone at any time, in our discretion. Yoyoor reserves the right to discontinue, temporarily or permanently, any or all of the Services to anyone at any time, with or without notice. Yoyoor will refund you amounts it has charged you for each whole month of prepaid service for which Yoyoor refused or discontinued Services, as such amounts are determined by Yoyoor, only if (i) Yoyoor exercises its right to refuse service or discontinue under this section, and (ii) you have prepaid for the refused or discontinued Services. Yoyoor shall not be liable to you or any third-party for any termination of your access to the Service except as set forth herein.

3.2. License. You grant Yoyoor a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, with full rights to sublicense (through multiple tiers) right to exercise the copyright and publicity rights (but no other rights) you have in any information you provide us, in any media now known or not currently known, for the purpose of offering the Services.

3.3. Privacy. Yoyoor will only use your information in accordance with our Privacy Policy. The Privacy Policy is part of this Agreement. Please note that when you voluntarily disclose personal information, that information may be collected and used by others.

3.4. Passwords and Security. You will at all times maintain the confidentiality of your user names and passwords. If you are a corporation, partnership or other legal entity, you are responsible for all activity and all charges by such employees. If there is a breach of security through your account, you must immediately change your password and notify us at YoYo@yoyoor.com . You will be liable for any unauthorized use of the Services until you notify us of the security breach.

3.5. Accurate and Complete Information. You will provide to Yoyoor only true, accurate, current and complete information, including, as applicable, your credit card number and other financial information, and will update that information to keep it true, accurate, current and complete. Yoyoor, its agents, suppliers, and subcontractors have the right to recover from you any costs or losses incurred as a direct or indirect result of the inaccurate or incomplete information.

3.6. Limited Agency. You authorize Yoyoor to retrieve and post information and materials necessary to provide the Services to you, and you hereby appoint Yoyoor as your agent for this limited purpose. You permit Yoyoor to use such retrieved information and materials to accomplish the foregoing, and to communicate with Callers on your behalf.

3.7. General Compliance with Laws. You will comply with all applicable laws, statutes, ordinances and regulations in your use of the Services.

3.8. Service Term. The Services are offered on a daily basis for the Rental Period which begins on the date that your Service is activated and you accept the Terms ("Activation Date"). Expiration of the Rental Period or termination of Service does not excuse you from paying all unpaid, accrued charges due in relation to the Agreement. Upon termination, you will no longer have access to the Service. Yoyoor accepts no liability for loss arising from such termination.

4. Fees.

4.1. Generally. Yoyoor or its authorized reseller from whom you order the Services from ("Authorized Reseller") will charge you fees in accordance with the Yoyoor or the Authorized Reseller Fees Policy set forth at http://www.yoyoor.com/fees_policy.jsp . Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees associated with using the Service and all applicable U.S., state, foreign taxes. Value Added Taxes in certain countries are additional; and will be added. Rates are subject to change without notice.

4.2. Changes to Fees. Yoyoor or the Authorized Reseller may change the Fees Policy effective seven (7) days after those changes have been posted on the Web Site and may add new fees effective immediately upon posting the new fees. We may change temporarily our fees for promotional events (for example, free minutes days) and such changes are effective when we post the temporary promotional event. If you have prepaid for services, Yoyoor or the Authorized Reseller will either maintain your existing service or refund your payment in accordance with Section 3.1.

4.3. Credit Cards or Paypal. You will be required to place a credit card (Visa, MasterCard, American Express, or Discover) on file or have a valid Paypal account on file for automatic billing prior to using the Services. You will be billed a monthly finance charge of the lower of 1.5% or the highest amount permitted by applicable law if your account becomes past due. The Services may be suspended for non-payment. You will reimburse Yoyoor for any costs arising from initiation of collections activity. You agree to promptly notify Yoyoor of any changes to your credit card account number, its expiration date and/or your billing address, and you agree to promptly notify Yoyoor if your credit card or Paypal expires or is cancelled for any reason. If your credit card or Paypal account is invalid for any reason, the Service may be suspended and your account will be restricted. Yoyoor accepts no liability for any loss due to an invalid credit card or Paypal account. As the account holder, you are responsible for all charges incurred, including applicable taxes, and all purchases made by you or anyone that uses your account, including your family, friends and co-workers.

4.4. Fraudulent Calls. You are responsible for all calls made from the Phone, regardless if the phone has been lost, stolen, or otherwise used by a third party or whether or not You personally make the calls for which the charges are imposed. You shall pay all costs associated with collecting any bad debts related to your use of the Services.

4.5. Billing Cycles. Yoyoor or the Authorized Reseller will determine your account's billing cycle, which will determine your invoicing date as well as your payment due date. Yoyoor or the Authorized Reseller may charge your credit card for any unpaid account balance at any time, but may, in its discretion, defer charging your card. Yoyoor or the Authorized Reseller may immediately charge all unpaid balances if you close your account. Without limiting any other remedy, Yoyoor or the Authorized Reseller may terminate any services immediately should Yoyoor or the Authorized Reseller be unable to charge your credit card or receive funds via your Paypal account. Yoyoor is entitled to bill You, on a delayed basis, at any time after the Phone has been returned for any and all charges for which You shall be responsible pursuant hereto, whether or not Yoyoor is aware of such charges at the time of the return of the Pone. All charges and other amounts billed pursuant to this agreement are payable by You at the end of the Rental Period, or if not computed at the end of rental period, then upon demand mailed or faxed by Yoyoor to You.

4.6. Other Terms. Some of the Services may have additional terms of use. Any such terms will be displayed in connection with the applicable services and are incorporated into these Terms by reference.

4.7. Discounts, Credits and Refunds. Yoyoor or the Authorized Reseller may, in its discretion, offer discounts, coupons or promotions that may reduce applicable fees. Users may request credits to their account by contacting Yoyoor or the Authorized Reseller customer service. Credits or refunds will be granted at Yoyoor or the Authorized Reseller’s sole discretion.

5. Limitations on Use of Services.

5.1. Terms. Services made available by Yoyoor, including software (collectively, "Materials") is the intellectual property of Yoyoor and/or its suppliers. Your use of the Materials are governed by the terms of the end user license agreement, if any, which accompanies or is included with the Materials ("License Agreement"). You may not install or use any Materials that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms.

5.2. License. For any Materials not accompanied by a license agreement, Yoyoor grants you, the user, a personal, nontransferable license to use the Materials for viewing and otherwise using the Yoyoor website in accordance with these Terms of Use, and for no other purpose provided that you keep intact all copyright and other proprietary notices.

5.3. Intellectual Property. All Materials are owned by Yoyoor and/or its suppliers and is protected by copyright laws and international treaty provisions. Any reproduction or redistribution of the Materials are expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. Without limiting the foregoing, copying or reproduction of the Materials to any other server or location for further reproduction or redistribution is expressly prohibited.

5.4. Export Control Laws. You acknowledge that the Materials, and any accompanying documentation and/or technical information, is subject to applicable export control laws and regulations of the USA. You agree not to export or re-export the Materials, directly or indirectly, to any countries that are subject to USA export restrictions.

5.5. No Unauthorized Use. Yoyoor respects copyright law and expects our Users to do the same. Unauthorized copying or distribution of copyrighted works is an infringement of the copyright holders' rights. In our discretion and in appropriate circumstances, Yoyoor may terminate the accounts of users who infringe upon the copyright, or other proprietary rights of a third party.

5.6. Permitted Uses and Use Restrictions. You will use Phone in a careful and proper manner, in accordance with the instructions, and in no other manner. You will not:

• a. Effect any repairs or modifications to the Phone;
• b. Remove or interfere with any certification markers affixed to the Phone;
• c. Deface or add to the Phone in any way;
• d. Sublet or allow the use of the Phone by any third party;
• e. Attempt to dispose of the Phone or to grant any interest in the Phone to any third party; and
• f. Use the phone on aircraft of any type, at gas stations and while driving.

5.7. Prohibited Uses. You agree to use the Service only for lawful purposes. This means that you agree not to use them for transmitting or receiving any communication or material of any kind when in Yoyoor’s sole judgment the transmission, receipt or possession of such communication or material (i) would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law or (ii) encourages conduct that would constitute a criminal offense, give rise to a civil liability, or otherwise violate any applicable local, state, national or international law. Yoyoor reserves the right to terminate your Service immediately and without advance notice if Yoyoor, in its sole discretion, believes that you have violated the above restrictions, leaving you responsible for all charges, including without limitation unbilled charges, plus a disconnect fee, if any, all of which immediately become due and payable. Should You:

• (a) obtain use of the Phone by any misrepresentation or fraudulent means, or
• (b) tamper with the Phone meter, or
• (c) use the Phone for any illegal or improper purpose, or
• (d) otherwise commit a breach of these terms and conditions then Yoyoor may, at its option and in addition to other remedies available hereunder at law or in equity, (i) terminate this agreement; (ii) immediately terminate all services to You, and (iii) take immediate possession of the Phone without being obliged to repay any portion of the rental charges. No remedy of Yoyoor shall be exclusive of any other remedy whether provided herein or available at law or in equity, but shall be cumulative with other remedies. You are liable for any and all use of the Service by any person making use of the Service provided to you and agree to indemnify and hold harmless Yoyoor against any and all liability for any such use that fails to comply with this Section 5.6. If Yoyoor, in its sole discretion believes that you have violated the above restrictions, Yoyoor may forward the objectionable material, as well as your communications with Yoyoor and your personally identifiable information to the appropriate authorities for investigation and prosecution.

5.8. Other Restrictions. Notwithstanding anything in this Agreement to the contrary, you agree that you will not:

5.8.1. operate or utilize the Services in a manner that violates any applicable local, state, national or international law or governmental regulation, policy procedure or ordinance;

5.8.2. operate or utilize the Services, including the content, monitoring information, services and features contained on or through the Services, in a manner that violates the Terms of Service or Privacy Policy;

5.8.3. sell, assign, rent, lease, distribute, export, import, act as intermediary or provider, act as a service bureau, or otherwise grant rights in the Services, including, without limitation, through sublicense, to any other person or entity;

5.8.4. undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Services and/or data and/or content or monitoring information transmitted, processed or stored by Yoyoor or other users of the Services;

5.8.5. attempt to hack the Services or any communication initiated by the Services or to defeat or overcome any encryption and/or other technical protection methods implemented by Yoyoor with respect to the Services and/or data and/or content or monitoring information transmitted, processed or stored by Yoyoor or other users of the Services;

5.8.6. interfere with or in any manner compromise any of Yoyoor's security measures; or

5.8.7. alter, modify, delete, or otherwise interfere with or in any manner compromise any content, monitoring information, advertising, services and/or features contained on or through the Services, including, without limitation, the Service’s advertising and/or content delivery and display functionality.

5.9 Loss of Service Due to Power Failure. You acknowledge and understand that the Service does not function in the event of power failure.

6. Indemnity and Disclaimer

6.1. Indemnity. You will, at your own expense, indemnify, defend and hold Yoyoor, it Authorized Resellers and suppliers and the affiliates, officers, directors, agents, and employees of such harmless from and against any loss, cost, damages, liability, or expense arising out of or relating to (a) a third-party claim, action or allegation of infringement, misuse or misappropriation based on information, data, files or other content submitted by you to us; (b) any fraud, manipulation, or other breach of this Agreement by you; (c) any third-party claim, action or allegation brought against Yoyoor arising out of or relating to a dispute with you over the terms and conditions of an agreement or related to the purchase or sale of any goods or services; (d) your violation of any law or the rights of a third party; or (e) your use, or Yoyoor's provision, of the Services or use of your account by any third party. Yoyoor will have the right to participate in its defense and hire counsel of its choice, at your expense. You will not settle any action or claims on Yoyoor's behalf without the prior written consent of Yoyoor.

6.2. No Warranty. The Phone is provided “AS IS” with no warranty as to its operation or functionality. You waive any current or future liability claims against Yoyoor, including but not limited to any claims for damages due to missed calls, incomplete calls, or other Phone failure.

6.3 Disclaimer. Neither Yoyoor nor its suppliers and Authorized Resellers will be liable for (i) any loss of business, profits or goodwill, loss of use or data, interruption of business or for any indirect, special, incidental or consequential damages of any character, (however arising, including negligence) arising out of or in connection with this agreement even if Yoyoor or its supplier or Authorized Resellers is aware of the possibility of such damages, or (ii) any damages that result in any way from your use or inability to use the Phone or Services, or that result from errors, defects, omissions, delays in operation or transmission, or any other failure of performance of the Phone or Services. Our liability, and the liability of our suppliers and Authorized Resellers, to you or any third parties in any circumstance is limited to the greater of (a) the amount of fees you pay to us in during the Rental Period, or (b) US$100. No advice or information from Yoyoor, whether oral or written, shall create any warranty not expressly stated in the Terms of Use.

7. General.

7.1. Termination at Yoyoor Discretion. In our discretion, we may immediately issue a warning, temporarily suspend, or terminate your use of the Services if you breach any provision of this Agreement. This Section does not limit any other remedies that may be available to Yoyoor.

7.2. Third Party Services. Yoyoor services rely in part on the proper functioning and interaction of third party, services and software with the Yoyoor website and software. Failure of, or changes to, or misconduct by such third parties or their websites, services or software may affect our provision of services. Yoyoor is not liable for any third party actions or omissions.

7.3. No Agency. Except for the limited purpose stated in the 'Limited Agency' Section, you and Yoyoor are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship is intended or created by this Agreement.

7.4. Notices. Except as explicitly stated otherwise, any notices will be given by email to YoYo@yoyoor.com (in the case of Yoyoor) or to the email address you provide to Yoyoor during the registration process (in your case), or such other address as the party will specify. Notice will be deemed given twenty four (24) hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Yoyoor during the registration process. In such case, notice will be deemed given three (3) days after the date of mailing.

7.5. Arbitration. Any controversy or claim in any way arising out of or relating to this Agreement will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitration will be conducted in Santa Clara County, California and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or Yoyoor may seek any interim or preliminary relief from a court of competent jurisdiction in California necessary to protect the rights or property of you or Yoyoor pending the completion of arbitration.

7.6. Governing Law. California law will govern this Agreement, except for the body of law relating to conflicts of law. Subject to the Arbitration Section, venue for any legal action will be the state courts of San Mateo County, California, or the federal courts of the Northern District of California. The prevailing party in any litigation in connection with this Agreement will be entitled to recover from the other party its costs and reasonable attorneys' fees and other expenses.

7.7. Waivers. A party's failure to enforce any provision of this Agreement shall not be a waiver of the provision or the right to enforce it at a later time.

7.8. Entire Agreement. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. You agree that you are not entering into this Agreement in reliance on any statements or representations other than those set forth herein. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced.

7.9. Assignment. This Agreement and your user names and passwords are not assignable, transferable or sub licensable by you without Yoyoor's prior written consent, and any such conveyance will be null and void.

7.10. Attorneys' Fees. The prevailing party in any litigation in connection with this Agreement will be entitled to recover from the other party its costs and reasonable attorneys' fees and other expenses.

7.11. Electronic Signatures. You acknowledge and agree that by clicking on the "I AGREE" button (or similar buttons or links as may be designated by Yoyoor to show your acceptance of this Agreement and/or your agreement to use the Services), you are entering into a legally binding contract. You hereby agree to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. 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.

7.12. Language. The original English version of this Agreement may have been translated into other languages. In the event of inconsistency or discrepancy between the English version and any other language version of this Agreement, the English language version shall prevail.

7.13. Headings. Should any term or condition be in conflict between this Agreement and any document incorporated by reference into this Agreement, the terms of this Agreement will control. The use of headings is for convenience and will not affect the interpretation of this Agreement.