This End User License Agreement (the "Agreement") for the Beejive BeejiveIM™ Product, associated services and website at www.beejive.com (the "Website") is made and entered into by and between you ("You") and Beejive, Inc. ("BeeJive"). The Software, Documentation, Website, and services provided through BeeJive to which You have access are collectively referred to herein as the "Product." This Agreement sets forth the rights and obligations of the parties associated with Your use the BeeJive Product. You understand that You are entering into a legally binding agreement and representing and warranting that You are at least 18 years of age or possess legal parental or guardian consent, either by (1) clicking on the "I Accept" button below or (2) downloading or using the Product. You agree to accept notices sent electronically, including but not limited to, email messages sent to the current email address of Your account and notices posted on the Website.

1. LICENSE. Subject to the terms and conditions of this Agreement, and in consideration of Your payment of all applicable fees and taxes as set forth in Section 4 below ("Fees"), BeeJive grants to You (and You agree to comply with) a non-sublicensable, non-transferable, non-exclusive, revocable, limited license to use: (i) certain BeeJive BeejiveIM™ proprietary computer software object code identified on the Website in binary executable form only (the "Software"), as identified on the Website and confirmed in the checkout page and in Your invoice and (ii) certain BeeJive proprietary documentation in the form generally made available by BeeJive to its customers on the BeeJive Website for use with the Software (the "Documentation"). A license key that enables the Software shall be forwarded to You electronically upon payment of all Fees. Your use of the Product shall be restricted to using the Product in instant messaging applications for: (A) one (1) personal mobile phone ("Standard Plan"); (B) one (1) personal mobile phone at any given time, provided that You may use the Product for another one of Your mobile phones, provided You cease using the Product for any other mobile phone ("User Plan"); or (C) a 30 day free trial ("Trial Plan"). The type of plan is indicted on the checkout page of the Website and in Your invoice, if any. You agree to be responsible for the acts and/or omissions of any third party using the Product on Your mobile phone, including any breach of the terms set forth herein.

2. EQUIPMENT. The Product is designed for use only with the equipment and accessories specified in the Documentation. BeeJive assumes no responsibility under this Agreement for obtaining or providing such equipment. You are also responsible for obtaining such equipment and ensuring a proper environment and proper utilities for the computer system and mobile phone on which the Software will operate. Any transaction for such equipment and/or IM network is entirely between You and the third party equipment provider, not BeeJive.

3. RESTRICTIONS. For purposes of this Agreement, "Intellectual Property Rights" means any and all rights existing under patent law, copyright law, semiconductor chip protection law, moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all registrations, applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. All ownership rights, title, and Intellectual Property Rights in and to the Product shall remain in BeeJive and/or its licensors.

You agree not to, or to allow others to,: (i) adapt, alter, modify, decompile, translate, make derivative works, disassemble, or reverse engineer the Product, including without limitation, the source code and any other underlying ideas or algorithms of the Software (except to the extent applicable laws specifically prohibit such restriction); (ii) create license keys that enable the Software; (iii) copy the Software; (iv) use the Product in conjunction with dangerous activities, including but not limited to, the operation of nuclear facilities, air traffic control or life support, where the failure of the Product could lead to death, personal injury, or extensive environmental damage (collectively "Prohibited Activities"); (v) transfer, sublicense, loan, sell, lease, use for timesharing or service bureau purposes, or otherwise commercially use or exploit the Product; use the Product in violation of any applicable U.S. Federal Communications Commission or other U.S. regulation or law; or (vi) ship, divert, transship, transfer, export or re-export the Product or any component thereof into any country or use it in any manner prohibited by any export control laws, restrictions, or regulations administered by the U.S. Commerce Department's Bureau of Export Administration, the U.S. Department of Treasury's Office of Foreign Assets Control or any other applicable government agency. For the avoidance of doubt, nothing in this Agreement grants to You any rights whatsoever in or relating to the source code of the Software.

By using the Product You agree to:

A. Use the Product for lawful purposes only and in compliance with any policies posted on the Website or conveyed by electronic notice;

B. Use the Product only through the interfaces and protocols provided by or authorized by BeeJive;

C. Not transmit information over the Website that infringes the rights of others or is harmful, abusive, racially or ethnically offensive, vulgar, obscene, sexually explicit, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, libelous, threatening, or in a reasonable person's view, objectionable;

D. Not use the Product to transmit or send unsolicited bulk communications, including e-mail or instant messages or authorize, enable, or encourage others to do the same unsolicited bulk communications;

E. Not use the Product in a way that prevents or inhibits another user from enjoying the Product;

F. Not obtain the communications protocol for accessing the Product;

G. Not remove, obscure or alter any notices or indications of any intellectual property rights, including trade marks, copyrights, or patents, or any electronic notices;

H. Not interfere with, or attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the Product servers;

I. Not to take any action that imposes an unreasonable or disproportionately large load on our infrastructure; and

J. Not to upload invalid data, viruses, worms, or other harmful software to the Product.

Any trade names, trademarks, service marks, logos, trade dress, and any other distinctive or proprietary symbols, labels, designs or designations ("Branding") as well as any copyright or other proprietary notices appearing on or in the Product shall be maintained and shall not be removed, modified or altered by You. You agree not to challenge or assist others to challenge the BeeJive's Branding, Intellectual Property Rights or registration or applications thereof. You shall not acquire any right, title or interest in or to BeeJive's Branding.

You are solely responsible for Your own instant messages, and any text files, or other materials or content sent with or attached to each instant message (collectively, "IM") and submissions to the Website, including without limitation text, files, video, audio, images, photos, and any other content or material (collectively, "User Submission") and the consequences of sending them. By transmitting Your User Submission, You represent that You have the right to do so and hereby affirm, represent, and/or warrant that You own or have the necessary licenses, rights, consents, and permission to use, display, and authorize BeeJive to use, modify, copy, reproduce, distribute, prepare derivative works of and display Your User submissions. In connection with Your IMs and User Submissions, You agree that You will not provide any material though the Product that is copyrighted, trade marked, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless You are the owner of such rights or have permission from their rightful owner to post the material and to grant BeeJive all of the license rights.

You shall retain all of Your ownership rights in Your IMs and User Submissions. However, by submitting User Submissions to BeeJive, You hereby grant BeeJive a worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, perpetual, sublicenseable and fully transferable license to use, reproduce, distribute, prepare derivative works of, and display the material in connection with the Product and BeeJive's business. To the extent You do not have ownership rights to any of Your User Submissions, You shall indemnify BeeJive for any claim regarding BeeJive's use of Your User Submissions. You agree that BeeJive does not guarantee any confidentiality with respect to any material, including User Submissions, that You provide through the Product.

You agree that when using the Product, You will be exposed to User Submissions and IMs that are inaccurate, offensive, indecent, or objectionable, and that BeeJive is not responsible the IMs, User Submissions, or their accuracy, usefulness, safety, or Intellectual Property Rights, and, and You agree to waive, and hereby do waive, any legal or equitable rights or remedies You have or may have against BeeJive with respect thereto.

4. PAYMENT. You agree to pay all fees and other charges, including applicable taxes, for the Product and any services: for the Standard Plan: 19.95 U.S. dollars ($19.95) or for the User Plan: 29.95 U.S. dollars ($29.95).

a) Payment Methods. BeeJive shall only accept credit card or PayPal® payments for Product and may require additional verifications or information before accepting any order. BeeJive does not accept debit cards or check cards that require use of a personal identification number as a method of payment.

b) Non-Payment. Should Your designated credit card fail to process or accept BeeJive's charges, You will be considered in default and will be subject to an interest charge of 1.5% per month on the outstanding balance. After thirty (30) days of non-payment, BeeJive may, at its sole discretion, terminate this Agreement.

d) Price Changes. You acknowledge and agree that BeeJive has the right to change its prices for the Product at any time.

5. UPDATES. In BeeJive's sole discretion it shall provide You Product updates, provided You have paid all applicable fees. Your use of any updates shall be subject to the same terms applicable to the Product as set forth under this Agreement. You agree that such updates shall be installed as required by the terms of the applicable guidelines available at the BeeJive Website.

6. CONFIDENTIAL INFORMATION. In connection with performance of its obligations hereunder, a BeeJive may disclose to You certain information it considers confidential and/or proprietary ("Confidential Information") including, but not limited to, tangible, intangible, visual, electronic, present, or future information such as: (a) trade secrets; (b) financial information, including pricing; (c) technical information, including research, development, procedures, algorithms, data, designs, and know-how; (d) business information, including operations, planning, marketing interests, and products, and/or (e) any information clearly and conspicuously marked as "confidential" or with a similar designation or information disclosed in a manner in which is reasonably understood under the circumstances as confidential. You acknowledge that the source and object code of the Software remains a confidential trade secret of BeeJive and/or its licensors and that You are not entitled to review either the object code or the source code of the Software for any reason at any time. You shall protect the Confidential Information of Discloser by using the same degree of care, but no less than a reasonable degree of care, that it uses to protect its own confidential information of a like nature to prevent its unauthorized use, dissemination or publication to any unauthorized third parties. You may disclose Confidential Information as needed to comply with a court order, subpoena, or other government demand (provided that You first promptly notify Discloser and give Discloser the opportunity to challenge such court order, subpoena, or government demand). Damages for improper disclosure of Confidential Information may be irreparable; therefore, BeeJive is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section 6 or Section 3.

7. DMCA NOTICE. If You believe that Your copyrighted work has been copied in a way that constitutes copyright infringement or that there is infringing material available through the Website, please notify BeeJive's copyright agent, in accordance with the Digital Millennium Copyright Act of 1998 ("DMCA"). For Your complaint to be valid under the DMCA, You must provide the following information in writing:

A. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;

B. Identification of the copyrighted work that You claim has been infringed;

C. Identification of the material that is claimed to be infringing and where it is located on the Website;

D. Information reasonably sufficient to permit BeeJive to contact the You, such as Your address, telephone number, and, e-mail address;

E. A statement that You have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and

F. A statement, made under penalty of perjury, that the above information is accurate, and that You are the copyright owner or are authorized to act on behalf of the owner. The above information must be submitted to the following DMCA Agent:

Name: Robert D. Nagel, Esq.
Attn: DMCA Notice, BeeJive, Inc.
Orrick, Herrington & Sutcliffe LLP
1040 Marsh Road
Menlo Park, California 94025
dmca@beejive.com


8. WARRANTY DISCLAIMER. BEEJIVE AND ITS LICENSORS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NON-INFRINGEMENT. THE PRODUCT AND SERVICES ARE PROVIDED BY BEEJIVE AND ITS LICENSORS "AS IS" AND "AS AVAILABLE." YOU AGREE THAT THE USE OF THE PRODUCT IS AT YOUR SOLE RISK. BEEJIVE AND ITS LICENSORS DO NOT WARRANT THAT THE PRODUCT OR ANY PORTION THEREOF, ARE ERROR OR BUG FREE, THAT YOUR USE OF THE PRODUCT OR SERVICES WILL BE UNINTERRUPTED, THAT PRODUCT WILL PERFORM EXACTLY AS DESCRIBED IN ANY DOCUMENTATION, OR THAT THE PRODUCT'S OPERATION WILL NOT NEGATIVELY AFFECT OTHER SOFTWARE OR HARDWARE. BEEJIVE AND ITS LICENSORS ASSUME NO RESPONSIBILITY FOR THE PROPER INSTALLATION AND USE OF THE PRODUCT. BEEJIVE AND ITS LICENSORS MAKE NO REPRESENTATIONS ABOUT ANY IM, USER SUBMISSIONS, CONTENT OR INFORMATION MADE ACCESSIBLE BY, OR SENT TO YOU THROUGH THE USE OF THE PRODUCT, AND IS IN NO WAY RESPONSIBLE FOR SUCH INFORMATION. ALL UPDATES, UPGRADES, BUG FIXES, WORKAROUNDS, ERROR CORRECTIONS AND ENHANCEMENTS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AT THE SOLE DISCRETION OF BEEJIVE. THIS SECTION 10 APPLIES TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW. THE PRODUCT IS NOT FAULT TOLERANT and is not designed, manufactured, or intended for Prohibited Activities. THE PRODUCT is offered by BEEJIVE from its facilities in the United States of America. BEEJIVE makes no representations that THE PRODUCT is appropriate or available for use in other countries. Those who access or use THE PRODUCT from other jurisdictions do so at their own volition and are responsible for compliance with local law.

9. LIMITATION OF LIABILITY. IN NO EVENT WILL BEEJIVE AND/OR ITS LICENSORS BE LIABLE (i) FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES RELATED TO OR ARISING FROM YOUR USE, MISUSE, OR INABILITY TO USE THE PRODUCT, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST DATA, LOST PROFITS, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE RESULTING FROM YOUR USE OF THE PRODUCT, IMS, USER SUBMISSIONS, UNAUTHORIZED ACCESS TO OUR SERVERS AND ANY PERSONAL INFORMATION STORED THEREIN, HOWEVER CAUSED (INCLUDING BUT NOT LIMITED TO USE, MISUSE, INABILITY TO USE, OR INTERRUPTED USE) AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED, TO CONTRACT OR TORT AND WHETHER OR NOT BEEJIVE WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE REGARDLESS OF WHETHER ANY REMEDY SET FORTH IN THIS AGREEMENT FAILS IN ITS ESSENTIAL PURPOSE; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE PRODUCT OR DESTRUCTIVE PROPERTIES OF THE PRODUCT. IN NO EVENT SHALL BEEJIVE'S AND/OR ITS LICENSORS' HAVE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID BY YOU FOR THE PRODUCT GIVING RISE TO SUCH LIABILITY.

10. TERM AND TERMINATION. Subject to Your payment of all required Fees, the term of the license granted herein for the Product shall commence upon the date of payment and may be terminated as set forth herein. BeeJive may terminate this Agreement, in whole or in part, if You breach this Agreement. If you are on the Trial Plan, BeeJive may terminate this Agreement at any time and for any reason. Upon termination of this Agreement, all licenses, and any other rights and services provided by BeeJive to You as set forth in this Agreement, shall cease immediately. Upon termination of this Agreement, You shall ensure that all Software is erased or otherwise removed from all Your devices in compliance with the process as instructed by BeeJive. BeeJive also may permanently or temporarily terminate, suspend, or otherwise refuse to permit Your use of the Website without notice or liability, if in Beejive's sole determination, You violate any of the Agreement terms.

Termination of this Agreement, any license, or Your access to the Website, shall not limit Beejive from pursuing other remedies available to it, including injunctive relief, nor shall such termination relieve You of Your obligation to pay all Fees that have accrued or are otherwise owed by You.

11. INDEMNIFICATION. You agree to defend, indemnify and hold harmless Beejive, its licensors, and their respective directors, officers, employees and agents from and against all claims and expenses, including attorney's fees, arising out of Your use of the Product and/or from a third party's use of Your mobile phone and Product. Beejive reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You.

12. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is commercial within the meaning of the applicable civilian and military Federal acquisition regulations and any supplement thereto. If the user of the Software is an agency, department, employee, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, including technical data or manuals, is restricted by the terms, conditions and covenants contained in this Agreement. In accordance with Federal Acquisition Regulation 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies, the use of the Software is further restricted by this Agreement.

13. GENERAL.

A. Headings. Headings are for organizational purposes only and shall in no way affect the interpretation of this Agreement.

B. Assignment. This Agreement is personal to You. You may not assign or otherwise transfer Your rights or delegate Your obligations under this Agreement, in whole or in part, without the prior written consent of Beejive. Any attempted assignment by You shall be null and void. Beejive may assign its right and obligations under this Agreement at its sole discretion.

C. Survival. Upon any expiration or termination of this Agreement, the following Sections of this Agreement shall survive: 2, 3, 4, and 6 through 13.

D. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California and the federal U.S. laws applicable therein, excluding its choice of law provisions, and You and Beejive agree to submit to the personal and exclusive jurisdiction of the courts located in Santa Clara County, California. The parties specifically exclude from application to this Agreement the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act.

E. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and remain enforceable between the parties.

F. No waiver. Failure of either party to act in the event of a breach of this Agreement by the other shall not be deemed a waiver of such breach or a waiver of future breaches.

G. Notices. Any notice given under this Agreement shall be in writing and in the English language and shall be emailed, if to Beejive, to the address as provided at http://www.beejive.com/contact, or if to You, to the address associated with Your account.

H. Force Majeure. Neither party shall be liable for failing or delaying performance of its obligations (except for the payment of money) resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, natural disasters, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.

I. The Agreement. This Agreement, the Beejive Privacy Policy located at www.beejive.com/privacy, and the terms or other provisions located at any Beejive's website (which are all incorporated herein by reference), constitutes a complete, absolute integration and the entire agreement between the parties hereto relating to the subject matters of this Agreement. This Agreement may be revised from time to time at Beejive's sole discretion by publishing the revised Agreement on the Website or otherwise providing the revised Agreement to You. The revised Agreement shall become effective upon such publication or provision. Your acceptance of any revised Agreement is Your continued use of the Product. In addition to this Agreement, Your use of IM capabilities is also subject to any agreement You have with Your IM network provider.

This Agreement was last revised on May 25, 2007.