Welcome to the NxtGenTV family of websites (the "Sites"). This Terms of Services ("TOS") for describes the terms and conditions applicable to your access and use of the Sites and the products and services offered through, or in connection with the Sites (the "Services" and collectively with the Sites, the "Sites Features"). This TOS sets forth the terms and conditions under which NxtGenTV, LLC ("NxtGenTV," "we," or "us") provides you access to the Sites Features.
NxtGenTV may amend this TOS at any time by posting the amended Terms of Services on any of the Sites on which this TOS appears, and you agree that you will be bound by any changes to this TOS. For your convenience, the date of last revision is included at the top of this page. NxtGenTV may make changes to the Sites Features at any time. You understand that NxtGenTV may discontinue or restrict your use of any of the Sites Features for any reason or no reason with or without notice.
II. Account Registration and User ID
an account ("Account") for the use of certain aspects of the Sites Features. When registering for an Account you must provide us with a valid user identity and a valid, functional email address for providing notices and communications to you concerning this TOS and transactions with the Sites Features. You are responsible for the accuracy and completeness of the information which you provide to NxtGenTV in your registration and your use of your Account and the Sites Features. You agree that you shall provide a valid, lawful identity in your registration and that you shall not impersonate any other person. You agree that you will promptly correct any errors in your registration information and will promptly update your registration information when it changes. If you do not have authority to supply information which is required either for registration or for a particular use of the Sites Features, then do not register or do not engage in the particular use of the Sites Features for which you lack such authority.
III. Account Security, Password
It is your responsibility to preserve and protect the confidentiality of your User ID, your password, and your Account. You are entirely responsible for activities conducted under your Account. You agree that you shall (a) make certain that you fully exit from your Account at the end of each of your sessions, and (b) immediately notify NxtGenTV in writing (which may be by email using our contact form) if there is any unauthorized use of your Account, User ID or password or other security breach. NxtGenTV shall not be liable for any cost, loss, damage or liability which arises or is alleged to arise from your failure to comply with this section.
IV. Pricing and Payment for Services
Some aspects of the Services require you to pay a fee, the details of which will be made available at a future time. You agree to pay all fees and applicable taxes incurred by you or anyone using an Account you registered. NxtGenTV may revise the pricing for any aspect of the Sites Features at any time. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. If there is a dispute regarding payment of fees to, or Services rendered by, NxtGenTV, your Account may be closed without warning or notice at the sole discretion of NxtGenTV.
Pricing and payment terms and conditions for use of the Services are posted, and may be amended from time to time, at our Pricing Page which is incorporated herein by this reference. NxtGenTV may, from time to time, modify, amend, or supplement its fees and fee-billing methods, and such changes shall be effective immediately upon posting in these TOS or elsewhere on the Sites.
V. Links to Websites of Other Persons
The Sites may provide links to websites of persons other than NxtGenTV. Those links to other websites are provided solely as a courtesy without any representation or warranty as to their content, use, or terms. Your use of such other websites is subject to the terms and conditions and privacy policies, if any, of the persons who control such other websites and you use them at your own risk. NxtGenTV cannot control such websites of other persons.
The Sites Features are available only to persons who are capable under the applicable law of forming valid contracts. If you are a natural person using the Sites Features on behalf of an entity, then by registering an Account in the name of the entity and using the Sites Features you represent and warrant that the entity may lawfully enter into this agreement and that you have lawful authority to bind that entity to these TOS. If you are under the age of 18, or are subject to a legal guardianship, then you can use the Sites Features only if your legal guardian or representative first agrees with us that you may use the Sites Features and then supervises your use of NxtGenTV and the Services.
VII. Interstate and International Use
You recognize that the Internet is global in nature. The Sites Features are intended to be offered only in jurisdictions where the Sites Features and the manner in which they are offered are lawful. If any aspects of the Sites Features are not lawful in the nation, state, or other jurisdiction where you are located, then do not use or attempt to use the Sites Features in that place. If you are accessing or using any of the Sites Features in any nation, state or other jurisdiction which restricts such access or usage, then you shall abide by the laws of that place and refrain from any access or use as required by the laws of the applicable jurisdiction. You also agree that you shall comply with all applicable laws concerning transmission of technical data, including without limitation, the export of technical data from the United States or from the jurisdiction in which you reside or are accessing the Sites Features.
VIII. Termination of Sites Features or Accounts.
NxtGenTV reserves the right to deny access to any of the Sites Features at NxtGenTV's sole and absolute discretion. The Sites Features are offered with the understanding that NxtGenTV may terminate any Account registered to you and/or your access to the Sites Features at any time, for any reason or no reason, including without limitation for any violation of the this TOS or any other Additional Terms . NxtGenTV may stop offering and/or supporting the Sites Features or any aspects thereof at any time.
IX. Your Personal Information
X. Your Communications Content
"Your Communications Content" is the content and form of any information that you post, communicate, transmit, or direct to any third party in any manner through the use of the Sites Features. You are solely responsible for the accuracy, lawfulness, risks and use of the content of Your Communications Content. NxtGenTV does not select, monitor or modify Your Communications Content. "Third party" means any person not
affiliated with us.
XII. Information We Receive, Switch and Transmit Without Recording
NxtGenTV provides systems for the receipt, switching and transmission of Your Communications Content and Your Correspondents' Communications Content during your sessions using the Services. This is similar in some respects to the switching of telephone calls.
XII.I Limited Participation Sessions and Host-approved Participants.
XII.I.I Registered Account Holders Act as Hosts of Limited Participation
Sessions. During a session using NxtGenTV Personal, NxtGenTV Private, or NxtGenTV Professional, NxtGenTV receives and transfers communications only among the Account holder acting as the session host (the "Host") and other participants who have been approved by the Host to participate in that particular private session or conference ("Limited Participation" session). NxtGenTV records both the registration information of the Host and that Host's User ID and email address because only registered Members of NxtGenTV can act as Host of a Limited Participation session. As a necessary condition of participation in a Limited Participation session, NxtGenTV requires that each other participant supply NxtGenTV with a user name and a valid, functional email address with reference to which communications will be switched during that particular session. (The terms of service for uses implemented on NxtGenTV Enterprise software generally will not be covered by this Agreement because NxtGenTV Enterprise software is licensed to Enterprise Customers who operate that software on computer servers owned or controlled by the Enterprise Customer, not under the control
XII.I.II Non-Host Participants in Limited Participation Sessions.
To participate in a Limited Participation session a prospective participant must first log onto the Sites Features by providing NxtGenTV with the prospective participant's user name and a valid, functional email address. NxtGenTV records the user name and email address supplied during log-on by each prospective participant in a Limited Participation session. NxtGenTV does not require that any participant in a Limited Participation session, other than the Host, be a registered member. NxtGenTV does not undertake to verify the validity or functionality of the email address provided by a prospective participant. However, all Account holders and participants are required to provide valid, functional email addresses, the products and services may not function correctly without them, and it is a violation of this TOS for an Account holder or participant to supply a non-functional, fake, or impersonated email address and user name. Each prospective participant's log-on information will be recorded by NxtGenTV.
Prospective non-Host participants either
(1) can be invited to participate in a particular Limited Participation session through an email initiated by the Host through NxtGenTV's system, or
(2) can be informed of the Host's email and scheduled session by means independent of NxtGenTV's system.
The prospective participant then must log onto NxtGenTV's system and query the NxtGenTV system by manually keying in the registered email address of the Host to determine whether that Account holder is the Host of a currently pending or scheduled session, and then can request participation in that Host's current or scheduled session. NxtGenTV forwards to the Host of a particular session the logged-on user name and email address of each prospective participant who has requested participation with reference to that Host's registered email address. The Host of that particular Limited Participation session then must affirmatively select which of the logged-on user names and email addresses are approved for participation in that Host's particular Limited Participation session and must transmit back to NxtGenTV the Host's affirmative approval of the selected user names and email addresses. Thus NxtGenTV will have identifiable Account registration information for the logged-on user name and email address of a non-Host participant only if, coincidentally, a non-Host participant also happens to be a registered Member and has used that identical user name and email address to register as a Member.
XIII. NxtGenTV Not Obliged to Verify User Names, Email Addresses or Identities
Because a user name and email address are used to route communications among computers, and because computers communicate with each other by coded network addresses, the combination of a user name and email address might, but does not necessarily, identify a particular person. NxtGenTV ordinarily does not and usually cannot verify or authenticate email addresses and does not undertake any obligation to you to do so. NxtGenTV does not and usually cannot verify or control the identity of the natural persons who have access to or control the particular computers that are identified by an IP address or email address supplied to NxtGenTV for computer-routing purposes and we do not undertake any obligation to you to do so.
It is the responsibility and risk of the Host to use whatever identification measures the Host thinks appropriate and prudent when the Host supplies its registered address for delivery to prospective participants and when the Host approves a particular user name and email address for participation in a Host's particular Limited Participation session. Similarly, it is the responsibility and risk of a prospective participant when using a Host's email address, and when supplying NxtGenTV with the prospective participant's email address and password for delivery to a Host, to use such measures as the prospective participant thinks appropriate and prudent to identify and verify whom it will be dealing with in a session, including without limitation the Host and other participants in the session.
XIV. Contents Of Host and Participant Communications Are Transitory in Limited Participation Sessions; No Archival Storage
During Limited Participation sessions, communications among the Host and other participants are transitorily resident within the automatic switching systems, computer memory, and any temporary on-line parallel or concurrent backup systems of NxtGenTV and our Internet Services Providers ("ISPs"). Each Limited Participation session is generally limited not to exceed ten consecutive days, and most will have much shorter duration.
Within Limited Participation sessions all transmission of communications is initiated or directed by the Host and other participants, not by NxtGenTV. Communication content is transmitted among the Host and other participants automatically based upon the Host's selection of participants. The transmission, routing, provision of connections, and any storage of content is done at the direction of the Host and other participants, and material is transmitted by automatic technical processes without selection or modification of the content by NxtGenTV.
NxtGenTV does not otherwise record, backup, or archive the contents of Host and participant communications during a Limited Participation session, except as is technically necessary for that particular Limited Participation session, and those contents then are dissipated from NxtGenTV's systems either during or upon termination of a particular Limited Participation session. No copy of Your Communications Content or Your Correspondents' Communication Content during Limited Participation sessions is maintained or stored on the NxtGenTV system or network in a manner that ordinarily would be accessible to anyone other that the Host and participants selected by the Host for a particular Limited Participation session.
After termination of a particular session no copy that has been maintained by NxtGenTV during a particular Limited Participation session remains ordinarily accessible to the Host or other participants for a longer period than is reasonably necessary for that Limited Participation session.
The Host and other participants are entirely responsible for any recordation, archiving, or other backup of their own content, and may do so only as permitted by applicable law. NxtGenTV explicitly disclaims any such recordation, archiving and backup except as is reasonably necessary to functionally maintain a Limited Participation session then in progress.
After completion of a particular Limited Participation session the only information that is retained by design at NxtGenTV with reference to that Limited Participation session is a record that the Host's session took place, which may include the time, and the user names, email addresses and IP addresses supplied by the Host, participants and prospective participants for that session.
NxtGenTV may monitor the content of Host and participant communications during Limited Participation sessions. The Host and participants bear sole responsibility, risk and liability for the content of their communications and for the identification and selection of recipients of their communications.
XV. NxtGenTV Meeting Rooms; Public Video, Text Chat Rooms and Billboards
NxtGenTV may provide public video, text chat rooms, billboards, special interest rooms, and other publicly available contents at its website ("NxtGenTV Meeting Rooms"), the content of which may be accessible by any member of the general public visiting the NxtGenTV website with minimal or no registration. NxtGenTV's Meeting Rooms enable visitors and prospective Members to engage in limited trials of NxtGenTV's systems. Visitors to the NxtGenTV website may be enabled to post information to some NxtGenTV Meeting Rooms. The content posted by visitors to the NxtGenTV Meeting Rooms will be transitorily resident within the automatic switching systems, computer memory and caches, and any temporary on-line parallel or concurrent backup systems, of NxtGenTV and its Internet service providers. Both the posting and accessing of content in NxtGenTV Meeting Rooms is done automatically at the direction of visitors and prospective Members and NxtGenTV does not undertake to select or modify such content, other than by deleting it from time to time. NxtGenTV does not archive or preserve content which is posted in NxtGenTV Meeting Rooms. Our policy is to take down material from NxtGenTV Meeting Rooms after display for not more than ten consecutive days, and often more frequently, after which such content dissipates from its systems. NxtGenTV reserves the right, at any time and for any reason whatsoever or for no reason: (i) to take down, restrict, or refuse to post any information in the NxtGenTV Meeting Rooms, or (ii) to make such Meeting Rooms available or unavailable.
XVI. License Granted By You To Us for Content Transmitted by You to Public Areas
When you communicate content to or within any NxtGenTV Meeting Room or any other area of the Sites Features which is intended to be accessible by the general public, then you shall be deemed to have granted to us an irrevocable, world-wide, no-royalty, no-fee license to publish, distribute, use, reproduce, modify, adapt, translate, publicly perform and publicly display (in whole or in part) in any manner, place, or medium whatsoever such content transmitted or posted to NxtGenTV Meeting Rooms. This license from you to us is fully sublicensable by us.
NxtGenTV does not pre-screen the content of transmissions and postings originated or transmitted by you or by any other user or visitor in NxtGenTV Meeting Rooms. We have no obligation to post, display, transmit, or retain any material whatsoever in any NxtGenTV Meeting Room or other publicly accessible area. We at our sole and unfettered discretion may limit access of anyone, refuse to post, or may remove or delete any matter, or may block or terminate access by any person, at any time for any reason or for no reason. We also may make available or unavailable any Meeting Room, public page, or other area that may be generally accessible to the public.
XVII. License Granted by Us To You for Use of Our Systems and Software
NxtGenTV grants you a temporary limited license to access and use NxtGenTV Meeting Rooms which then are being made available by us without registration by you as a Account holder; this license is non-transferable and non-sublicensable by you, is terminable at will by us without notice to you; and is subject to the terms of TOS. Generally your access to a Meeting Room may be automatically limited not to exceed ten minutes during any one log on by you. If you register an Account, and so long as you comply with the payment terms and other terms of this Agreement, or if you are granted access by a Host to a Limited Participation session, then you are granted by us a temporary limited license to use those portions of our system which we provide for that particular Limited Participation session. Your license as an Account holder is non-sublicensable and non-transferable by you, and is terminable at will by us at any time for any reason or for no reason.
You do not receive any license authorizing you to, and you shall not, assign, sublicense, distribute, redistribute, publish, compile, decompile, copy, modify, or reverse engineer, any content or technical means of the Sites Features, our systems, or our software; and this restriction applies to both public areas and limited participation areas.
XVIII. Content May Be Offensive
You recognize that NxtGenTV generally does not, and usually cannot, pre-screen, monitor, modify or control in real time the content of any communications or posting, either in Limited Participation areas or in publicly accessible areas. Therefore, you acknowledge that when you use any area of the Sites Features there is a risk that you could be exposed to salacious, obscene, pornographic, hateful, misleading, fraudulent or other objectionable materials posted or otherwise communicated by other Account holders, participants, users, or visitors. You agree to accept this risk. You agree that NxtGenTV shall have no responsibility or liability to you for any such exposure you may experience. NxtGenTV does not intentionally sponsor such offensive matter and you and all other users are required to agree not to engage in the conduct which is prohibited or restricted by this Agreement, but we do not, and ordinarily cannot, undertake to police such conduct by users.
XIX. Adult or Mature Content; No Access To Or Targeting of Children
There may be areas of the Sites Features which are specifically designated for "adult" or "mature" content. You agree that you shall not transmit, post or otherwise communicate "adult" or "mature" content outside of such designated areas by use of the Sites Features. You further agree that you shall not target children with, and shall not permit children to have access to, the areas designated as "adult" or "mature." If you are an adult and you object to such "adult or "mature" content you agree that you shall refrain from accessing such areas. Nothing in this section shall be construed as authorizing you to transmit, post, deliberately access, or otherwise communicate unlawful pornographic matter or hate matter by use of the Sites Features, and you shall not do so.
XX. Authority For Use of Your Content; No Expectation of Confidentiality
You represent and warrant to NxtGenTV that you have full authority to disclose and use any content you post through the Sites Features without violating the rights of any other party.
XXI. License Of Your User Information From You to Us
As used herein, the term "Your Content" means any communications, images, sounds and all material and information that you upload or transmit through the Sites Features, [including, without limitation, Your Communications Content]. You hereby grant to us and our licensors, including without limitation our respective successors and assigns, a non-exclusive, perpetual, irrevocable, sublicensable, transferable, worldwide, paid-up right to reproduce, fix, adapt, modify, translate, reformat, create derivative works from, manufacture, introduce into circulation, publish, distribute, sell, license, sublicense, transfer, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice Your Content as well as all modified and derivative works thereof, without compensation to you, for the purpose of providing the Services. You agree that you may not upload or otherwise transmit on or through the Sites Features any of Your Content that is subject to any third-party rights.
XXII. Prohibited and Restricted Actions
XXII.I. Unlawful Activities.
You agree that you shall not do any of the following in connection with your use of Sites Features or Your Content:
XXII.II. Improper, Illegal and Abusive Computer and System Functions.
You agree that you shall not:
XXIII. Restricted Commercial Activities
You agree that you shall not, without the prior express written consent of a duly authorized officer of NxtGenTV, use the Sites Features to do any of the following:
XXIV. Aiding, Abetting and Contributing to Unlawful Activity
You agree, in connection with your use of the Sites Features, that you shall not aid or abet any other person to engage in any activity which is unlawful, or which is constrained or restricted by this TOS; and you shall not contribute to any such misconduct of any other person.
XXV. NxtGenTV Copyrights
The Sites Features are protected by U.S. and international copyright laws. You may not modify, reproduce or distribute the content, design or layout of the Sites Features, or individual sections of the content, design or layout of the Site without NxtGenTV's express prior written permission. Copyright © NxtGenTV, LLC 2009. All rights reserved.
XXVI. NxtGenTV Trademarks
NxtGenTV and the NxtGenTV logo are trademarks/service marks of NxtGenTV. NxtGenTV and the NxtGenTV logo are trademarks/service marks of NxtGenTV. Unauthorized use of any NxtGenTV trademark, service mark or logo may be a violation of federal and state trademark laws.
XXVII. Notice of Claims of Copyright Infringement
If you are a copyright owner or agent thereof and believe that content posted on the Site by a NxtGenTV user infringes upon your copyright, please submit notice, pursuant to the Digital Millennium Copyright Act (17 U.S.C. § 512(c)) to our Copyright Agent with the following information:
XXVIII. DISCLAIMER OF WARRANTIES
XXIX. LIMITATIONS AND EXCLUSIONS OF DAMAGES
You agree to indemnify us ("NxtGenTV, its affiliates, suppliers and contractors" as defined in the sections which disclaim warranties and limit and exclude damages), and to hold us harmless, from any claim, cost, liability or demand or any third party, including reasonable attorneys fees, which arises or is alleged to arise from:
XXXI.I Entire Agreement.
This TOS, including any matter that is expressly incorporated in this TOS by reference, constitutes the entire agreement between you and NxtGenTV and it governs your use of the Sites Features. This TOS supersedes any prior negotiations and agreements between you and NxtGenTV. There are no oral terms to this TOS. This TOS can only be amended or altered in writing. Your purchase or use of particular services and products of NxtGenTV, or of third-party content or third-party software, may be governed by additional written terms and conditions specified when you purchase or access such particular services and products.
XXXII.II Choice of Law and Choice of Forum.
You agree that the laws of the State of California, United States of America, without regard to the principles of conflict of laws, will govern your use of Sites Features, these TOS and all matters relating to your access to, and/or use of, the Sites Features. You irrevocably submit to the exclusive jurisdiction of, and venue in, the state and federal courts seated in Los Angeles County, California, and the related appellate courts, in any related action
XXXII.III Limitation on Claims.
You and NxtGenTV agree that any claim or cause of action arising or alleged to arise out of, or related to, this TOS or the use of Sites Features, must be filed within one (1) year after such cause of action arose, or else such claim or cause of action shall be permanently barred. You and NxtGenTV agree that this limitation applies regardless of any statute or law to the contrary which might otherwise apply.
XXXII.IV Export Controls.
The Services, or some uses of them, may be subject to the export control laws of the United States. You agree that you shall not export, re-export, disclose, or transfer any of the Services, or any technical matter related to the Services, nor shall you use the Services, in violation of applicable export control laws and regulations.
XXXII.V Restriction of Rights Concerning Government Usage.
The Sites Features comprise Restricted Rights in accord with DFARS Section 227.7202 et seq. If you are using the Sites Features as a representative of the United States Department of Defense, or as a representative of any other governmental agency of any nation, state or locality, then you acknowledge that the Services, and any portion of them, are "Commercial Computer Software" (cf. DFARS Section 252.227-7014) and any documentation is "Commercial Computer Software Documentation", all of which were developed exclusively at private expense by NxtGenTV and its predecessors, 4560 Sherman Oaks Ave | Sherman Oaks, CA 91403. You do not receive any rights to reproduce or modify the Services or any associated software.
XXXII.VI Non-Transferability; No Sublicensing; No Right of Survivorship.
Your identity is an essential element of your registration and Account, the accuracy of which you are required to represent and warrant as a necessary condition of your use of the Sites Features. Among other reasons, the accuracy of your identity disclosures is material to our ability to protect ourselves and other users of the Sites Features from fraud and other abuses of our system and services. You cannot transfer or sub-license your registration, your Account, or your rights under this TOS. Upon your death any rights to your account terminate. Upon our receipt of a copy of a death certificate, or of other proof of death which is satisfactory to us in our sole discretion, your account can be terminated and your registration deleted by us.
XXXII.VII No ReSale, Re-Transmission or Commercial Use.
Except for communications in which you are an active participant using the Sites Features, in accord with the terms and conditions of this TOS, and except as may otherwise be expressly agreed in a separate writing signed by two officers of NxtGenTV, you agree that:
Except as is otherwise expressly stated in this TOS there shall be no third party beneficiary of this TOS.
XXXII.IX Waiver and Severability.
A failure of NxtGenTV to exercise a right or provision of this TOS shall not operate as a waiver of such right or provision. If a court of competent jurisdiction shall determine that any provision of this TOS, or of any expressly incorporated document, is invalid, then it is agreed that the Court shall endeavor to revise such provision to give it such effect as is legally valid; and to the extent that a provision is invalid that provision shall be severed and the remainder of this TOS enforced.
XXXII.X Rights and Remedies Cumulative.
All rights and remedies of NxtGenTV under this TOS or provided by law and equity shall be deemed cumulative and not exclusive of each other, and the exercise of one remedy shall not preclude the exercise of any other.
XXXII.XI Captions, Headings and Links.
Captions, headings and links in this TOS are for reference only and shall not be considered when construing this TOS.
XXXIIII.I Your Notices to Us.
Any notice which you are permitted or required to give to NxtGenTV under this TOS shall be in writing and shall be delivered by U.S. mail, certified, first class or express mail, and prepaid ; or shall be delivered by a nationally recognized commercial delivery service which provides delivery tracking (such as Federal Express or UPS) addressed to:
Attn: NxtGenTV Administration
4560 Sherman Oaks Ave
Sherman Oaks, CA 91403
XXXIII.II Our Notices to You; Your Email Address for Notices.
XXXIII. Injunctive Relief
You agree that any use of the Sites Features contrary to the terms of this TOS, as amended from time to time, or any sublicensing, transfer, copying or disclosure of technical matter related to the Sites Features is likely to cause irreparable harm to NxtGenTV, its members, affiliates, providers, and suppliers, as well as to authorized sublicensees and resellers of the Sites Features, for which pecuniary compensation alone would be insufficient. You agree that under such circumstances NxtGenTV, its members, affiliates suppliers, authorized sublicensees and resellers shall be entitled to temporary, preliminary and permanent injunctive and other equitable relief, without posting bond or security.