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OlyPen's Terms of Service Agreement

OlyPen's standard PPP accounts are for you only. You must be physically at your computer while it is connected to OlyPen and do not leave your computer on the net to allow others to remotely access your PC, or to have a constant connection. Leaving your computer connected for more than 24 hours means you are violating this policy. Please refrain from leaving your computer connected while not using your Internet connection. We ask that you consider our peak times (between 6pm and 10pm) as a time that everyone wants to spend some time using our service. Please be considerate of others waiting in line for a connection.

You are only allowed one login session at a time. Our software will automatically disconnect all connections except for the first if it finds more than one at a time or if you are logged on for more than 24 hours in one session. You cannot share your account information and password with anyone else.

Four types of software can be downloaded from the Internet.

Trialware (it only works for a limited time)
Shareware (You must purchase it after evaluation)
Public Domain/Freeware (Free but subject to some restrictions)
Warez (stolen software)

Uploading warez to OlyPen will result in your OlyPen account being closed. Adding links to warez sites on your personal web pages on OlyPen will result in your personal web page privileges being terminated.

Commercial music is copyrighted and we consider digital copies to be another form of warez. Don't do it on OlyPen! The same applies to digital video movies.

No Offensive Behavior

The Internet enables the free flow of ideas and information. If you don't like someone's ideas, don't send them nasty email or attack them in chat rooms anywhere on the Internet. While you may think you are anonymous, the system administrators can identify you. Complaints about your offensive behavior can result in your OlyPen account being closed.

Spamming

Spamming has two forms:

Sending unwanted email and posting inappropriate advertising to Internet newsgroups. The Internet community has a very effective punishment. Everyone sends you and us email, totally filling our mailboxes. And if you are selling via the Internet, don't fall for the mass–emailer's claims that they have email lists of your target customers. They will only Spam in your name and include your email address. Spamming will result in your OlyPen account being closed. You could also be subject to penalty under Federal regulation:

By US Code Title 47, Sec.227(a)(2)(B), a computer/modem/printer meets the definition of a telephone fax machine. By Sec.227(b)(1)(C), it is unlawful to send any unsolicited advertisement to such equipment. By Sec.227(b)(3)(C), a violation of the aforementioned Section is punishable by action to recover actual monetary loss, or 4500, whichever is greater, for each violation.

Doing business with a personal account

Our PPP accounts are priced for personal use. If you also want to use it for business, please talk to us. We have many different business programs. Many of our small business accounts are the same cost as our personal accounts. One of our goals is to help small businesses on the Peninsula and we are easy to do business with.

Common sense

Our rules are not cast in stone and they will be changed as needed. You should use common sense.

Legalese

Here are the rules that govern use of the OlyPen. By virtue of having a OlyPen account, you agree to these terms of service and are bound by them. If you do not agree with the terms of service, please contact our Customer Support Department at 683-1456 to cancel your account.

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OlyPen Inc. Terms of Service

Effective November 29, 1999

1. The OlyPen service as operated by OlyPen Inc. is a computer, interactive information, communication and transaction service allowing access to the Internet, bulletin boards, private networks and other communications outlets. The OlyPen service is available to an authorized member through a personal membership account (Membership); it is accessible through a personal computer, or other access device and a communications connection (e.g. modem, telephone line).

2. CAREFULLY READ the terms of this agreement which governs your use of the OlyPen service. OlyPen may modify this agreement at any time and in any manner. Any modification is effective immediately upon either a posting on the OlyPen Home Page (/olypen/tos.htm), electronic mail, or conventional mail. If any modification to this agreement is unacceptable to you, you may immediately terminate your membership as provided in Section 18 below. Your continued use of the OlyPen online service following notice of any modification to this agreement shall be conclusively deemed an acceptance of all such modification(s).

3. OlyPen grants to you ("Member") a non-exclusive, non-transferable right to access, use and display the OlyPen service on any machine(s) of which you are the primary user. Member may not, however, maintain access to the Service on more than one modem at any given time. Member must also be USING the computer and not leave computer connected to OlyPen when not sitting in front of the computer. You must be actively doing one of the following:

Actively browsing the web.

Downloading/Uploading a file(s).

Actively Sending/Receiving Email

Actively reading Newsgroups.

Actively chatting on IRC.

Actively playing online games

Member is not allowed to run any kind of server or service, such as but not limited to; a mail server, an IRC fserv, a ftp server or others. Maintaining a connection for the sole purpose of allowing your mail program check messages every few minutes is strictly prohibited.

OlyPen service is provided on an AS IS, AS AVAILABLE basis WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY OlyPen, ITS EMPLOYEES, LICENSORS OF THE LIKE, SHALL CREATE A WARRANTY; NOR SHALL YOU RELY ON ANY SUCH INFORMATION OR ADVICE.

4. You understand that except for information products or services clearly identified as being supplied by OlyPen, neither OlyPen, nor any of its affiliates, operates or controls any information, products or services accessible through the OlyPen Service in any way and that, except for such OlyPen identified information, services or products, all merchandise, information and services offered or made available or accessible through the Service are offered or made available or accessible by third parties who are not affiliated with OlyPen or its affiliates. YOU EXPRESSLY AGREE that use of the OlyPen Service is at your SOLE RISK and YOU AGREE that any information, service or product accessible through the Service is WITHOUT WARRANTIES OF ANY KIND BY OlyPen AND ITS AFFILIATES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

5. Member may order and purchase merchandise or services from other Members and users of other communications outlets including the Internet. Member acknowledges that all transactions concerning third party (Seller) merchandise or services, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between Seller and Member. OlyPen makes no warranties or representations whatsoever with regard to any goods or services provided by Seller. OlyPen shall not be a party to a transaction between Member and Seller, or be liable for any cost or damage arising either directly or indirectly from any action or inaction of Seller or Member.

6. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL OlyPen, OR ANYONE ELSE INVOLVED IN CREATING, PRODUCING OR DISTRIBUTING THE OlyPen SERVICE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE OlyPen SERVICE including but not limited to reliance on any information obtained on the OlyPen Service; or that result from mistakes, omissions, interruptions, deletion of files or e-mail, 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 OlyPen's records, programs or services. YOU HEREBY ACKNOWLEDGE that this PROVISION SHALL APPLY WHETHER OR NOT OlyPen IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND that this PROVISION SHALL APPLY TO ALL CONTENT, MERCHANDISE OR SERVICES AVAILABLE THROUGH THE OlyPen SERVICE.

7. Member is responsible for all charges (e.g., telephone) associated with connecting to the OlyPen Service through an available access number. Member is responsible for obtaining or providing all telephone access lines, telephone and computer equipment (including modem), or other access device, necessary to access the OlyPen Service.

8. Member certifies to OlyPen that he/she is not a minor. (A minor's parent or legal guardian may authorize a minor to use his/her account(s) under supervision by the parent or guardian). For purposes of identification, billing and marketing, Member agrees to provide OlyPen with accurate, complete, and updated information required by the registration to the OlyPen Service (Member Registration Data), including Member's legal name, address, telephone number(s), and applicable payment data (e.g., credit card number and expiration date). Member agrees to notify OlyPen within thirty (30) days of any changes in Member Registration Data. Failure to comply fully with this provision may result in immediate suspension or termination of your right to use the OlyPen Service.

9. Accounts/Charges/Payment.

(a) This Agreement applies to all accounts, sub-accounts, alternative account names associated with Member's principal account. Each Member is responsible for the use of his/her/its account(s) under any name on that account by any person, and for ensuring full compliance with this Agreement by all users of his/her/its account(s). OlyPen Service account may not be transferred without prior written approval from OlyPen and is subject to any limits established by OlyPen.

(b) Member is responsible for maintaining the confidentiality of his/her/its passwords. Member is responsible for all activities and charges resulting from use of Member's principal account with the OlyPen Service. Member agrees to pay all monthly membership fees, connect time charges, surcharges, applicable taxes and other charges incurred by Member and/or his/her/its designated users. In the event of a breach of security, Member will remain liable for any unauthorized use of the OlyPen Service until Member notifies OlyPen by calling (360) 683-1456 (customer service).

(c) Current rates for using the OlyPen Service may be obtained by calling (360) 683-1456 or through OlyPen's Home Page at "http://www.olypen.com". OlyPen reserves the right to increase fees, surcharges, monthly membership fees or to institute new fees at any time upon thirty (30) days prior notice. OlyPen may reduce these fees at any time without notice to Member. In the event that a Member's account is terminated or canceled, on-line time credited to Member's account is not convertible to cash or other form of credit. Member is liable for ALL account charges until member notifies OlyPen to terminate users account. If OlyPen does not receive the full amount of Member's OlyPen Service account balance within thirty days (30) days of the invoice date or billing date, the lesser of an additional 1.5%, or the highest percentage allowed by law, of the outstanding balance will be added to Member's bill as a late charge each month and shall be due and payable. Member shall also be liable for all attorney and collection fees arising from OlyPen's efforts to collect any unpaid balance of Member's account(s).

10. YOU UNDERSTAND that information available to you through the OlyPen Service may include MATERIALS THAT ARE UNEDITED, SEXUALLY EXPLICIT OR OFFENSIVE TO YOU AND THAT YOUR ACCESS TO SUCH MATERIALS IS AT YOUR OWN RISK. OlyPen HAS NO RESPONSIBILITY FOR OR CONTROL OVER SUCH MATERIALS.

11. Member recognizes that he or she is solely responsible for the content of any information Member makes available through the Service and that OlyPen will not monitor the Service to examine the content passing through it. Member agrees that if OlyPen is made aware of content that OlyPen deems in its sole discretion to be unacceptable, undesirable, offensive, indecent, obscene, excessively violent or otherwise objectionable, OlyPen has the right, but not the obligation, to remove or deny access to such content. Member expressly agrees that OlyPen shall not be liable to Member for any action OlyPen takes to remove or restrict access to such material, 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. Member recognizes that OlyPen's actions with respect to all such material may include restriction, suspension or termination of Member's access privileges and/or deletion of the objectionable material.

12. Material accessible to Member through the OlyPen Service may be copyrighted. Except as expressly permitted by the copyright holder of the material, neither Member nor Member's designated users may reproduce, redistribute, retransmit, publish or otherwise transfer, or commercially exploit, any material which they access or receive through the Service.

13. Member expressly agrees not to use the OlyPen Service in a manner that is prohibited by any law or regulation or to facilitate the violation of any law or regulation. Member further agrees not to use the Service in a manner that will disrupt third parties' use or enjoyment of the OlyPen Service or other communications services and outlets. Member acknowledges that prohibited conduct includes, but is not limited to, use of the Service to invade the privacy of third parties, impersonation of OlyPen personnel, transmitting via e-mail, USENET, chat service or the Member's personal web page or site, abusive, profane, libelous, slanderous, threatening or otherwise harassing material and posting material in any USENET or newsgroup that is off-topic according to the charter or other public statement of the USENET or newsgroup. Member also agrees not to use the Service to solicit other members to patronize competing services, not to violate or tamper with the security of the OlyPen Service or attempt to utilize another member's account name or persona.

14. Member acknowledges that he/she/it is expressly prohibited from utilizing the OlyPen Service, OlyPen's equipment or any OlyPen electronic mail address in connection with the sending of the same or substantially similar unsolicited electronic mail message, whether commercial or not, to a large number of recipients. This prohibition extends to the sending of unsolicited mass mailings from another service which in any way implicates the use of the OlyPen Service, OlyPen's equipment or any OlyPen electronic mail address.

A message is unsolicited if it is posted in violation of a USENET or newsgroup charter and/or if it is sent to a recipient who has not requested or invited the message. For purposes of this provision, merely making one's e-mail address accessible to the public shall not constitute a request or invitation to receive messages.

Member specifically agrees that he/she/it will not utilize the OlyPen Service, OlyPen's equipment or any OlyPen electronic mail address in connection with the transmission of the same or substantially similar unsolicited message to 50 or more recipients or 15 or more USENETs or newsgroups in a single day. For each day upon which this provision is violated, Member agrees to pay OlyPen damages to compensate for the lost goodwill such a violation causes. Member agrees to pay OlyPen $10 per day for an unintentional violation of this provision, but where warranted, such as in the case of an accidental transmission, OlyPen may waive all or part of the applicable charge. In cases of willful violations of this provision, Member agrees to pay OlyPen $500 per day. OlyPen at its sole discretion shall determine whether a violation was unintentional or willful. Payment by member under this provision shall not prevent OlyPen from seeking to obtain other legal remedies against member, including other damages or an injunction.

15. Member acknowledges that OlyPen shall not maintain more than 5 MB of electronic mail storage for member and that Member is responsible for ensuring that the level of electronic mail storage remains below this 5 MB limit. Member expressly agrees that OlyPen shall not be liable to Member or parties interacting with Member for any damages resulting from action OlyPen takes to enforce this provision.

16. Member agrees that any personal web page or site Member publishes in connection with the OlyPen Service is intended for personal use. While other uses (e.g. commercial) are not prohibited, they may draw sufficient third party visits ("hits") to the page or site so as to impose a burden on the Service by reducing available bandwidth. To ensure that all Members can use and enjoy the Service, Member agrees that OlyPen is entitled to suspend or terminate access to any Member's web page or site if OlyPen determines that the page or site has, on any single day, received download traffic of twenty five megabytes (25,000K) or more. Member expressly agrees that OlyPen shall not be liable to Member or parties interacting with Member for any damages resulting from action OlyPen takes to enforce this provision.

17. Member acknowledges that the OlyPen Service is intended for periodic, active use of electronic mail, Usenet newsgroups, file transfers via ftp, Internet relay chat, interactive games and browsing of the world wide web. Member agrees not to use to the OlyPen Service to operate server programs, including, but not limited to mail servers, IRC servers, ftp servers or web servers. Member further agrees not to use the OlyPen Service on a standby or inactive basis in order to maintain a connection. 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. Member agrees that OlyPen may terminate member's connection following thirty (30) minutes of inactivity as determined by OlyPen. OlyPen will allocate system resources to provide the best possible service to all members. OlyPen reserves the right to limit, restrict or prioritize access to system resources, including cpu time, memory and disk space.

18. Member recognizes that this Agreement continues only for so long as the parties' mutually agree to continue it. Either Member or OlyPen may terminate the Agreement and Member's Membership at any time for any reason or no reason. OlyPen may also restrict, suspend or terminate, without notice, Member's access to and use of the OlyPen Service upon any breach of this Agreement. In the event of any termination for breach of this Agreement, Member shall not establish a new membership with OlyPen for one year from the date of termination. Member's only right with respect to any dissatisfaction with any terms, rules, policies, guidelines, or practices of OlyPen in operating the OlyPen Service, any change in the content of the OlyPen Service, or any change in the amount or type of fees charged in connection with the OlyPen Service, is to terminate Membership by delivering notice to OlyPen, effective the day OlyPen receives notification of termination or any future date specified which is acceptable to OlyPen. Upon termination of this Agreement, Member shall have no right (a) to obtain any credit(s) otherwise due to Member, and such credit(s) will be forfeited, (b) to access through OlyPen any materials stored on the Internet or © to access any third-party providers of services, merchandise or information on the Internet through OlyPen, and OlyPen shall have no responsibility to notify such third-party providers nor shall OlyPen have any responsibility for any damages that result from the lack of such notification.

19. Upon request of OlyPen, Member agrees to defend, indemnify and hold harmless OlyPen, its officers, directors, employees, agents and licensees, from any claims and expenses, including reasonable attorneys fees, arising out of or relating to Member's use of the OlyPen Service.

20 Interpretation and enforcement of this agreement shall be governed by the laws of the state of Washington (excluding its choice of law rules). Member consents to personal jurisdiction in the federal and state courts of Clallam County, Washington for any action arising out of or relating to member's use of the OlyPen Service. The federal and state courts of Clallam County, Washington shall have exclusive jurisdiction over all such actions. 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 attorney's fees.

21. This Agreement constitutes the entire agreement between you and OlyPen with respect to the OlyPen Service and supersedes all prior agreements between you and OlyPen. OlyPen's failure to enforce any provision of this agreement shall not be construed as a waiver of any provision or right. In the event that a portion of this Agreement is held unenforceable, the unenforceable portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of the provisions shall remain in full force and effect.

revised 11/99

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