Terms of Service

This document was last updated on September 12, 2005

1. Service.
   1. Provision of Service: Nextphase Wireless Inc. will provide Client with the Internet access services described in Exhibit A to this Agreement. The scope, schedule and price of the Service are also set forth in Exhibit A.
   
   2. Service Equipment: As part of the Service, Nextphase Wireless Inc. will supply Client with the Service Equipment as described in Exhibit A (“Service Equipment"). Client acknowledges that the Nextphase Wireless Inc. owned Service Equipment is a means through which the Service is provided and may be upgraded or modified by Nextphase Wireless Inc. at its discretion, as it deems necessary during the term of this Agreement. Client agrees not to use the Service Equipment for any purpose other than to utilize the Service during the term of this contract. Nextphase Wireless Inc. shall be responsible for installing and maintaining the Service Equipment.
   3. Bandwidth: Nextphase Wireless Inc. will provide bandwidth as specified in Exhibit A as the maximum information rate. This bandwidth is measured in the transmission rate over the physical layer as specified in the seven-layer OSI model. The committed information shall not be less than one fourth of the maximum. Any overhead incurred by customer equipment, networks, a specific program or any protocol will be counted toward the total bandwidth.
   4. Electrical Service Provided by Client: Client shall provide local (rooftop or other) 110 volt power for Wireless modem.

2. Payment Terms
   1. Service Pricing: Service pricing will be based on a monthly service fee ("Monthly Service Fee") and the initial installation fees ("Activation Fees") as provided in Exhibit A. In addition to the foregoing charges, Client is obligated to pay any Federal, State or other government taxes imposed in connection with this Agreement.
   2. Initial Commitment: The Client commits to the Activation Fees and the Monthly Service Fees described in Exhibit A ("Initial Commitment") upon execution of this Agreement. The Activation Fees and the initial Monthly Service Fees, whether paid or payable, are non-refundable. Unless a prepayment agreement has been specified, the Client will be billed monthly in advance for each month of Service.
   3. Invoicing, Payment Terms and Credit Check: Before Nextphase Wireless Inc. installs Service Equipment and provides Service; Nextphase Wireless Inc. must receive 50% payment of the Activation Fee and the Monthly Service Fees (First & Last). The balance of 50% of the Activation Fee and the Monthly Service Fees (First & Last) shall be due upon installation.
   4. Late Payment: If payment is not received 21 days after the payment is due, NextPhase Wireless reserves the right to disconnect the service with 48 hour notice. A reactivation fee of 1.5% per month penalty shall apply to late payments. Nextphase Wireless Inc. will not be liable for any loss or damage to the client caused by such action. Disconnection of service due to non-payment does not automatically terminate the commitment term of the contract. Nextphase Wireless will invoice the client for the remainder of the contract.

3. Initial Service and Service Activation Date
   1. Initial Service: As part of the Service, Nextphase Wireless Inc. shall handle such matters as domain registration, IP addressing, and circuit ordering.
   2. Service Activation Date: The "Service Activation Date" means the day in which Internet access is made available to Client via the Service to the Client's site.

4. Faulty or Damaged Service Equipment
   1. Maintenance by Nextphase Wireless: Client shall provide Nextphase Wireless or its agents with reasonable access to the installation site during normal working hours, with reasonable notification, to perform addition, deletion or maintenance services on the Service Equipment that was provided by Nextphase Wireless. Nextphase Wireless shall repair faulty Service Equipment on site at Client's facilities or provide an equivalent pre-configured replacement. Nextphase Wireless's obligation to repair or replace Service Equipment hereunder at Nextphase Wireless's expense does not apply to any Service Equipment that has been damaged due to misuse or disaster occurring at Client's site as described In Section 4(b). Manufacturer warrantee will cover all equipment; any defect of equipment caused by Client misuse will not be covered under this contract.
   2. Damage For Which Client Is Responsible: Client acknowledges that it shall be responsible for any damage or loss to the Service Equipment caused by
      1. any misuse of the Service Equipment by Client or its agents, or
      2. any theft or disaster (including but not limited to fire, flood or earthquake) occurring at the installation site.

   3. Circuit Provider
      Nextphase Wireless Inc. will order the circuit and coordinate the installation with the Circuit Provider on behalf of the Client. The circuit(s) will be in Nextphase Wireless's name, except as otherwise agreed upon. This may or may apply to all customers if not circuit is need to provide the customer service.

   4. Service and Acceptable Use Policy
      Nextphase Wireless's acceptable use Policies and etiquette of the Service and other networks apply and may, in fact, limit use. Nextphase Wireless Inc. may terminate the Clients' Service for violation of such policies and etiquette (e.g. unsolicited advertising via broadcasted e-mail spamming). If Nextphase Wireless Inc. is informed by government authorities of inappropriate or illegal use by Client of the Service or other networks accessed through the Service, any government determination will be binding on the Client, and Nextphase Wireless may terminate Client's Service.

   5. Client Equipment and Network Security
      Nextphase Wireless Inc. is not responsible to the Client for the cost or expense of administrative, technical, emergency and support personnel at the Client's location necessary for activities relating to the Service or Service Equipment (except as set forth in Section 4(a)), or for providing and maintaining the Client Equipment. The Client shall be responsible for use access security and network access, such as control over which users use the Service. Nextphase Wireless Inc. provides no user access security with respect to any of its Clients' facilities or facilities of others connected to the Internet. Nextphase Wireless will reasonably assist in network security breach detection or identification, but shall not be liable for any inability, failure or mistake in doing so.

   6. Re-termination of Circuit
      Re-terminating the circuit refers to relocating the termination point of the Circuit Provider's dedicated leased line at the Client's premises should Service be provided by wired lines. Should the Client deem it necessary to re-terminate the circuit, the Client will be responsible for certain costs. and Circuit Provider Company fees. Nextphase Wireless Inc. is not responsible for Service disruptions caused by the re-termination, provided that Nextphase Wireless will make reasonable efforts to minimize Service disruptions.

   7. Performance
      The Client understands that Nextphase Wireless Inc. does not own or control other networks outside of the Service, nor is Nextphase Wireless responsible for performance (or nonperformance) within such networks or within non-Nextphase Wireless operated interconnection points between the Service and other networks. However, Nextphase Wireless Inc. will work with the Client to reasonably ensure that performance from the Client's site to the Service is maximized.

   8. Duration and Termination
      1. Duration: Unless terminated earlier as provided elsewhere in this Agreement, Nextphase Wireless Inc. will continue the Service for as long as the Client continues to pay for Service up through the Initial Commitment as described in Exhibit A ("Initial Commitment"). In the event the Service continues past the Initial Commitment, except as the parties may otherwise agree in Exhibit A, it shall automatically extend into a renewal Term (“Extended Term”) equal in length to the original Initial Commitment, with either party having the right to terminate the Extended Term with thirty (30) days written notice prior to the end of the Initial Commitment. Unless otherwise specified in Exhibit A, during any such Extended Term, Nextphase Wireless Inc. will bill the Client monthly in advance according to then current Nextphase Wireless Inc. service rates at the time the Extended Term becomes effective.
      2. Voluntary Termination: Should the Client terminate the connection to Nextphase Wireless's network before the completion of the Initial Commitment for any reason other than material breach of this Agreement by Nextphase Wireless Inc. or because a material change on the terms of this Agreement per Section 10(d), Nextphase Wireless Inc. will invoice client for 50%of the monthly rate for the remainder of the contract.
      3. For Technical Inability to Provide Wireless Service: Should line of sight or any other technical issues preclude Wireless service delivery to Client, Nextphase Wireless Inc. may, with 30-days notice, terminate this agreement by providing written notice of such issues to Client. Nextphase Wireless Inc. will make best effort to provide alternative services for client.
      4. For Breach: Either party may terminate this Agreement if the other party is in material breach of any term of this Agreement and fails to remedy such breach within thirty (30) days after written notice of such breach. Without limiting the generality of the foregoing, failure to make any payment to Nextphase Wireless Inc. when due is a material breach of this Agreement by Client.
      5. Regulatory Developments: If at any time during the term of this Agreement any Federal, State or local regulatory or governmental agency declares the Service "regulated" and as a result the charges for the Service are materially affected or the terms under which the Service is offered are materially affected, either party may terminate this Agreement upon (30) days prior written notice to the other party.
      6. Effect of Termination: Upon any termination of this Agreement Nextphase Wireless Inc. shall disconnect the Service and terminate the circuit from the Circuit Provider, provided, however, that if the circuit from the Circuit Provider is in Client's name, Client shall be responsible for contacting the Circuit Provider and disconnecting its circuits. Within ten (10) days after any termination of this Agreement, Client shall either return all of the Service Equipment, owned by Nextphase Wireless Inc., to Nextphase Wireless Inc. or allow Nextphase Wireless’s agents to enter installation site(s) and remove all of the Nextphase Wireless Inc. owned Service Equipment.

   9. Warranties
      Neither Nextphase Wireless Inc. nor its sub-agents warrant any connection to, transmission over, nor results of, any network connection or facilities provided (or failed to be provided) under this Agreement. The Client is responsible for assessing its own computer and transmission network needs and the results to be obtained there from. Nextphase Wireless Inc. MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABLILITY, FITNESS FOR PARTICULAR PURPOSE, AND NONINFRINGEMENT. Use of any information obtained through the Service is at the Client's risk. Nextphase Wireless Inc. specifically denies any responsibility for the accuracy or quality of information obtained through the Service. Nextphase Wireless Inc. does not warrant that the operation of the Service or Service Equipment will be uninterrupted or error-free.

   10. Indemnity
       The Client agrees to indemnify and hold Nextphase Wireless Inc. harmless against any claim, actions or demands arising out of any content or software disseminated by the Client and/or its users in any way connected to the Service, and out of Nextphase Wireless's registration and maintenance of Client's selected domain name.

   11. Limitation of Liability
       Neither party shall be liable to the other for any loss, damage, liability, claim or expense arising out of or in relation to the Agreement, other than for payment of fees due under this Agreement and for indemnification under Section 12, however caused, whether grounded in Agreement, tort (including negligence) or theory of strict liability. EXCEPT FOR SECTION 12, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE SERVICES AND SERVICE EQUIPMENT. Nextphase Wireless’s ENTIRE LIABILITY AND THE CUSTOMER'S EXCLUSIVE REMEDY SHALL BE AT Nextphase Wireless’s OPTION, EITHER RETURN OF THE SETUP FEES AND THE LAST TWELVE (12) MONTHLY SERVICE FEES PAID, OR REPLACEMENT OF CONNECTION SERVICES. In any case, Nextphase Wireless's entire liability under or arising out of this Agreement shall be limited to the amount the Client paid for the Service that gave rise to the liability.

   12. No Assignment
       The Client shall not sell, transfer, or assign this Agreement without the prior written consent of Nextphase Wireless Inc. Any act in derogation of the forgoing shall be null and void, and the Client will remain obligated under this Agreement. This Agreement shall benefit and be binding upon the parties to this Agreement and their respective permitted successors and assigns.

   13. Waiver
       The waiver or failure of either party to exercise in any respect any right provided for in this Agreement shall not be deemed a waiver of any further right under this Agreement.

   14. Severability
       If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effort.

   15. Choice of Law
       This Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles, and the parties consent to personal jurisdiction of and venue in the state courts located in and serving Orange County, California.

   16. Survival
       Section 5, Sections 10 through 19 and all payment obligation that accrue hereunder shall survive any termination of this Agreement.

   17. Entire Agreement
       This Agreement represents the complete Agreement and understanding of the parties with respect to the subject matter herein, and supersedes any other Agreement or understanding, written or oral. This Agreement may be modified only through a written instrument signed by both parties.