Netopia Service Terms 1. Netopia Service A list of available service plans for the E-Store/Web site Service is available at http://www.netopia.com. Netopia agrees to provide the E-Store/Web site Service in accordance with the plan (the "Service Plan") selected by Customer during the registration process. 2. Payment and Invoicing 2.1 During the term of this Agreement, Customer shall pay Netopia the then applicable charges for the E-Store/Web site Service Plan into which Customer has enrolled. Currently applicable charges for the E-Store/Web site Service Plans are available at http://www.netopia.com. Payment shall be due in advance of each month for which the E-Store/Web site Service is desired by Customer. Customer shall also be responsible for paying any and all additional fees and charges resulting from Customers use of the E-Store/Web site Service. These fees may include but are not limited to fees incurred under Paragraphs 3.2, 4.3 and 4.7 of this Agreement, fees payable to Netopia or a third party for registering and obtaining domain names, and any telecommunications charges required to obtain and maintain a connection to the E-Store/Web site Service. Any such fees payable to Netopia shall be due to Netopia 30 days after they are incurred by Customer. Netopia reserves the right to change the Plans offered or applicable charges and to institute new charges at any time, upon 30 days prior notice to Customer. 2.2 Payments may be made by authorized credit card and shall be due upon the first of each month. If Netopia does not receive the full amount of Customer's account balance within thirty (30) days of the due date, an additional one and one-half percent (1.5%) or highest amount allowed by law per month late charge will be added to Customer's bill and shall be due and payable. Customer shall also be liable for all attorney and collection fees arising from E-Store/Web Site's efforts to collect any unpaid balance of Customer's account(s). 3. Netopia's Responsibilities and Rights 3.1 Provision and Control of Service. Netopia has the exclusive right to control and direct the means, manner, and method by which the E-Store/Web site Service is provided. Netopia shall provide the E-Store/Web site Service in a commercially reasonable manner. 3.2 Support. Netopia may provide technical support to Customer at an additional fee to be separately agreed upon. 3.3 Monitoring of Content. Customer recognizes that he or she is solely responsible for the content of any information Customer makes available through the E-Store/Web site Service and that Netopia will not monitor the Service to examine the content passing through it. Netopia, at its sole discretion, may elect to electronically monitor Customer's Web site on the E-Store/Web site Service and may disclose any content or records concerning Customer's account as necessary to satisfy any law, regulation, or other governmental request or to properly operate the E-Store/Web site Service and protect any of its Customers. Netopia reserves the right to block access to any site hosted by the E-Store/Web site Service that contains any content that Netopia deems in its sole discretion to be unacceptable or undesirable. Customer expressly agrees that Netopia shall not be liable to Customer for any action Netopia takes to remove or restrict access to such content, nor for any action taken to restrict access to material posted in violation of any law, regulation or rights of a third party, including but not limited to, rights under the copyright law and prohibitions on libel, slander and invasion of privacy. Customer understands that portions of the Internet contain materials that are unedited, sexually explicit and may be offensive to customer and that customer's access to such materials is at customer's own risk. Netopia has no responsibility for or control over such materials. 4. Customer's Responsibilities and Rights 4.1 Customer Information. Customer shall, upon registration, provide Netopia with accurate, complete, and updated information including Customer's legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date) for purposes of identification, billing and marketing. Customer agrees to notify Netopia within thirty (30) days of any changes in this information. Failure to comply fully with this provision may result in immediate suspension or termination of Customer's right to use the E-Store/Web site Service. 4.2 Authorized Users. Customer warrants that he or she is not a minor. Customer is responsible for ensuring the confidentiality of any and all passwords obtained from Netopia in connection with the E-Store/Web site Service. Customer shall also be responsible for ensuring compliance with this Agreement by third parties authorized by Customer to use the E-Store/Web site Service. In the event of a breach of password security, Customer will remain liable for any unauthorized use of the E-Store/Web site Service until Customer notifies Netopia and Netopia receives such notice. 4.3 Fees and Expenses. Customer shall be responsible for payment of all costs, fees and expenses assessed by third parties arising out of or relating to Customer's use of the E-Store/Web site Service. Such costs may include but are not limited to the fees required to register and maintain domain names, which fees are governed by a separate agreement between Customer and InterNIC. 4.4 Use of Domain Names. Customer is solely responsible for ensuring that any Internet domain name it uses in connection with the E-Store/Web site Service complies with applicable trademark laws and with the InterNIC's policies concerning domain name usage. In the event any such domain name is placed on "hold" by InterNIC or is otherwise unavailable to Customer for a period of time, Customer shall have no right to any refund or compensation from Netopia, and Customer shall hold harmless Netopia from any resulting losses to Customer or third parties. 4.5 Third-Party Software. Third-party software available through the E-Store/Web site Service may be governed by separate end user licenses. By using the E-Store/Web site Service and the third-party software, you agree to be bound by the terms of such end user licenses regarding the applicable third-party software. 4.6 Content On Service. Customer shall be solely responsible for all content Customer makes available on or through the E-Store/Web site Service. Customer warrants that any such content: (i) will not infringe and will not contain any content that infringes on or violates any copyright, U.S. patent or any other third-party right; and (ii) will not contain any content which violates any applicable law, rule or regulation. Customer acknowledges that prohibited content includes, but is not limited to, content that is abusive, profane, libelous, slanderous, threatening or otherwise harassing, and that Netopia may remove such prohibited content at any time without notice. 4.7 Exceeding Contractual Limits. Customer's resource utilization, including but not limited to storage space and bandwidth on the E-Store/Web site Service shall remain within the allocations associated with Customer's Service Plan. A list of available service plans for the E-Store/Web site Service is available at http://www.netopia.com. Customer agrees that Netopia may enforce the allocations associated with Customer's account and acknowledges that enforcement may include, but is not limited to, a refusal to store incoming mail and/or permit further download traffic on Customer's Web site. Additional resource utilization may be available at an additional charge through a E-Store/Web site Web page provided for this purpose. Customer agrees to download or remove within seven calendar days any file sent to Customer 15 megabytes and greater in size. After seven calendar days Netopia reserves the right to delete any such file without liability to customer or any third party. 4.8 Impermissible E-mail Practices. Customer acknowledges that he/she is expressly prohibited from utilizing any Netopia dial-up access, Netopia's equipment, any Netopia electronic mail address, any Netopia hosted Web site address, or the E-Store/Web site Service in connection with the sending of the same or substantially similar unsolicited electronic mail messages (i.e. "spamming"), whether commercial or not, to a large number of recipients. Customer specifically agrees that he/she will not utilize any Netopia dial-up access, Netopia's equipment, any Netopia electronic mail address, any Netopia hosted Web site address, or the E-Store/Web site Service in connection with the transmission of the same or substantially similar unsolicited message to 50 or more recipients or 15 or more newsgroups in a single day. For each day upon which this provision is violated, Customer agrees to pay Netopia damages to compensate for the lost goodwill such a violation causes. Customer agrees to pay E-Store/Web site $10 per day for an unintentional violation of this provision, but where warranted, such as in the case of an accidental transmission, Netopia may waive all or part of the applicable charge. In cases of willful violations of this provision, Customer agrees to pay Netopia $200 per day. Netopia at its sole discretion shall determine whether a violation was unintentional or willful. Payment by Customer under this provision shall not prevent Netopia from terminating customer's E-Store/Web site Service immediately or from seeking to obtain other legal remedies against Customer, including other damages or an injunction. 4.9 Code of Conduct. Customer agrees not to use the E-Store/Web site Service, any Netopia dial-up access, or any Netopia equipment in a manner that is prohibited by any law or regulation or to facilitate the violation of any law or regulation. Customer further agrees not to use the Service in a manner that will disrupt third parties' use or enjoyment of any communications service or outlet. Customer acknowledges that prohibited conduct includes, but is not limited to, use of the E-Store/Web site Service to invade the privacy of third parties, impersonation of Netopia personnel or other Netopia customers, transmitting via e-mail, USENET or chat service abusive, profane, libelous, slanderous, threatening or otherwise harassing material and posting material in any newsgroup that is off-topic according to the charter or other public statement of the newsgroup. Customer also agrees not to use the E-Store/Web site Service to solicit Netopia customers to patronize competing services, and not to violate or tamper with the security of any Netopia computer equipment or program. 4.10 Use of Dial-up Accounts. Customer acknowledges that any Netopia dial-up access account(s) obtained in connection with the E-Store/Web site Service are intended for periodic, active use only. Automated electronic or mechanical processes employed to maintain a constant connection such as use of an auto-dialer, persistent checking of e-mail or "pinging" the host are expressly prohibited. A single dial-up access account may only be accessed by a single user, using a single modem. Netopia will allocate system resources to provide the best possible service to all Customers. Netopia reserves the right to limit, restrict or prioritize access to system resources, including CPU time, memory and disk space. 5. Confidentiality and Proprietary Rights 5.1 Confidentiality. Customer and Netopia acknowledge that: (1) the other party may be the owner of valuable trade secrets, and other confidential information, (2) in the performance of the E-Store/Web site Service, both parties may receive or become aware of such information as well as other confidential information concerning the other party's finances, methods of operation and other data (collectively referred to as "Confidential Information"), and (3) unauthorized disclosure of any of this information (collectively referred to as "Confidential Information") could irreparably damage the owner of such Confidential Information. 5.2 Non-Disclosure. Prior to disclosure of any Confidential Information by one party to another, the supplying party shall identify the information supplied as "Confidential Information." In no event shall Confidential Information include that which (1) is already lawfully known to or independently developed by the receiving party; (2) is in the public domain through no fault of the receiving party; (3) is lawfully obtained from a third party without restrictions; or (4) is required to be disclosed by law, regulation or governmental order. Both parties agree that, except as directed by the other party, required by law, or provided in this paragraph, neither party will at any time during or after the term of this Agreement and for a period of three (3) years after any such termination disclose any Confidential Information to any person or entity, or permit any person or entity to examine and/or make copies of any reports or any documents prepared by the other party or that come into the party's possession or under the party's control that relate to Confidential Information, and that upon termination of this Agreement, both parties will destroy or return to the other all materials that contain or relate to the other party's Confidential Information. 5.3 Injunctive Relief. Both parties acknowledge that unauthorized disclosure of any Confidential Information by the other party may give rise to irreparable injury to the owner of such information, inadequately compensable in damages. Accordingly, either party may seek to enjoin against the breach or threatened breach of such disclosures, in addition to any other legal remedies which may be available. 6. Representations and Limitations 6.1 Representations/Warranties. Customer understands that except for information, goods or services clearly identified as being supplied by Netopia, neither Netopia nor any of its affiliates operates or controls any information, goods or services on the Internet in any way and that, except for such Netopia identified information, services or goods, all merchandise, information, and services offered or made available or accessible on the Internet generally are offered or made available or accessible by third parties who are not affiliated with Netopia or its affiliates. Netopia makes no warranties or representations whatsoever with regard to such third parties or the services and goods available through them. Customer may sell merchandise or services to other Netopia customers and Internet users through the E-Store/Web site Service. Customer acknowledges that all transactions between Customer and any third parties including but not limited to purchase terms, payment terms, warranties, guaranties, maintenance and delivery, are solely between Customer and relevant third parties. Netopia makes no warranties or representations whatsoever with regard to any goods or services provided by Customer. Netopia shall not be a party to any transaction between Customer and any third party, or be liable for any cost or damage a rising either directly or indirectly from any action or inaction of Customer or third party. 6.2 No Warranties Except As Expressed In Agreement. THE E-STORE/Web SITE SERVICE IS PROVIDED ON AN "AS IS" BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, E-STORE/WEB SITE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE E-STORE/WEB SITE SERVICE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY NETOPIA, ITS EMPLOYEES, LICENSORS OR THE LIKE SHALL CREATE A WARRANTY; NOR SHALL CUSTOMER RELY ON ANY SUCH INFORMATION OR ADVICE. 6.3 Limitation on Liability. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL NETOPIA OR ANYONE ELSE INVOLVED IN ADMINISTERING OR DISTRIBUTING THE E-STORE/WEB SITE SERVICE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL OR EXEMPLARY DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE E-STORE/WEB SITE SERVICE, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR LOSSES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO NETOPIA'S RECORDS, PROGRAMS, OR SERVICES, BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, NETOPIA'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. IN NO EVENT SHALL NETOPIA BE LIABLE TO CUSTOMER FOR MORE THAN THE AGGREGATE AMOUNTS PAID TO NETOPIA UNDER THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS. 6.4 Indemnity. Upon written or electronic request of Netopia, Customer agrees to defend, indemnify and hold harmless Netopia, its officers, directors, employees, agents and licensees, from any claims and expenses, including reasonable attorneys fees, arising out of or relating to Customer's use of the E-Store/Web site Service. 7. Term and Termination 7.1 Term. This Agreement will become effective on the date of customer registration, and will remain in effect until terminated by either party with 30 days advance notification to the other party. 7.2 Termination. In the event of any material breach of this Agreement by Netopia, Customer may terminate this Agreement by giving ten (10) days prior written notice thereof; provided, however, that this Agreement shall not terminate at the end of said ten (10) days notice period if Netopia has cured the breach of which it has been notified prior to the expiration of said ten (10) days. Netopia may immediately terminate this Agreement without notice if Customer violates any of the provisions in paragraphs 2 or 4 of this Agreement. 7.3 Either Customer or Netopia may terminate this Agreement at any time for any reason or for no reason upon thirty (30) days written notice to the other party; Customer's only right with respect to any dissatisfaction with any terms, rules, policies, guidelines, or practices of Netopia in operating the E-Store/Web site Service, any change in the terms of the E-Store/Web site Service, or any change in the amount or type of fees charged in connection with the E-Store/Web site Service, is to terminate this Agreement by delivering notice to Netopia, effective the day Netopia receives notification of termination or any future date specified which is acceptable to Netopia. If Netopia denies Customer access to the E-Store/Web site Service, Customer shall have no right (i) to obtain any credit(s) otherwise due and such credit(s) will be forfeited, (ii) to access through Netopia any material stored on the Internet or (iii) to access any third-party providers of services, merchandise, or information on the Internet through Netopia, and Netopia shall have no responsibility to notify such third-party providers nor shall Netopia have any responsibility for any damages that result from the lack of such notification. 7.4 Surviving Sections. Sections 5 ("Confidentiality and Proprietary Rights"), 6 ("Representations and Limitations"), 7 ("Term and Termination") and 8 ("General") shall survive the termination of this Agreement. 8. General 8.1 Resale and Assignment. Customer is expressly prohibited from reselling the E-Store/Web site Service. Neither party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, and any such attempted assignment shall be void. This Agreement shall be binding upon the parties' respective successors and permitted assigns. 8.2 Notices. Any notices or communication under this Agreement shall be in writing and shall be deemed delivered to the party receiving such communication at the address specified below (1) on the delivery date if delivered personally to the party; (2) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, whether or not received, if sent by US mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile or (5) on the delivery date if transmitted by confirmed email. If to E-Store/Web site: Netopia, Inc. 6001 Shellmound Street Emeryville, CA 94608 If to Customer: Address supplied by Customer during sign-up process. 8.3 Governing Law and Forum Selection; Attorney's Fees. Interpretation and enforcement of this Agreement shall be governed by the laws of the State of California (excluding its choice of law rules). Customer consents to personal jurisdiction in the federal and state courts sitting in Alameda County, California for any action arising out of or relating to Customer's use of the E-Store/Web site Service or otherwise arising out of or relating to this agreement. The federal and state courts sitting in Alameda County, California shall have exclusive jurisdiction and venue over all such actions. Customer expressly and knowingly waives any defense that jurisdiction and/or venue are not proper in such courts. In any such action the prevailing party shall be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable, and reasonable attorneys' fees. 8.4 Waiver. A failure of either party to exercise any right provided for herein shall not be deemed to be a waiver of any right hereunder. 8.5 Severability. In the event any one or more of the provisions of this Agreement or of any attachment is invalid or otherwise unenforceable, the enforceability of remaining provisions shall be unimpaired. 8.6 Force Majeure. Neither party shall be liable in any amount for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency beyond the reasonable control of such party including without limitation fire, flood, war or act of God. 8.7 Party Status. Neither party to this Agreement is an agent, representative, or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. 8.8 Entire Agreement & Modifications. This Agreement sets forth the entire agreement of the parties and supersedes any and all prior agreements with respect to the subject matter hereof. Netopia may modify the provisions of the Service Plans or this Agreement upon 30 days written or electronic notice to Customer.