Terms and Conditions of Sale Agreement

THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN MUSHROOM NETWORKS, INC. (“MUSHROOM NETWORKS”) AND THE LEGAL ENTITY YOU REPRESENT (“BUYER”) REGARDING BUYER’S PURCHASE OF THIS BROADBAND BONDING NETWORK APPLIANCETM (THE “BBNA”). BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE COMPLETING THIS PURCHASE TRANSACTION, BUYER CONFIRMS THAT IT HAS READ THIS AGREEMENT AND AGREES TO BE BOUND BY ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT. THE PERSON CLICKING THE “I ACCEPT” BUTTON REPRESENTS, WARRANTS AND CERTIFIES THAT HE/SHE IS AUTHORIZED BY BUYER TO AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT.

Please print a copy of this Agreement for your records. This Agreement represents the sole understanding between Mushroom Networks and Buyer with respect to the purchase of BBNAs. Any provision of Buyer’s purchase order (or other documents and communications) which is in any way inconsistent with or in addition to this Agreement shall not be binding on Mushroom Networks and are hereby rejected by Mushroom Networks.

PAYMENT.

Buyer hereby authorizes Mushroom Networks to charge Buyer’s credit card for the purchase price of the BBNAs purchased by Buyer, the shipping, transportation and handling costs and all taxes applicable to Buyer’s purchase of the BBNAs. Buyer warrants to Mushroom Networks that Buyer is financially solvent within the meaning of Section 2702 of the California Commercial Code.

NO CANCELLATION.

Buyer may not cancel this order.

F.O.B. 

Sale of BBNAs are made F.O.B. Mushroom Networks’ facility. Title and risk of loss shall pass to Buyer upon tender by Mushroom Networks of the BBNAs to the carrier at Mushroom Networks’ shipping point. All claims for damages must be filed directly with the carrier. The planned shipment date is an estimate only, and Mushroom Networks will not be subject to liability for failure to ship on or before such date under any circumstances. Any carrier selected by Mushroom Networks shall not be deemed an agent of Mushroom Networks. Mushroom Networks reserves the right to make partial shipments if Buyer orders more than one product. Buyer may not reject a delivery by reason of partial shipment.

FORCE MAJEURE.

Mushroom Networks shall not be liable for nonperformance or delays, under any circumstances, which occur due to any causes beyond its reasonable control. In no event shall Mushroom Networks be liable for any delay or re-procurement costs for failure to meet any shipment date. In the case of BBNA shortages, Mushroom Networks reserves the right to allocate BBNAs in a fair and equitable manner among all of its customers.

ACCEPTANCE.

Buyer shall give written notice to Mushroom Networks of (i) discrepancies between the type and quantity of BBNAs ordered and BBNAs delivered or (ii) a failure of a BBNA to operate substantially as specified in the user manual, in each case within thirty (30) days after delivery of the BBNA to Buyer. Lacking such notice, the Buyer shall be deemed to have accepted the BBNAs as delivered. No credit allowances for defective BBNAs will be made or replacements therefor shipped until it is established to Mushroom Networks’ satisfaction after suitable testing and inspection that a BBNA was defective on the delivery date. If Buyer rejects a BBNA, Mushroom Networks will, it its discretion, either repair the BBNA, replace the BBNA or refund the price paid for the BBNA. THE FOREGOING SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR ANY SUCH REJECTION. In no event shall Mushroom Networks be liable for Buyer’s costs of procurement of substitute products or Buyer’s inability to obtain substitute products. If a BBNA is rejected, Buyer must return it to Mushroom Networks using the RMA process described below.

LIMITED WARRANTY AND DISCLAIMERS

Mushroom Networks warrants that each BBNA will be free from physical defects in material and workmanship for six months from the date of purchase, when used within the limits set forth in this Agreement.

To receive warranty support contact Mushroom Networks Technical Support at 888.842.1231 extension 703 and in order to obtain a Return Material Authorization (RMA) number and a description of the RMA process. In the event a BBNA proves defective during the warranty period, Mushroom Networks will, it its discretion, either repair the BBNA, replace the BBNA with a new or refurbished BBNA or refund the price paid for the BBNA. The new or refurbished BBNA will be warranted for the balance of the original warranty period. THE FOREGOING SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE FOREGOING WARRANTY.

IN ORDER TO RECEIVE WARRANTY SUPPORT YOU MUST HAVE YOUR PROOF OF PURCHASE AND THE PRODUCT MANUFACTURING ID FROM THE PRODUCT’S PACKAGING. RETURN REQUESTS CANNOT BE PROCESSED WITHOUT PROOF OF PURCHASE. 

When returning a BBNA, you must mark the RMA number clearly on the outside of the package and include a copy of your original proof of purchase. All customers located outside of the United States of America and Canada must pay for shipping and handling charges to return a defective BBNA.

The foregoing warranty shall be void and of no force or effect if (i) the BBNA is modified by any person other than Mushroom Networks or is installed, operated or maintained in any manner that is inconsistent with the terms in the user manual, (ii) the external BBNA housing is opened or tampered with or (iii) the BBNA is subject to any abuse, negligence or misuse, including without limitation physical or electrical abuse or stress, or exposure to water or fire. EXCEPT FOR THE LIMITED EXPRESS WARRANTY SET FORTH ABOVE, MUSHROOM NETWORKS MAKES NO OTHER WARRANTIES OR REPRESENTATIONS REGARDING BBNAS, EXPRESS OR IMPLIED. MUSHROOM NETWORKS DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED, STATUTORY AND OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF UNINTERRUPTED, ERROR-FREE OR BUG-FREE OPERATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE AND ANY WARRANTY AS TO QUALITY OR PERFORMANCE. NO PERSON, REPRESENTATIVE OR FIRM IS AUTHORIZED TO EXTEND, ENLARGE OR OTHERWISE MODIFY THE LIMITED WARRANTY SET FORTHABOVE. IF THE EXCLUSION OF IMPLIED WARRANTIES CONTAINED HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN THE APPLICABLE IMPLIED WARRANTIES ARE LIMITED TO THE DURATION OF THE EXPRESS WARRANTY DESCRIBED ABOVE.

COPYRIGHTS & TRADEMARKS

BBNAs include certain embedded software and firmware (collectively, “Software”). The Software is a trade secret of Mushroom Networks, Inc. and is protected by various copyright and other intellectual property laws and treaties. No license is granted to you to reproduce, modify or create derivative works of, distribute, display or perform such Software. You may not reverse engineer, disassemble, decompile, or otherwise attempt to discover the source code for the Software. You may use the Software solely as embedded in the BBNAs. All Rights Reserved. “Broadband Bonding Network Appliance”, “Mushroom”, and the Mushroom Networks logo are registered trademarks or trademarks of Mushroom Networks, Inc.

SOFTWARE UPGRADES

Mushroom Networks may update the Software on the BBNAs remotely via the Internet to correct errors or bugs without notice to you. In addition, if you entered into a support contract with Mushroom Networks, Mushroom Networks may update the Software by providing Software upgrades, new versions and new releases remotely via the Internet without notice to you. You may not interfere with the delivery of such updates.

INDEMNIFICATION BY MUSHROOM NETWORKS.

Mushroom Networks agrees, at its own expense, to defend Buyer with respect to all suits instituted against Buyer by third parties to the extent based on a claim that a BBNA infringes a U.S. patent issued prior to the date of sale, U.S. copyright or U.S. trademark, and will pay all damages awarded against Buyer, or settlements entered into by Mushroom Networks, in connection therewith, provided, however, that Buyer (i) gives immediate written notice to Mushroom Networks of the institution of any such suit, (ii) permits Mushroom Networks complete discretion in the conduct, defense, control, and settlement of the same, and (iii) gives Mushroom Networks all needed information, assistance, and authority to enable Mushroom Networks to do so. Mushroom Networks will not be responsible for defending any claim or to pay any award or damages assessed against Buyer based upon or alleging the making, use, or sale of BBNAs in combination with other products, equipment or materials not furnished by Mushroom Networks or based upon the making, use, or sale of BBNAs which are modified other than by Mushroom Networks. In the event BBNAs manufactured by Mushroom Networks infringe, or in the opinion of Mushroom Networks might constitute an infringement of, a U.S. patent issued prior to the date of sale, U.S. copyright or U.S. trademark, Mushroom Networks may, if Mushroom Networks so elects and if such a result is possible, either (i) secure for Buyer the right to continuing using the BBNAs by procuring for the Buyer a license, or by some other means, (ii) at Mushroom Networks’ own expense, replace the BBNAs with non-infringing BBNAs, or (iii) remove the enjoined BBNAs and refund the price paid therefor, less a reasonable sum for depreciation and use assuming a 2 year useful life. THIS SECTION STATES BUYER’S SOLE AND EXCLUSIVE REMEDY AND MUSHROOM NETWORKS’ ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR OTHERWISE) WITH RESPECT TO INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREOF.

LIMITS ON LIABILITY

IN NO EVENT SHALL MUSHROOM NETWORKS’ AGGREGATE LIABILITY EXCEED THE PRICE PAID FOR THE BBNAs. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MUSHROOM NETWORKS BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF MUSHROOM NETWORKS WAS ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE. THIS LIMITATION IS SEPARATE AND INDEPENDENT OF ANY OTHER REMEDY LIMITATIONS AND SHALL NOT FAIL IF SUCH OTHER LIMITATION ON REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THIS LIMITATION SHALL NOT APPLY TO PERSONAL INJURY CAUSED BY THE BBNAs.

GOVERNING LAW.

The validity, performance, and construction of this Agreement shall be governed by the laws of the United States of America and the State of California as applied to transactions taking place wholly within California between California residents. The U.N. Convention on Contracts for the International Sale of Goods is specifically excluded from application.

FORUM AND VENUE.

In the event of litigation to enforce any rights hereunder, the parties will voluntarily appear before and hereby consent and submit to the exclusive jurisdiction of the courts of the United States of America/United States District Court for the Southern District of California and the State Courts of California and each party hereby waives any venue objections to such courts. The prevailing party in any such litigation or related settlement negotiations shall be entitled to recover reasonable attorneys’ fees and expenses.

EXPORT.

Buyer agrees to comply strictly and fully with all export controls imposed by any jurisdiction.

AMENDMENT AND WAIVER.

These terms shall not be modified, supplemented, qualified, or interpreted by any trade usage or prior course of dealing without Mushroom Networks’ written consent. These terms may be amended or supplemented only by a writing that is signed by the authorized representatives of both parties. No term or provision of these terms will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by either party will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.

SEVERABILITY.

If any part of these terms is found invalid or unenforceable, that part will be amended to achieve as nearly as possible the same economic effect as the original provision and the remainder of these terms will remain in full force.

NO RELIANCE.

Buyer hereby acknowledges that it has not entered into this agreement in reliance upon any warranty or representation by any person or entity except for such warranties or representations as are specifically set forth herein. No representation, promise or condition not expressly provided in writing and signed by authorized representatives of Buyer and Mushroom Networks shall be binding on either party. ACCEPTABLE USE POLICY FOR BROADBAND BONDING PRODUCTS AND SERVICES This Acceptable Use Policy applies to all persons and entities (collectively, “customers”) using the Broadband Bonding services of Mushroom Networks, including Internet service. Mushroom Networks reserves the right to modify this policy at any time, effective immediately upon posting of the modification. Your use of Mushroom Networks’s products and services constitutes your acceptance of the Acceptable Use Policy in effect at the time of your use. You are solely responsible for any and all acts and omissions that occur during or relating to your use of the service, and you agree not to engage in any unacceptable use of the service.

What Uses are Prohibited?

Unacceptable use includes, but is not limited to, any of the following:

1. Posting, transmission, re-transmission, or storing material on or through any of Mushroom Networks’ products or services, if in the sole judgment of Mushroom Networks such posting, transmission, retransmission or storage is: (a) in violation of any local, state, federal, or non-United States law or regulation (including rights protected by copyright, trade secret, patent or other intellectual property or similar laws or regulations); (b) threatening or abusive; (c) obscene; (d) indecent; or (e) defamatory. Each customer shall be responsible for determining what laws or regulations are applicable to his or her use of the products and services.

2. Installation or distribution of “pirated” or other software products that are not appropriately licensed for use by customer.

3. Resale of Mushroom Networks products and services without the express prior written consent of Mushroom Networks.

4. Deceptive marketing practices.

5. Actions that restrict or inhibit anyone – whether a customer of Mushroom Networks or otherwise – in his or her use or enjoyment of Mushroom Networks’ products and services, or that generate excessive network traffic through the use of automated or manual routines that are not related to ordinary personal or business use of Internet services.

6. Introduction of malicious programs into the Mushroom Networks network or servers or other products and services of Mushroom Networks (e.g., viruses, trojan horses and worms).

7. Causing or attempting to cause security breaches or disruptions of Internet communications. Examples of security breaches include but are not limited to accessing data of which the customer is not an intended recipient, or logging into a server or account that the customer is not expressly authorized to access. Examples of disruptions include but are not limited to port scans, flood pings, packet spoofing and forged routing information.

8. Executing any form of network monitoring that will intercept data not intended for the customer.

9. Circumventing user authentication or security of any host, network or account.

10. Interfering with or denying service to any user other than the customer’s host (e.g., denial of service attack).

11. Using any program/script/command, or sending messages of any kind, designed to interfere with, or to disable a user’s terminal session.

12. Failing to comply with Mushroom Networks’ procedures relating to the activities of customers on Mushroom Networks-owned facilities.

13. Furnishing false or incorrect data on the order form contract (electronic or paper) including fraudulent use of credit card numbers or attempting to circumvent or alter the processes or procedures to measure time, bandwidth utilization or other methods to document “use” of Mushroom Networks’ products or services.

14. Sending unsolicited mail messages, including the sending of “junk mail” or other advertising material to individuals who did not specifically request such material, who were not previous customers of the customer or with whom the customer does not have an existing business relationship (e.g., E-mail “spam”); or distributing, advertising or promoting software or services that have the primary purpose of encouraging or facilitating unsolicited commercial E-mail or spam.

15. Harassment, whether through language, frequency, or size of messages.

16. Unauthorized use or forging of mail header information.

17. Solicitations of mail or any other E-mail address other than that of the poster’s account or service, with the intent to harass or collect replies.

18. Creating or forwarding “chain letters” or other “pyramid schemes” of any type.

19. Use of unsolicited E-mail originating from within the Mushroom Networks network or networks of other Internet Service Providers on behalf of or to advertise any service hosted by Mushroom Networks or connected via the Mushroom Networks network.

20. Exporting, re-exporting, or permitting downloads of any content in violation of the export or import laws of the United States or without all required approvals, licenses and exemptions.

21. Live Streaming video in the uplink direction unless the service is specifically described as “broadband bonding service with Video Optimization Module”. No failure or delay in exercising or enforcing this policy shall constitute a waiver of the policy or of any other right or remedy. If any provision of this policy is deemed unenforceable due to law or change in law, such a provision shall be disregarded and the balance of the policy shall remain in effect.

Abusable Resources

Upon notification of the existence of an abusable resource (e.g., open news server, unsecured mail relay, or smurf amplifier), the customer shall immediately take all necessary steps to avoid any further abuse of such resource. Any abuse of an open resource that occurs after the customer has received such notification shall be considered a violation of this policy and enforced as such.

Enforcement

Mushroom Networks may immediately suspend and/or terminate the customer’s service for violation of any provision of this policy upon verbal or written notice, which notice may be provided by voicemail or E-mail. Prior to suspension or termination, Mushroom Networks attempts to work with our customers to cure violations of this policy and ensure that there is no re-occurrence; however, Mushroom Networks reserves the right to suspend or terminate based on a first offense

Electronic Communications Privacy Act Notice

Mushroom Networks makes no guarantee of confidentiality or privacy of any information transmitted through or stored upon Cogent technology, and makes no guarantee that any other entity or group of users will be included or excluded from Mushroom Networks’ network. In addition, Mushroom Networks may periodically monitor transmissions over its network for maintenance, service quality assurance or any other purpose permitted by the Electronic Communications Privacy Act, P.L. No. 99-508, as amend 

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