Service Terms 1. Netopia Service Netopia agrees to provide the E-Store/Business Web Site Service in accordance with the plan (the "Service Plan") selected by Merchant/Web site owner ("Merchant") during the registration process. 2. Payment and Invoicing 2.1 During the term of this Agreement, Merchant shall pay Netopia the then applicable charges for the E-Store/Business Web Site Service Plan into which Merchant has enrolled. Currently applicable charges for the E-Store/Business Web Site Service Plans are available at http://www.netopia.com. Payment shall be due in advance of each month for which theE-Store/Business Web Site Service is desired by Merchant. Merchant shall also be responsible for paying any and all additional fees and charges resulting from Merchant's use of the E-Store/Business Web Site Service. These fees may include but are not limited to fees incurred under Paragraphs 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/Business Web Site Service. Any such fees payable to Netopia shall be due to Netopia 30 days after they are incurred by Merchant. Netopia reserves the right to change the Service Plans offered or applicable charges and to institute new charges at any time, upon 30 days prior notice to Merchant. 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 Merchant'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 Merchant's bill and shall be due and payable. Merchant shall also be liable for all attorney and collection fees arising from Netopia's efforts to collect any unpaid balance of Merchant'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/Business Web Site Service is provided. Netopia shall provide the E-Store/Business Web Site Service in a commercially reasonable manner. 3.2 Monitoring of Content. Merchant recognizes that he or she is solely responsible for the content of any information Merchant makes available through the E-Store/Business 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 Merchant's Web site on the E-Store/Business Web site Service and may disclose any content or records concerning Merchant's account as necessary to satisfy any law, regulation, or other governmental request or to properly operate the E-Store/Business Web site Service and protect any of its Merchant's. Netopia reserves the right to block access to any site hosted by the E-Store/Business Web Site Service that contains any content that Netopia deems in its sole discretion to be unacceptable or undesirable. Merchant expressly agrees that Netopia shall not be liable to Merchant 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. Merchant understands that portions of the Internet contain materials that are unedited, sexually explicit and may be offensive to Merchant and that Merchant's access to such materials is at Merchant's own risk. Netopia has no responsibility for or control over such materials. 4. Merchant's Responsibilities and Rights 4.1 Merchant Information. Merchant shall, upon registration, provide Netopia with accurate, complete, and updated information including Merchant'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. Merchant 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 Merchant's right to use the E-Store/Business Web Site Service. 4.2 Authorized Users. Merchant warrants that he or she is not a minor. Merchant is responsible for ensuring the confidentiality of any and all passwords obtained from Netopia in connection with the E-Store/Business Web Site Service. Merchant shall also be responsible for ensuring compliance with this Agreement by third parties authorized by Merchant to use the E-Store/Business Web Site Service. In the event of a breach of password security, Merchant will remain liable for any unauthorized use of the E-Store/Business Web Site Service until Merchant notifies Netopia and Netopia receives such notice. 4.3 Fees and Expenses. Merchant shall be responsible for payment of all costs, fees and expenses assessed by third parties arising out of or relating to Merchant's use of the E-Store/Business 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 Merchant and InterNIC. 4.4 Use of Domain Names. Merchant is solely responsible for ensuring that any Internet domain name it uses in connection with the E-Store/Business 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 Merchant for a period of time, Merchant shall have no right to any refund or compensation from Netopia, and Merchant shall hold harmless Netopia from any resulting losses to Merchant or third parties. 4.5 Third-Party Software. Third-party software available through the E-Store/Business Web Site Service may be governed by separate end user licenses. By using the E-Store/Business 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. Merchant shall be solely responsible for all content Merchant makes available on or through the E-Store/Business Web Site Service. Merchant 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. Merchant 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. Merchant's resource utilization, including but not limited to storage space and bandwidth on the E-Store/Business Web Site Service shall remain within the allocations associated with Merchant's Service Plan. Merchant agrees that Netopia may enforce the allocations associated with Merchant'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 Merchant's Web site. Additional resource utilization may be available at an additional charge through a E-Store/Business Web site Web page provided for this purpose. Merchant agrees to download or remove within seven calendar days any file sent to Merchant 15 megabytes and greater in size. After seven calendar days Netopia reserves the right to delete any such file without liability to Merchant or any third party. 4.8 Impermissible E-mail Practices; Spamming. Merchant 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/Business 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. Merchant 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/Business 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, Merchant agrees to pay Netopia damages to compensate for the lost goodwill such a violation causes. Merchant agrees to pay E-Store/Business 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, Merchant agrees to pay Netopia $200 per day. Netopia at its sole discretion shall determine whether a violation was unintentional or willful. In addition, Merchant acknowledges that Netopia may terminate Merchant's E-Store/Business Web site Service immediately and without notice in the event of any violation of this provision, whether this violation was accidental, incidental or otherwise. Payment by Merchant under this provision shall not prevent Netopia from terminating Merchant's E-Store/Business Web Site Service immediately or from seeking to obtain other legal remedies against Merchant, including other damages or an injunction. 4.9 Code of Conduct. Merchant agrees not to use the E-Store/Business 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. Merchant further agrees not to use the Service in a manner that will disrupt third parties' use or enjoyment of any communications service or outlet. Merchant acknowledges that prohibited conduct includes, but is not limited to, use of the E-Store/Business Web Site Service to invade the privacy of third parties, impersonation of Netopia personnel or other Netopia Merchant's, 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. Merchant also agrees not to use the E-Store/Business Web Site Service to solicit Netopia Merchant's to patronize competing services, and not to violate or tamper with the security of any Netopia computer equipment or program. In addition, Merchant acknowledges that Netopia may terminate Merchant's E-Store/Business Web site Service immediately and without notice in the event of any violation of this provision, whether this violation was accidental, incidental or otherwise. 4.10 Use of Dial-up Accounts. Merchant acknowledges that any Netopia dial-up access account(s) obtained in connection with the E-Store/Business 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 Merchant's. 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. Merchant 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/Business 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. Merchant 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. Merchant may sell merchandise or services to other Netopia Merchant's and Internet users through the E-Store/Business Web site Service. Merchant acknowledges that all transactions between Merchant and any third parties including but not limited to purchase terms, payment terms, warranties, guaranties, maintenance and delivery, are solely between Merchant and relevant third parties. Netopia makes no warranties or representations whatsoever with regard to any goods or services provided by Merchant. Netopia shall not be a party to any transaction between Merchant and any third party, or be liable for any cost or damage a rising either directly or indirectly from any action or inaction of Merchant or third party. 6.2 N0 WARRANTIES EXCEPT AS EXPRESSED IN AGREEMENT. THE E-STORE/BUSINESS WEB SITE SERVICE IS PROVIDED ON AN "AS IS" BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NETOPIA DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE E-STORE/BUSINESS 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 OTHER THIRD PARTIES SHALL CREATE A WARRANTY; NOR SHALL MERCHANT 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/BUSINESS 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/BUSINESS 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 MERCHANT 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, MERCHANT AGREES TO DEFEND, INDEMNITY 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 MERCHANT'S USE OF THE E-STORE/BUSINESS WEB SITE SERVICE. 7. Term and Termination 7.1 Term. This Agreement will become effective on the date of Merchant 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, either party may terminate this Agreement by giving ten (10) days prior written notice thereof; provided, however, that this Agreement shall not terminate if the other party has cured the breach of which it has been notified prior to the expiration of the ten (10) days. Netopia may immediately terminate this Agreement without notice if Merchant violates any of the provisions in paragraphs 2 or 4 of this Agreement. 7.3 Either Merchant 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; Merchant's only right with respect to any dissatisfaction with any terms, rules, policies, guidelines, or practices of Netopia in operating the E-Store/Business Web Site Service, any change in the terms of the E-Store/Business Web Site Service, or any change in the amount or type of fees charged in connection with the E-Store/Business 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 Merchant access to the E-Store/Business Web Site Service, Merchant 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. Merchant is expressly prohibited from reselling the E-Store/Business 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 Netopia: Netopia, Inc. 6001 Shellmound St Emeryville, CA 94608 If to Merchant: Address supplied by Merchant 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). Merchant consents to personal jurisdiction in the federal and state courts sitting in Alameda County, California for any action arising out of or relating to Merchant's use of the E-Store/Business 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. Merchant 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 attorneys' fees and costs. 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 Merchant.