NETse7en Services Agreement and Software License

BEFORE YOU CLICK THE "I AGREE" BUTTON ON THE ORDER FORM, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT.

This Services Agreement and Software License (the "Agreement") is a legal agreement between NETse7en with offices at PO Box 5389, Wenatchee, WA 98801 ("NETse7en") and You ("CUSTOMER") regarding the use of NETse7en's services ("Services") AND NETse7en Hardware and Software acquired by Customer as indicated on the applicable order form ("Order").

ARTICLE 1SERVICE

1.1 Service.

Contingent upon Customer's valid subscription and good-standing with NETse7en, NETse7en shall provide the Service identified in the applicable Order to Customer. The provision of the Services requires the use of the NETse7en Hardware and NETse7en Software identified on the applicable Order. NETse7en shall perform maintenance services as reasonably necessary to maintain the operation of the Service. Notwithstanding the foregoing, NETse7en makes no guarantees as to the continuous availability of the Service or any component thereof.

1.2 Billing Service.

In the event that Customer has chosen to obtain the “Billing Services” from NETse7en, the following additional terms shall apply: (1) NETse7en shall provide any and all End Users (defined below) that access the Customer's NETse7en Hardware and NETse7en Software ("Customer's Port") and who have agreed to the applicable terms and conditions for use of Customer's Port access to the Internet; (2) NETse7en shall bill (and subject to its then current policies) collect the fees for such End User's access for the fee amounts as instructed by Customer from time to time; and (3) following retention of the Billing Fee indicated on the Customer's then current fee schedule for such billing service, remit any remaining amounts to Customer in accordance with this Agreement, or at its option offset such amounts from amounts owing by Customer to NETse7en. NETse7en shall pay or offset all such amounts received from such Customer's End Users within 30 days of its receipt by NETse7en. In the event an End User pays NETse7en by credit card and NETse7en is unable to receive such payment from the credit card company for any reason, including without limitation End User disputing the charge (the "Charge-back Event"), then (i) NETse7en shall be relieved of its payment obligations to Customer under Section 1.2, or (ii) NETse7en may invoice and obtain from Customer a full refund of amounts already paid by NETse7en to Customer. Upon the written request of Customer, NETse7en shall produce reasonable documentation of the Charge-back Event. It shall be Customer's sole responsibility to dispute the charge with the relevant credit card company. During the month of such service and for a maximum of 12 months thereafter, NETse7en shall keep all records online with regards to its transactions with Customers. Customer shall have the right to view such records online.

1.3 Customer Responsibilities.

Customer is responsible for all activities that occur under Customer's End User accounts. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer uses; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify NETse7en promptly of any such unauthorized use; and (iii) comply with all applicable local, state, federal, and foreign laws in using the Service. Customer shall be responsible for obtaining and maintaining all NETse7en Hardware and other communications equipment needed to access the Service, and for paying all third-party access charges incurred while using the Service. Customer will be responsible for, and assumes the risk of any problems resulting from the content, completeness, accuracy and consistency of all such data, materials and information supplied by Customer. Customer shall not use the Services for illegal purposes.

ARTICLE 2 SOFTWARE LICENSE

2.1 License Grant.

Customer acknowledges and agrees that certain proprietary software of NETse7en ("NETse7en Software") is embedded in the NETse7en Hardware purchased under an Order and that use of such NETse7en Software is subject to the following license. Subject to the terms and conditions of this Agreement, NETse7en grants to Customer an individual, personal, perpetual, non-sublicensable, non-exclusive and non-transferable license to use the NETse7en Software, in object code form only, and solely in conjunction with the NETse7en Hardware for the purposes of providing Internet access to End Users in connection with the Service. "End Users" means those persons who obtain access to the Internet for their own personal use and not for resale, and who agree to NETse7en's then-current terms of use.

2.2 Restrictions on License and Use.

Customer will not, and will not permit others to, whether directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the NETse7en Software (except to the extent that such activities may not be prohibited under applicable law); (ii) modify, translate, or create derivative works based on the NETse7en Software; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer rights to the NETse7en Software; (iv) use or otherwise exploit third party hardware or medium in using either the NETse7en Software or the Service; or (v) remove any proprietary notices or labels on the NETse7en Software.

2.3 Ownership.

Customer acknowledges that NETse7en retains exclusive ownership throughout the world of all intellectual property rights in the NETse7en Software, any portions or copies thereof, and all rights therein. Upon termination of this Agreement for any reason, Customer may retain a the NETse7en Hardware and NETse7en Software, and the license shall survive, but the Services will terminate.

2.4 Trade Names.

Neither party shall have the right to use the other's name, trademark or trade name without the prior written consent of the other party; provided however, nothing herein shall prevent NETse7en from using Customer's name as part of a customer list on its website or in connection with its other customer listings.

ARTICLE 3HARDWARE

3.1 Purchase.

Subject to the terms and conditions of this Agreement, Customer will purchase and NETse7en will sell the NETse7en Hardware identified on a mutually agreed upon Order. Following acceptance of an Order by NETse7en, Customer may not cancel or reschedule any Order without the prior written permission of NETse7en, provided in its sole discretion.

3.2 Shipping, Title and Risk of Loss.

NETse7en shall use commercially reasonable efforts to deliver the NETse7en Hardware by the date on the mutually agreed upon Order and will promptly inform Customer in the event of a delay in delivery. Customer may identify the carrier for shipping. Where no shipping instructions are specified, NETse7en may select the carrier on a commercially reasonable basis. NETse7en shall invoice Customer for the cost of such shipping, insurance and related costs. All NETse7en Hardware shipped pursuant to Orders shall be shipped FCA (Incoterms 2000) Supplier's facility (title and risk of loss to the NETse7en Hardware passes to Customer when NETse7en Hardware is delivered to the carrier at NETse7en's manufacturing facility).

3.3 Export/Import Requirements.

Customer will procure all import and export licenses and permits, pay all customs charges, and duty fees, and take all other actions required to accomplish the lawful import and export of the NETse7en Hardware. Where applicable, NETse7en shall be responsible for preparing (at NETse7en's cost) all documentation required for export. Customer warrants that it will comply in all respects with the export and re-export restrictions of law applicable to the Customer for each of the NETse7en Hardware purchased from the NETse7en hereunder.

3.4 Return.

For any return permitted under NETse7en's then-current return policy [insert link], Customer will notify Supplier and will also provide reasons for rejection in writing and NETse7en shall issue a Return Materials Authorization number ("RMA"). Customer shall not return a Product without first obtaining an RMA. Unless hardware is defective, Customer shall pay all costs associated with the transportation of the returned Products from Customer to NETse7en. Risk of loss or damage to a NETse7en Hardware returned to NETse7en shall revert to NETse7en upon receipt of the NETse7en Hardware at NETse7en's facilities.

ARTICLE 4 FEES AND PAYMENT

4.1 Fees.

Customer shall pay NETse7en the fees set forth in the mutually agreed upon Order for the Service designated therein and such other fees and amounts that may be invoiced in accordance with this Agreement by a payment method to be determined by NETse7en in its sole discretion (credit card, invoice, purchase order, prepayment or other payment method). NETse7en reserves the right to change the form of payment upon reasonable prior notice to Customer. With respect to materials shipped by NETse7en to Customer hereunder, Customer shall pay all applicable shipping charges. If for any reason Customer needs to reactivate Customer's subscription, Customer may be charged a reactivation fee. All fees owing hereunder shall be payable within thirty (30) days from date of NETse7en's invoice therefor. Past due amounts owing from Customer shall bear interest at the rate of the lesser of (1) 1% per month or (2) the maximum amount permitted under applicable law. Customer will reimburse NETse7en for all reasonable costs incurred (including reasonable attorney's fees) in collecting past due amounts owed by Customer.

4.2 Currency.

All payments made under this Agreement shall be in U.S. dollars, including without limitation those payments to be made by NETse7en to Customer.

4.3 Contact Information.

Customer agrees to provide NETse7en with accurate billing information and with truthful, accurate, and complete contact information, including Customer's legal name, company name, street address, e-mail address, and telephone number, and to update this information within thirty (30) days of any change to it. If the contact information Customer have provided is false or fraudulent, NETse7en reserves the right to terminate Customer's access to the Service immediately without any further obligation.

4.4 Taxes.

Fees are exclusive of any taxes and duties or other amounts, however designated, and Customer shall pay all applicable sales, use, personal property or other taxes, tariffs, duties, assessments, or governmental charges levied or imposed at any time by any governmental authority, including interests and penalties thereto, that is related to the Service (collectively “Taxes”), and exclusive of NETse7en's net income and corporate franchise taxes. In the event that NETse7en is required to pay any Taxes, Customer shall pay NETse7en the fees under Section 4.2 and the U.S. dollar equivalent of such Taxes levied upon NETse7en.

ARTICLE 5 TERM AND TERMINATION

5.1 Term.

This Agreement shall be effective from the Effective Date and shall continue to stay in effect until terminated under Section 5.2.

5.2 Termination.

NETse7en or Customer may at any time and for any reason terminate this Agreement effective upon 30 days prior written notice, with effect of such termination on the termination of the then-current billing cycle. In addition NETse7en may at its option either terminate or suspend this Agreement or Service thereunder effective upon five (5) days prior written notice in the event of a breach by Customer. Any termination as contemplated above shall not affect the obligations of Customer to pay NETse7en for Service provided or work performed prior to termination. Customer will pay in full for the Service up to and including the last day of the then-current billing cycle.

5.3 Effect of Termination.

Upon termination, Customer will immediately cease all use of the Service. The following provisions of this Service Agreement shall survive termination of this Agreement: Sections 4.1, 4.2, 4.4, 5.3, and Articles 2, 6 and 7. Termination is not an exclusive remedy and all other remedies will be available whether or not the license granted herein is terminated.

ARTICLE 6 REPRESENTATIONS AND WARRANTIES; DISCLAIMER; REMEDIES

6.1 Mutual Warranties.

Each party hereby represents and warrants to the other during the Term as follows: it has all necessary corporate power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the transactions contemplated hereby. This Agreement constitutes a legal, valid and binding obligation of the warranting party enforceable against the warranting party in accordance with its terms.

6.2 NETse7en Hardware.

NETse7en represents and warrants to Customer during the Term, and not to any End Users or third parties, that for a period of one (1) year from the delivery of the NETse7en Hardware to Customer, such NETse7en Hardware shall be free from material defects in materials and workmanship. If any NETse7en Hardware contains manufacturers' warranties, to the fullest extent permitted thereunder, NETse7en hereby assigns (to the extent possible under such warranties) such warranties to Customer. NETse7en Hardware not meeting the warranties will be, at NETse7en Hardware's option, (a) repaired, (b) replaced by NETse7en in accordance with the procedures set forth in Section 4.5 or, if after using all reasonable commercial efforts NETse7en is unable to do either of the foregoing, (c) refund the amount of purchase price paid by Customer. All NETse7en Hardware repaired or replaced under warranty shall be warranted for the remainder of the warranty period set out in this Section 6.1. Any warranty contained in this Agreement does not apply to defects resulting from misuse, accidental damage or operation outside of the ordinary use of the NETse7en Hardware and NETse7en Software unless such defects are directly or indirectly caused by NETse7en or NETse7en's authorized representative. The remedies set forth in this Section 6.2 are NETse7en's sole liability and Customer's sole remedy for any breach of warranty for the NETse7en Hardware sold by NETse7en to Customer.

6.3 Disclaimer of Warranties.

EXCEPT AS SET FORTH IN SECTION 6.1 and 6.2, NETSE7EN DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. CUSTOMER UNDERSTANDS AND AGREES THAT THE SERVICE AND NETSE7EN SOFTWARE AND NETSE7EN HARDWARE ARE PROVIDED “AS IS.” NETSE7EN MAKES NO WARRANTY THAT THE SERVICE (INCLUDING NETSE7EN SOFTWARE AND NETSE7EN HARDWARE) WILL MEET CUSTOMER'S REQUIREMENTS, OR THAT USE OF THE SERVICE (INCLUDING NETSE7EN SOFTWARE AND NETSE7EN HARDWARE) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DOES NETSE7EN MAKE ANY WARRANTY AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICE, NETSE7EN SOFTWARE OR NETSE7EN HARDWARE, THAT ANY DEFECTS IN THE SERVICE NETSE7EN SOFTWARE OR NETSE7EN HARDWARE WILL BE CORRECTED. FURTHER, NETSE7EN DOES NOT WARRANT THAT THE SERVICE, NETSE7EN SOFTWARE OR NETSE7EN HARDWARE OR THE NETSE7EN SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NETSE7EN ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT CUSTOMER'S HARDWARE, SOFTWARE, OR OTHER DELIVERABLES. NETSE7EN AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICE, NETSE7EN HARDWARE OR NETSE7EN SOFTWARE, INCLUDING ANY IMPLIED WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS. Because some jurisdictions do not permit the exclusion of implied warranties, portions of this section may not apply to Customer.

6.4 Exclusion and Limitation of Liability.

IN NO EVENT WILL NETSE7EN OR ITS SUPPLIERS BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOST PROFITS, USE OF USER INFORMATION, LOSS OF DATA, BUSINESS INTERRUPTION, OR OTHER INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES OF ANY NATURE ARISING FROM OR RELATING TO CUSTOMER'S USE OF THE SERVICE OR USE OF THE SERVICE THROUGH CUSTOMER'S ACCOUNT BY ANYONE ELSE, EVEN IF NETSE7EN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE WILL NETSE7EN'S TOTAL CUMULATIVE LIABILITY TO CUSTOMER AND ANYONE WHO USES THE NETSE7EN SERVICE THROUGH CUSTOMER'S ACCOUNT, FOR ANY AND ALL CLAIMS UNDER ANY THEORY OF LAW, EXCEED THE AGGREGATE AMOUNT CUSTOMER PAID TO NETSE7EN IN THE PRECEDING TWELVE (12) MONTHS. CUSTOMER UNDERSTANDS THAT THESE LIMITATIONS OF NETSE7EN'S AND NETSE7EN'S SUPPLIERS' LIABILITY ARE A FUNDAMENTAL PART OF THIS AGREEMENT. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to Customer, in which case NETse7en's liabilities shall be limited to the maximum extent allowed by law.

6.5 Indemnity.

CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS NETSE7EN FROM AND AGAINST ANY AND ALL CLAIMS, PROCEEDINGS, INJURIES, LIABILITIES, LOSSES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES), INCLUDING, BUT NOT LIMITED TO, CLAIMS ALLEGING NEGLIGENCE, COPYRIGHT INFRINGEMENT AND/OR TRADEMARK INFRINGEMENT AGAINST NETSE7EN OR THE NETSE7EN SERVICE, RELATING TO OR ARISING OUT OF CUSTOMER'S BREACH OF ANY TERM OF THIS AGREEMENT, CUSTOMER'S OR ITS END USEER'S MISUSE OF THE SERVICE, OR CUSTOMER'S UNAUTHORIZED MODIFICATION OR ALTERATION OF THE NETSE7EN HARDWARE OR NETSE7EN SOFTWARE.

ARTICLE 7 MISCELLANEOUS

7.1 Force Majeure.

Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for payment obligations) on account of strikes (other than strikes of a party's own employees), shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions (other than with respect to a party's own employees), earthquakes, material shortages or any other causes that are beyond the reasonable control of such party; provided, however, that the parties will use commercially reasonable efforts, including the implementation of business continuity measures, to mitigate the effects of such force majeure.

7.2 Independent Contractors.

The Parties hereto are independent contractors. Neither Party to this Agreement nor any of its employees, customers or agents, shall be deemed to be the representative, agent or employee of the other Party for any purpose whatsoever, nor shall any of them have the right or authority to assume or create an obligation of any kind or nature, express or implied, on behalf of the other, nor to accept service of any legal claims or notices addressed to or intended for the other.

7.3 Amendment; No Waiver.

This Agreement cannot be amended, changed, modified or supplemented orally, and no amendment, change, modification or supplement of this Agreement shall be recognized nor have any effect, unless the writing in which it is set forth is signed by both Parties, nor shall any waiver of any of the provisions of this Agreement be effective unless in writing and signed by the Party to be charged therewith. The failure of either Party to enforce, at any time, or for any period of time, any provision hereof or the failure of either Party to exercise any option herein shall not be construed as a waiver of such provision or option and shall in no way affect that Party's right to enforce such provision or exercise such option. No waiver of any provision hereof shall be deemed to be, or shall constitute, a waiver of any other provision, or with respect to any succeeding breach of the same provision.

7.4 Governing Law.

This Agreement will be governed by the laws of the State of Washington without regard to its conflicts of laws provisions. The state and federal courts within Chelan County, Washington will have exclusive jurisdiction over all disputes arising out of this Agreement.

7.5 Export Control.

Customer shall comply fully with all United States and other country's export laws and regulations and ensure that the Service, or products related thereto, are not directly or indirectly exported or re-exported to any country, person, entity or end user in violation of, or for any use prohibited by, such export laws and regulations.

7.6 Severability.

If any portion of this Agreement is held invalid by a court of competent jurisdiction, such portion shall be deemed to be of no force and effect and this Agreement shall be construed as if such portion had not been included herein, provided however, if the deletion of such provision materially impairs the commercial value of this Agreement to either Party, the Parties shall attempt to renegotiate such provision in good faith.

7.7 Entire Agreement.

This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior agreements, understandings and arrangements, oral or written, between the Parties with respect to the subject matter hereof. No agreement or representations, oral or otherwise, express or implied, with respect to the subject matter hereof have been made either Party which is not expressly set forth in this Agreement.

7.8 Assignment.

During the term of this Agreement, neither party shall have the right to assign this Agreement and the Service hereunder without the prior written consent of the other party, which shall not be unreasonably withheld. Any attempt to do so shall be void. Notwithstanding the foregoing, NETse7en may assign or otherwise transfer this Agreement to its subsidiary, affiliate or successor in the event of a change of control or to the purchaser of substantially all of its assets or stocks. This Agreement shall be binding upon the respective parties hereto and their respective legal successors and permitted assignees.

7.9 Headings.

The headings used in this Agreement are for convenience of reference only and shall not affect the meaning or construction of this Agreement.

7.10 Language.

The official language of this Agreement is English. All contract interpretations, notices and dispute resolutions shall be in English. Any attachments or amendments to this Agreement shall be in English. Translations of any of these documents shall not be construed as official or original versions of such documents.

If you have any questions about this Use Policy and Software License, please contact us at relations@netse7en.com