Netopia is pleased that you have chosen Netopia's eSite Builder service. This agreement (the "Agreement") sets forth the terms and conditions of our relationship. After you have read the Agreement carefully, if you agree, you should indicate your acceptance of all terms and conditions of the Agreement by clicking "I Agree" at the end of the Agreement.

1. Netopia Service

Netopia will provide the hardware and hosting support necessary for you and/or your Company (referred to herein as "you") to provide an Internet Web site using the Netopia eSite Builder product. A list of available service plans for the eSite Builder Service (the "Service") is available at http://www.netopia.com. Netopia agrees to provide the Service in accordance with the plan (the "Service Plan") selected by you during the registration process.

2. Payment and Invoicing

2.1 During the term of this Agreement, you shall pay Netopia the then applicable charges for the eSite Builder Service Plan into which you have enrolled. Currently applicable charges for the Service Plans are available at http://www.netopia.com. Payment shall be due in advance of each month for which the Service is desired by you. You shall also be responsible for paying any and all additional fees and charges resulting from your use of the 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 Service. Any such fees payable to Netopia shall be due to Netopia 30 days after they are incurred by you. 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 you.

2.2 Payments shall be made by monthly charge to your authorized credit card. If your credit card is dishonored for any reason, an additional one and one-half percent (1.5%) or highest amount allowed by law per month late charge will be added to your bill and shall be immediately due and payable. You shall also be liable for all attorney and collection fees arising from Netopia's efforts to collect any unpaid balance of your 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 eSite Builder Service is provided. Netopia shall provide the Service in a commercially reasonable manner.

3.2 Support. Netopia may provide technical support to you at an additional fee to be separately agreed upon.

3.3 Monitoring of Content. You recognize that you are solely responsible for the content of any information you make available through the eSite Builder 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 your Web site on the Service and may disclose any content or records concerning your account as necessary to satisfy any law, regulation, or other governmental request or to properly operate the Service and protect any of its Customers. Netopia reserves the right to block access to any site hosted by the Service that contains any content that Netopia deems in its sole discretion to be unacceptable or undesirable. You expressly agree that Netopia shall not be liable to you 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. You understand that portions of the Internet contain materials that are unedited, sexually explicit and may be offensive to you and that your access to such materials is at your own risk. Netopia has no responsibility for or control over such materials.

4. Your Responsibilities and Rights

4.1 Your Information. You shall, upon registration, provide Netopia with accurate, complete, and updated information including your 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. You agree 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 your right to use the eSite Builder Service.

4.2 Authorized Users. You warrants that you are not a minor. You are responsible for ensuring the confidentiality of any and all passwords obtained from Netopia in connection with the ESite Builder Service. You shall also be responsible for ensuring compliance with this Agreement by third parties authorized by you to use the Service. In the event of a breach of password security, you will remain liable for any unauthorized use of the Service until you notify Netopia and Netopia receives such notice.

4.3 Fees and Expenses. You shall be responsible for payment of all costs, fees and expenses assessed by third parties arising out of or relating to your use of the ESite Builder 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 you and the entity with which you have registered the domain name.

4.4 Use of Domain Names. You are solely responsible for ensuring that any Internet domain name you use in connection with the ESite Builder Service complies with applicable trademark laws. In the event any such domain name is placed on "hold" by a domain registrar or is otherwise unavailable to you for a period of time, you shall have no right to any refund or compensation from Netopia, and you shall hold harmless Netopia from any resulting losses to you or third parties.

4.5 Third-Party Software. Third-party software available through the ESite Builder Service may be governed by separate end user licenses. By using the 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. You shall be solely responsible for all content you make available on or through the ESite Builder Service. You warrant 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. You acknowledge 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. Your resource utilization, including but not limited to storage space and bandwidth on the ESite Builder Service shall remain within the allocations associated with your Service Plan. A list of available service plans for the ESite Builder Service is available at http://www.netopia.com. You agree that Netopia may enforce the allocations associated with Your 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 your Web site. Additional resource utilization may be available at an additional charge through a ESite Builder Web page provided for this purpose. You agree to download or remove within seven calendar days any file sent to you that is 10 megabytes and greater in size. After seven calendar days Netopia reserves the right to delete any such file without liability to you or any third party.

4.8 Impermissible E-mail Practices. You acknowledge that you are expressly prohibited from utilizing Netopia's equipment, any Netopia electronic mail address, any Netopia hosted Web site address, or the ESite Builder 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. You specifically agree that you will not Netopia's equipment, any Netopia electronic mail address, any Netopia hosted Web site address, or the ESite Builder 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, you agree to pay Netopia damages to compensate for the lost goodwill such a violation causes. You agree to pay $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, you agree to pay Netopia $200 per day. Netopia at its sole discretion shall determine whether a violation was unintentional or willful. Payment by you under this provision shall not prevent Netopia from terminating your Service immediately or from seeking to obtain other legal remedies against you, including other damages or an injunction.

4.9 Code of Conduct. You agree not to use the ESite Builder Service, 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. You further agree not to use the Service in a manner that will disrupt third parties' use or enjoyment of any communications service or outlet. You acknowledge that prohibited conduct includes, but is not limited to, use of the ESite Builder 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. You also agree not to use the ESite Builder 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.

5. Confidentiality and Proprietary Rights

5.1 Confidentiality. You 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 ESite Builder 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. You understand 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. You acknowledge that all transactions between you and any third parties including but not limited to purchase terms, payment terms, warranties, guaranties, maintenance and delivery, are solely between you and relevant third parties. Netopia makes no warranties or representations whatsoever with regard to any goods or services provided by you. Netopia shall not be a party to any transaction between you and any third party, or be liable for any cost or damage a rising either directly or indirectly from any action or inaction of you or third party.

6.2 No Warranties Except As Expressed In Agreement. THE ESITE BUILDER 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 ESITE BUILDER 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 ESITE BUILDER 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 ESITE BUILDER 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, You agree 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 your use of the ESite Builder 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, you 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 you violate any of the provisions in paragraphs 2 or 4 of this Agreement.

7.3 Either you 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; your only right with respect to any dissatisfaction with any terms, rules, policies, guidelines, or practices of Netopia in operating the ESite Builder Service, any change in the terms of the Service, or any change in the amount or type of fees charged in connection with the 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 you access to the ESite Builder Service, you 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 Assignment. 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 ESite Builder:

Netopia, Inc.

6001 Shellmound Street

Emeryville, CA 94608

If to you:

Address supplied by you during sign-up process or as subsequently updated.

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). You consent to personal jurisdiction in the federal and state courts sitting in Alameda County, California for any action arising out of or relating to your use of the ESite Builder 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. You expressly and knowingly waive 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 you.