PowerOne Terms of Service (Updated 10/21/2003)

Introduction

The PowerOne Internet Services [PowerOne] Terms of Service are set forth below and also include the Acceptable Use Policy as well as the Disclosure and Privacy Policy [together referred to as the “Documents”] which together detail the mutual rights and obligations between the PowerOne Internet customer [“you or your”] and PowerOne, its officers, agents, employees, contractors, vendors and affiliates [“PowerOne Affiliated Parties”].

By using the “Service” to access or place materials on the Internet, you agree to be bound by the terms and conditions of all of these Documents, and as such should take the time to understand them completely. These agreements are effective from your acceptance thereof, which is indicated by your initial and/or continued use of the Service. If you do not agree to these terms, you should not use this Service. Please read all “Documents” carefully, and contact us if you have any questions.
PowerOne shall have the right to modify this Agreement at any time in any manner. Any modification shall be effective upon notice as provided under Section 1.6. Your continued use of the “Service” shall be deemed acceptance of all modifications.

1. Service Agreement

1.1. The content, organization, graphics, design, compilation and other matters related to the PowerOne Site [“the Site”] are protected under applicable copyrights, trademarks and other proprietary rights. The copying, redistribution, use or publication by you of any such materials or any part of the Site, except as allowed under Section 1.4, is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Site or the Service.

1.2. PowerOne Communications and PowerOne Internet are the registered trademarks of PowerOne Communications, LLC. Other product and company names mentioned on the Site may be trademarks of those respective owners.

1.3. The viewing, printing or downloading of any content, graphic, form or document from the Site grants you only a limited, nonexclusive license for use solely by you for your own personal use and not for republication, distribution, assignment, sublicense, sale, or preparation of derivative works.

1.4. PowerOne provides access to information, via the Internet, of all kinds relating to a wide variety of subjects on virtually any topic imaginable. Some of this material may be offensive, misleading, or controversial in nature. You might find some of this material offensive or inappropriate for you or for any minors who may be accessing the Internet through your account. Third party sites are not controlled by PowerOne and you understand, acknowledge, and accept that PowerOne is not responsible for the content, accuracy, effectiveness, or any other matter relating to content of any such site. Links found on or through the PowerOne service does not imply any endorsement, association, or approval of the site by PowerOne.
Please use good judgment when accessing the Internet, and supervise minors who may be using your account. For more information on this topic, please see our Acceptable Use Policy.

1.5 PowerOne is continually updating and improving its Service as well as upgrading equipment to meet evolving technological standards used by the industry. These changes may occasionally cause degraded or interrupted services. PowerOne will make every attempt to communicate planned outages or interruptions through our notification process.

1.6. PowerOne may provide notice to you by the following methods: Electronic mail (e-mail) addressed to your e-mail account; general posting to PowerOne’ Internet web site at www.power1.com; or by U.S. Mail or courier service at the address you provided PowerOne when you registered for the Service. All notices or other communications to you shall be deemed effective on the first (1st) calendar day following the date of electronic mailing or posting or on the fourth (4th) calendar day following the date of first-class mailing or deposit with a commercial courier service. These are the only means of official communication recognized for the purpose of actively communicating with you regarding your Service.

1.7. As a PowerOne customer, you are responsible for all activities that occur in relation to your account. PowerOne provides you with a limited, non-exclusive license to user names and other specific account and network information related to the PowerOne Internet architecture. The responsibility for the use of those Services and any consequences of the use or abuse of those Services is yours and yours alone, whether this use was intentional or unintentional. Misuse of any equipment, Internet access or Services provided by PowerOne can result in the termination of some or all services at the sole discretion of PowerOne. PowerOne is not required to provide Service to anyone for any reason, and reserves the right to terminate Service at any time.

1.8. You are responsible for the security of all Services provided by PowerOne. Because PowerOne holds you responsible for the activity on your account, you will also be held responsible for actions on your account performed by others who have acquired your passwords or access to your systems with or without your knowledge.

1.9. With respect to each electronic mail address assigned to you, PowerOne reserves the right to deny delivery of any new e-mail transmissions until your electronic mail address information storage is reduced to below the maximum capacity. Refer to www.power1.com for product detail on e-mail storage.

1.10. In order to maintain an account with PowerOne, you must be 18 years of age or older. By accepting this agreement, you certify that you meet this minimum age requirement. Minors are permitted to use PowerOne Services with the express permission of a registered adult. The actions of that minor while using the account are the sole responsibility of the adult to whom the account is registered.

2. Financial Responsibility

2.1. You agree to provide PowerOne with accurate and complete billing information including your legal name, address, and telephone number. All changes to this information must be reported to PowerOne within 30 days of the change.

2.2. You agree to pay PowerOne all fees and charges for the Service including all applicable start-up fees, monthly or yearly usage fees (or other rate plan selected), early termination charges, if applicable, or software purchases. Setup fees are non-refundable. PowerOne will issue pro rata refunds for monthly fees paid in advance only if such refunds are in excess of $20.00 and subject to any termination charges.

2.3. You agree to pay all sales and use taxes, duties, or levies which are required by law as well as all attorney and collection fees arising from efforts to collect any unpaid balance on your account. PowerOne shall have the right to bill and collect any applicable taxes where required by law.

2.4. If you make your payment by check, you agree to pay monthly charges within 30 days after the month in which the charges are incurred. Late payment charges will apply to monthly charges that are paid later than 30 days. A service charge will be assessed to your account for each check that is returned to PowerOne for insufficient funds.

2.5. You must contact the PowerOne Customer Service Department at (352) 253-2200 within 60 days of the invoice or transaction date of any charge if you believe PowerOne has made a billing error. Refunds, credits or adjustments will not be given for any charges which are more than 60 days old.

2.6. You are responsible for all financial transactions made between your account and third parties using PowerOne Internet Services, knowingly or unknowingly. Please keep your password confidential, and insure you know of all activity that takes place on your account. Use caution when providing personal information while connected to the Internet, as PowerOne can not protect you from potential fraud or charges occurring through third party vendors with whom you may be in contact with through your Internet Service.

2.7. ACCESS TO THE SERVICE WILL BE PROVIDED VIA A LOCAL MODEM POOL NUMBER. INTERNET ACCESS IS OFFERED BY POWERONE SUBJECT TO THE FOLLOWING LIMITATIONS: ACCESS DIALUP NUMBERS MAY NOT BE AVAILABLE IN ALL AREAS. IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE IF USE OF A PARTICULAR POWERONE DIALUP NUMBER WILL CAUSE YOU TO INCUR LONG-DISTANCE, TOLL OR OTHER CHARGES. PowerOne IS NOT RESPONSIBLE FOR ANY LONG-DISTANCE OR TOLL CHARGES INCURRED BY YOU THROUGH YOUR USE OF THE SERVICE. YOU ARE SOLELY RESPONSIBLE FOR ALL TELECOMMUNICATIONS CHARGES INCLUDING LOCAL AND LONG-DISTANCE TELEPHONE CHARGES FOR CONNECTION TO THE SERVICE BY YOU AND BY THOSE WHO ACCESS THE SERVICE THROUGH YOUR ACCOUNT.

3. TERMINATION OF AGREEMENT

3.1. You may change or cancel your account by the following means only: first-class registered or certified mail, return receipt requested, addressed to PowerOne, Account Termination, P.O. Box 428, Tavares, Florida 32778.

3.2. Subject to payment of any applicable early termination charges, you shall have the right to terminate this Agreement at any time with or without cause upon notice to PowerOne as described above. Charges to Your account will stop accruing the day of receipt of notice of cancellation by PowerOne. PowerOne will issue pro rata fee refunds for monthly fees paid in advance only if such refunds are in excess of $20.00 and subject to any termination fees. In the event you terminate Service prior to the expiration of the term of Service you originally ordered, you shall be required to pay an early termination charge. The early termination charge will be an amount equal to the applicable charge for Service as if you had initially ordered the Service at the most recently expired term offered for Service. Any refund due you will be adjusted to reflect the higher service charge rate applicable to such shorter term.

3.3. PowerOne may terminate or suspend service for any delinquent account. In the case of suspension, standard charges for the Service shall continue to accrue until the account is cancelled by you as described in Section 3.1. Reactivation fees will apply if your Service has been terminated or suspended. A service charge will be assessed to your account for each check that is returned to PowerOne for insufficient funds.

3.4. PowerOne may immediately terminate or suspend service at any time for a violation by you of our Acceptable Use Policy. In addition, PowerOne may remove or refuse material posted by you if we believe, in our sole discretion that it infringes on another’s property rights or if we believe the material is inappropriate.

4. Limitation of Liability and Indemnification

4.1. If you are dissatisfied with the Service or any of its terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy against PowerOne or the PowerOne Affiliated Parties is to terminate this Agreement and discontinue using the Service by canceling the account by following the procedures described in this Agreement.

4.2. ALL INFORMATION YOU RECEIVE FROM OR THROUGH THE SERVICE IS PROVIDED “AS-IS,” AS AVAILABLE,” AND ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED (INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING OR USAGE OF TRADE). THE INFORMATION AND SERVICE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. POWERONE AND POWERONE AFFILIATED PARTIES HAVE NO LIABILITY WHATSOEVER FOR YOUR USE OF THE SERVICE, INABILITY TO USE THE SERVICE OR YOUR RELIANCE ON OR USE OF INFORMATION FROM THE SERVICE OR THROUGH THE SERVICE THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION OR ANY FAILURE OF PERFORMANCE. IN PARTICULAR, BUT NOT AS A LIMITATION, POWERONE AND ITS AFFILIATED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE, WHETHER BASED ON BREACH OF CONTACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE NEGATION OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN POWERONE AND YOU. THE SERVICE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS. YOU AGREE TO COMMENCE ANY CAUSE OF ACTION YOU MAY HAVE WITH RESPECT TO THE SERVICE WITHIN ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES.

4.3. ALL RESPONSIBILITY OR LIABILITY FOR ANY DAMAGES CAUSED BY VIRUSES CONTAINED WITHIN ANY ELECTRONIC FILE YOU OBTAIN FROM THE SERVICE IS DISCLAIMED. POWERONE’S MAXIMUM LIABILITY TO YOU UNDER ALL CIRCUMSTANCES RELATING TO OUR PROVISION OF THE SERVICE WILL BE EQUAL TO THE FEES YOU HAVE PAID FOR THE SPECIFIC SERVICE GIVING RISE TO THE CLAIM.

4.4. YOU ARE SOLELY RESPONSIBLE FOR ANY INTERNATIONAL USE OF OUR SERVICE. PowerOne makes no representation that materials on this site are appropriate, legal, or acceptable when used outside the United States. Accessing any site or information, in any territories that deem such materials or access as illegal is prohibited by PowerOne. You are responsible for compliance with any and all local laws and customs. Your access of our Service when outside the United States is at your sole risk.

4.5. PowerOne provides access to third-party merchant sites [“Merchants”] from which you may purchase certain goods or services. You understand that PowerOne does not operate or control the products or services offered by Merchants and that PowerOne is not a party to the transaction entered into between you and any and all Merchants.
YOU AGREE THAT USE OF ANY SUCH MERCHANT IS AT YOUR SOLE RISK AND IS WITHOUT WARRANTIES OF ANY KIND BY POWERONE OR POWERONE AFFILIATED COMPANIES, EXPRESSED, IMPLIED OR OTHERWISE INCLUDING WARRANTIES OF TITLE, FITNESS FOR PURPOSE, MERCHANTABILITY OR NON-INFRINGEMENT. UNDER NO CIRCUMSTANCES IS POWERONE OR POWERONE AFFILIATED COMPANIES LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND MERCHANTS OR FOR ANY INFORMATION APPEARING ON MERCHANT’S SITES OR ANY SITE LINKED TO A POWERONE SITE.

4.6. You agree to defend, indemnify, and hold PowerOne and PowerOne Affiliated Parties harmless from any and all liabilities, costs, and expenses, including reasonable attorneys' fees, related to or arising from: any violation of this Agreement by you or those who access the Service through your account and, the use of the Service or the Internet and the placement or transmission of any message, information, software, or other materials on the Internet by you or by those who have access to the Service through your account.

5. Miscellaneous

5.1. This Agreement, the Acceptable Use Policy and the Disclosure and Privacy Policy [together referred to as the “Documents”] constitute the entire understanding of the parties with respect to the provision of the Service. The “Documents” supersede all prior or contemporaneous communications, advertisements, proposals, or information provided (whether via electronic, written, oral, or by other means of communications) between you and PowerOne.

5.2. PowerOne's failure to enforce strict performance of any provision of this Agreement shall not be construed as a waiver.

5.3. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, United States of America, without regard to its conflicts of law provisions. You consent to the personal jurisdiction of the federal and state courts having jurisdiction for Tavares, Florida with respect to all disputes arising out of this Agreement, your use of the Service or otherwise between you and PowerOne.

5.4. Neither this Agreement, nor any of your rights or obligations arising hereunder, shall be transferable or assignable by you to any third party without PowerOne's prior written consent. PowerOne shall have the right to assign all or part of its rights and obligations under this Agreement.

5.5. No amendment or modification to this Agreement by you shall be valid or binding on PowerOne unless made in writing and signed by an authorized representative of PowerOne.

5.6 Relationship of the Parties. It is expressly understood and acknowledged that it is not the intention or purpose of this Agreement to create, nor shall the same be construed as creating, any type of partnership, relationship or joint venture.

5.7 Force Majeure. Neither Party shall be considered in default in performance of its obligations should its performance thereof be delayed or prevented by force majeure. "Force Majeure" shall include, but not be limited to: hostilities, restraint of rules or peoples, revolution, civil commotion or riots; strikes or lockout; epidemic; accident, fire, flood, earthquake, windstorm or explosion; lack of or failure of transportation facilities; lack of or failure of power facilities; regulation or ordinance, demand or requirement of a denial of approval by any government or governmental agency having or claiming to have jurisdiction over the subject matter of this Agreement or over the parties; or any act of God or any act of Government, or any cause, whether, of the same or different nature, existing or future, which is beyond the control and without the fault or negligence of the parties.

5.8 In the event any part of this Agreement shall be deemed unenforceable by a court of law all other provisions of this Agreement shall remain in full force and effect. Any terms that are determined to be unenforceable will be construed in a manner that is consistent with the intentions of this Agreement.