Program/Terms of Service License Agreement

NexTalk.net Users:

INTRODUCTION/ACCEPTANCE OF TERMS. NXi offers you (the "user" or "Customer") an account for the NexTalk.net Service (the "Service") on the following terms (the "Agreement"). Use of the NexTalk software (the "Program") is controlled by this agreement.

By using the Service in any way you are agreeing to comply with these terms, which we may update without notice. We encourage you to check www.nextalk.net for changes at any time. Unless we expressly note otherwise, these terms incorporate and supersede any other terms associated with the files and applications associated with the Service operated by NXi Communications, Inc. ("NXi", "we", or "us").

OWNERSHIP/COPYRIGHT OF PROGRAMS. Programs are the proprietary products of NXi and are protected by copyright and other intellectual property laws. Customer acquires only the right to use Programs and does not acquire any rights, either express or implied, in Programs or media containing Programs other than those specified in this License. NXi shall at all times retain all rights, title and interest, including intellectual property rights, in Programs and media.

The Service and any software it incorporates ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by us you will not modify, sell, or distribute works based on the Service or the Software.

LICENSE. Your license to Programs is subject to the following restrictions:

1. NXi reserves all rights not expressly granted to you.
2. Customer may use the Programs solely for its own internal purposes.
3. Customer shall not: (a) remove any product identification, copyright notices, or other notices or proprietary restrictions from Programs; (b) transfer, sell, assign or otherwise convey Programs to another party without NXi's prior written consent; or (c) cause or permit reverse engineering, disassembly, or decompilation of Programs.

LIMITED WARRANTIES/EXCLUSIVE REMEDIES. Your use of the Service or Programs to access the Service are limited to the following warranties.

While we make every effort to provide the highest quality performance by the Service, we provide the Service on an "as is, as available" basis. You use it at your own risk, and NXi and its employees are not liable for any errors or omissions in communications transmitted by the Service, or for any form of loss or damage (including any consequential, indirect, incidental, special, or exemplary damages, even if known to us) that may result from its use. The Service is neither intended nor approved for communications with emergency services (911 calls, etc.), and NXi will accept no liability for errors or omissions in such calls. No warranty not set forth in this agreement will be valid. If any of the above provisions are void under governing law, our liability shall be limited to the extent permitted by law.

NXi DOES NOT warrant that: Programs will meet Customer's requirements, Programs will operate in combinations Customer may select for use, operation of Programs will be uninterrupted or error-free, or all Program errors will be corrected. These warranties are exclusive and in lieu of all other warranties, whether express or implied, including implied warranties of merchantability or fitness for a particular purpose. These are Customer's sole and exclusive remedies for any breach of warranty. This limited warranty gives you specific legal rights. You may have others, which vary from state to state.

REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL NXi BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR DATA USE, INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF NXi HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some states do not allow the limitation of liability for incidental or consequential damages so the above limitation may not apply to you.

IN NO CASE SHALL NXi'S LIABILITY EXCEED THE PURCHASE PRICE FOR THE PROGRAMS. The disclaimers and limitations set forth shall apply regardless of whether you accept the Programs.

NXI DISCRETION OVER CONTENT, USE AND OPERATION OF THE SERVICE. We are not liable for the deletion or loss of messages, other communications, or other content maintained or transmitted by the Service. We may change or terminate the Service or any part of it without notice or liability.

We may terminate or change your password, account, or use of all or any part of the Service without notice and for any reason, including Technical/development reasons and/or violation of these terms.

YOUR RESPONSIBILITY FOR CONTENT & CONDUCT. You are responsible for any content that you transmit through the Service. NXi will not accept responsibility for content that:

• is unlawful, harmful to minors, threatening, harassing, abusive, defamatory, vulgar, gratuitously violent, obscene, pornographic, libelous, invasive of another's privacy, or racially, ethnically or otherwise offensive;
• includes personally identifiable information about children;
• infringes someone else's intellectual property or other rights;
• advocates or solicits violence or other criminal conduct;
• violates any law, regulation, or contract;
• promotes participation in multi-level or pyramid marketing initiatives;
• constitutes a raffle, sweepstakes, lottery, or any other form of gambling;
• specifically advertises any product or service that is illegal in Utah or the domicile of either the Distributor or Recipient;
• constitutes unsolicited or unauthorized advertising, or any unsolicited commercial communication;
• contains software viruses or any other computer code, files, or programs that are designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment.

You will comply with all applicable laws and regulations regarding online conduct and content. You will not use the Service to collect, store, or use information about others for the purpose of sending unsolicited or unauthorized communications. Except as we specifically authorize (via license or otherwise), you will not reproduce, distribute, or commercially exploit any part of the Service.

ACCURATE INFORMATION. You will provide accurate and current information on all registration forms on the Service. You will not impersonate any person or entity, or misrepresent your affiliation with a person or entity.

PRIVACY POLICY. User information is requested for internal purposes only. NXi considers all information supplied by users to be private and personal. User information will not be published, released, or sold in any form to anyone except as required by law or in the good faith belief that doing so is necessary to:

1. comply with legal process;
2. enforce these terms,
3. protect the rights, property, or personal safety of NXi, its users, or the public, or
4. administer the Service.

SECURITY / NO DISRUPTION. You are responsible for all activities that occur under your password or account, and will keep your password(s) confidential. You will immediately notify us of any unauthorized use of your password or account or any other breach of security. You will not disrupt the functioning of the Service, solicit another user's password, or otherwise act in a way that interferes with other users' use of the Service. Nor may you transmit or distribute any computer program that damages, detrimentally interferes with, surreptitiously intercepts, or expropriates any system, data, or personal information.

OBJECTIONABLE CONTENT. The opinions and views expressed by other users of the Service do not necessarily reflect those of NXi. You waive any claim resulting from your exposure to material on the Service that is offensive, indecent, or otherwise objectionable.

INDEMNITY. You will indemnify NXi, and its affiliates, officers, agents, and employees against any claim or demand, including reasonable attorneys' fees, related to content you distribute via the Service or your use of or conduct on the Service.

GENERAL TERMS. This Agreement constitutes the entire agreement between you and NXi and governs your use of the Service. Interpretations of the Agreement and determinations that you have breached the Agreement will be made at our reasonable discretion and based on facts known to us. Our failure to enforce any right under this Agreement will not waive that right. If any provision of this Agreement is invalid, the Agreement should be interpreted to effect the intent of the parties, and the remaining provisions will remain in effect. You must file any claim or suit related to the Service within one year after it arises. The section titles in this Agreement are for convenience only and have no substantive effect.

GOVERNING LAW. Except as otherwise restricted by law, this License shall be governed by, and interpreted in accordance with, the laws of the State of Utah of the United States of America, without regard to laws of Utah governing conflict of laws. Furthermore, it is understood that this License shall be treated as though it were executed in Salt Lake County of the State of Utah. The parties agree that any action relating to this License shall be instituted and prosecuted in the courts of competent jurisdiction of the State of Utah. You agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in Utah for any claim or dispute with NXi or any of its affiliates, officers, agents, or employees.

U.S. GOVERNMENT RESTRICTED RIGHTS. The Software and documentation are provided as "Commercial Computer Software" or "restricted computer software". They are delivered and licensed as "commercial computer software" as defined in DFARS 252.227-7013 (Oct 1988), DFARS 252.211-7015 (May 1991) or DFARS 252.227-7014 (Jun 1995), or as "Restricted computer software" as defined in FAR 52.227-19 (Jun 1987) (or any equivalent agency regulation or contract clause), whichever is applicable. You have only those rights provided for such Software and Documentation by the applicable FAR or DFARS clause or the NXi standard software agreement for the product.

ENTIRE LICENSE. This License sets forth the entire understanding and License between you and NXi and may be amended only in a writing signed by both parties. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, SALES PERSON OR OTHER PERSON IS AUTHORIZED TO MODIFY THIS LICENSE OR TO MAKE ANY REPRESENTATION OR PROMISE WHICH IS DIFFERENT THAN, OR IN ADDITION TO, THE REPRESENTATIONS OR PROMISES OF THIS LICENSE.

WAIVER. No waiver of any right under this License shall be effective unless in writing, signed by a duly authorized representative of the party to be bound. No waiver of any past or present right arising from any breach or failure to perform shall be deemed to be a waiver of any future right arising under this License.

SEVERABILITY. If any provision in this License is invalid or unenforceable, that provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this License shall remain unaffected.

NOTICES. Notices to you may be made via email, telephone, or by changes to this Agreement.

NexCom, NexTalk, NXi Text Services, NexTalk for Networks, NexTalk-VM, Stickit, and NexTalk.net are registered trademarks, trademarks or service marks owned by NXi Communications, Inc. All other registered trademarks, trademarks or service marks are used herein for reference purposes only and remain the property of their respective owners.