Public Internet
Terms of Service Agreement

OlyPen Metro-Net Public Internet Service (the "Service", "OlyPen Metro-Net Service" or "Metro-Net") is a wireless 802.11 open wireless Internet service.

This Agreement (the "Agreement') between you as a subscriber ("you", "your" or "Subscriber") and OlyPen, Inc. sets forth the terms and conditions under which OlyPen, Inc., together with any of its affiliates and/or distribution partners (collectively "OlyPen" or "we"), agrees to provide OlyPen Metro-Net Service.

Please read this agreement carefully, before accessing the Service. By using the Service, you agree to abide by, and require others using the Service via your account to abide by the terms of this Agreement. If you do not agree with the foregoing, you must cease using the Service Immediately. This Agreement takes effect on the date which you accept this Agreement as described above, and continues until your subscription is terminated.

OlyPen reserves the right to modify the terms of this Agreement and/or prices for the Services and may discontinue or revise any or all other aspects of the Services in its sole discretion at any time by posting changes online. An online version of this Agreement, as so changed from time to time, will be accessible at metro-net.olypen.com another online location designated by OlyPen, or can be obtained by calling OlyPen Customer Service. Your continued use of the Services after changes are posted constitutes your acceptance of this Agreement as modified by the posted changes. The updated, online version of this Agreement shall supersede any prior version of this Agreement. If you do not agree, you must cease using the Service immediately and notify OlyPen that you are terminating your account.

In consideration of OlyPen's provision of the Services that you have requested, subject to applicable law, YOU AGREE AS FOLLOWS:

IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST IMMEDIATELY STOP THE USE OF THE SERVICES AND NOTIFY OLYPEN CUSTOMER SERVICE SO THAT YOUR ACCOUNT MAY BE CLOSED.

1.0 Warranty Disclaimer. The service is provided on an "as is" and "as available" basis without warranties of any kind, either express or implied, including but not limited to warranties of title, noninfringment, implied warranties of merchantability or fitness for a particular purpose or any warranties arising from course of dealing or usage of trade, no advice or information given by OlyPen, its affiliates, its licensers, its contractors or their respective employees shall create a warranty. Neither OlyPen nor its affiliates, its licensers, its contractors or their respective employees warrants that the service will be uninterrupted or error free or that any information, software or other material accessible on the service is free of viruses, worms, Trojan horses or other malware and/or harmful components.

2.0 Limitations of Liability. Under no circumstances shall OlyPen, its affiliates, its licensers, its contractors or other respective employees be liable for any direct, indirect, incidental, special, punitive or consequential damages that result in any way from user's use of or inability to use the Service or to access the Internet or any part thereof, or user's reliance on or use of information services or merchandise provided on or through the Service, or that results from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, any failure of performance, computer virus, communication line failure, theft or destruction or unauthorized access to alteration of or use of user's account, whether for breach of contract, negligence or under any other cause of action. In the event OlyPen is found liable under any circumstance under the terms of this agreement, OlyPen's liability shall be limited to the unused balance of Subscriber's subscription payment pro-rated to reflect the current term.

2.1 Remedy. If Subscriber is dissatisfied with the Service or with any terms, conditions, rules, policies, guidelines or practices of OlyPen in operating the Service, Subscriber's sole and exclusive remedy is to discontinue using the Services.

3.0 Free Service Limitations: OlyPen offers OlyPen Metro-Net Service free of charge on a limited basis and with certain restrictions. Restrictions may include but are not limited to restrictions in bandwidth; restricted access to specific websites and/or web content and/or Internet activity; use of Open DNSTM or other similar products to limit website access or web content; limited hours of use; limits to time of day use and more. OlyPen reserves the right to suspend or cancel a free service subscription at anytime for any reason or no reason, with or without notice. Subscriber agrees that the use of the Service is solely at OlyPen's discretion.

4.0 Communications. OlyPen will communicate with Subscriber primarily via e-mail and OlyPen will send notifications to Subscriber's e-mail address on file. Such notifications may consist of vital information about OlyPen Service, billing, service outages and enhancements or changes to existing Services. This information is usually time sensitive in nature. It is therefore important that Subscriber read any e-mail sent by OlyPen in a timely fashion to avoid any unexpected interruptions of Service. Subscriber may designate any preferred e-mail address to receive notifications from OlyPen. Subscriber may optionally request communication via U.S. Postal Service for an added cost of two dollars ($2.00) per month (see Section 5, Accounts, Charges and Payments, below).

5.0 Accounts, Charges and Payments.

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

5.2 Subscriber Responsibility and Confidentiality. Subscriber is responsible for maintaining the confidentiality of all login names and passwords associated with Subscriber's account. Subscriber is responsible for all activities and charges resulting from use of Subscriber's principal account with OlyPen. Subscriber agrees to pay all monthly membership fees, connect time charges, surcharges, applicable taxes and/or franchise fees and other charges incurred by Subscriber and/or Subscriber's designated users. In the event of a breach of security, Subscriber will remain liable for any unauthorized use of OlyPen Service until Subscriber notifies OlyPen Customer Service.

5.3 Service Start and Billing Period. Service commences on the first day of service is made available to Subscriber regardless whether or not subscriber uses the Service on that date. With the exception of free services, subscription expires as follows:

Daily Service: Subscriptions for daily service, non-recurring billing, expire 24 hours after activation.

Weekly Service: Subscriptions for weekly service, non-recurring billing, expire seven days from the date of activation (e.g. A weekly subscription activated at noon on the 1st day of the month would expire at noon on the 7th day of the month).

Monthly Service: Non-recurring subscriptions for monthly service expire 30 days from the date of activation (e.g. a monthly subscription activated at noon on Oct. 1st would expire at noon on Oct. 31st). Recurring subscriptions for monthly service expire one calendar month from the date of activation (e.g. a monthly subscription activated on Oct. 28th would expire at midnight on Nov. 27th).

5.5 Service Rates. Current rates for OlyPen Metro-Net Service may be obtained by calling (360) 683-1456, through OlyPen's Metro-Net web page (metro-net.olypen.com) or by visiting OlyPen at 245 E. Washington Street, Sequim, WA 98382. OlyPen reserves the right to increase or decrease fees and/or surcharges or to institute new fess at any time. OlyPen and Subscriber agree that such changes shall not take effect until the Subscribers then current subscription expires and shall apply only if Subscriber agrees to renew subscription.

5.6 Billing. All invoices are due and payable in advance of services rendered, on or before the due date stipulated on the invoice unless other payment terms have been authorized in writing by OlyPen. Invoices are sent via e-mail at least five (5) days prior to start of service date ("expiration date") and are due payable on date specified on invoice. Alleged non-receipt of invoice by E-mail does not alleviate Subscriber's responsibility to pay monthly reoccurring charges on or before due date in accordance with Subscriber's established monthly billing cycle. See Section 4.0 Communication.

5.7 Payment.

Non-Recurring Subscriptions: Payment for non-recurring subscriptions must be paid for by Credit or Debit card through the OlyPen Metro-Net online payment system at metro-net.olypen.com.

Recurring Subscriptions: Payment for recurring subscriptions is accepted by cash, check, ACH transfer, credit card and debit card. Checks shall be made payable to OlyPen and mailed or delivered to OlyPen at 245 E. Washington Street, Sequim, WA 98382. Cash payments may be made at the same address or at 314 E. 8th Street, Port Angeles, WA 98362. Credit card, debit card and ACH transfer payments may be made by contacting OlyPen Customer Service at (360) 683- 1456 or in person at 245 E. Washington Street, Sequim, WA 98382.

5.8 Return Payment Fees. OlyPen, at its sole discretion, may charge fees for all returned checks and account debit (including ACH transfer), bank card or charge card charge-backs. The current return/charge-back fee is $25.00 per incident. OlyPen reserves the right to change return/charge-back fees at any time.

5.9 Late Payment and Collection Charges. If OlyPen does not receive the full amount of Subscriber's OlyPen Service account balance within fifteen (15) days of invoice due date, the higher of an additional 1.5% of the outstanding balance or two dollars ($2.00) will be added to Subscriber's bill as a late charge for each month and shall be due and payable. Subscriber shall also be liable for any and all attorney and collection fees arising from OlyPen's efforts to collect any unpaid balance of Subscriber's account(s).

5.10 Refunds. There are no refunds for cancelled subscriptions.

5.11 Credit Card, Bank Debit and ACH Transfers. If Subscriber elects to be billed automatically by credit card, debit card or ACH transfer, Subscriber agrees to be billed each month for any amounts due under this Agreement.

5.12 Taxes and Fees. Subscriber acknowledges that currently, and from time to time, there is uncertainty about the regulatory classification of some of the Services OlyPen provides and, consequently, uncertainty about what fees, taxes and surcharges are due from OlyPen and/or its Subscribers. Accordingly, Subscriber agrees that OlyPen has the right to determine, in its sole discretion, what fees, taxes and surcharges are due and to collect and remit them to the relevant governmental authorities, and/or to pay and pass them through to Subscriber. Subscriber further agrees to waive any claims Subscriber may have regarding OlyPen's collection or remittance of such fees, taxes and surcharges.

5.13 Billing Errors. Subscriber agrees that it is Subscriber's responsibility to report OlyPen billing errors within thirty (30) days from receipt of the bill so that service levels and all payments can be verified. If not reported within 30 days, Subscriber agrees that the errors are waived.

6.0 Use of Service; General.

6.1 Service Modifications. OlyPen reserves the right to add to, modify, or delete any aspect, feature or requirement of the Services (including content, price, equipment and systems requirements). Upon any such change, your continued use of the Service will constitute your consent to such change and your agreement to continue to receive the Service, as so changed, pursuant to this Agreement.

6.2 Lawful Use and Acceptable Use Policy. Subscriber agrees use the Service for lawful purposes and to be governed by OlyPen's Acceptable Use Policy ("AUP") as published on OlyPen's web site at www.olypen.com. Among other things, the AUP prohibits:

(a) Using the Service in a manner that is prohibited by law or regulation or facilitates the violation of any law or regulation;

(b) Using the Service in a manner that will disrupt third parties use or enjoyment of the OlyPen Service or other communications services and outlets;

(c) Use of the Service to invade the privacy of third-parties;

(d) Transmitting via e-mail, USENET, chat service or the Subscriber's personal web page or site, abusive, profane, libelous, slanderous, threatening or otherwise harassing material;

(e) Soliciting other OlyPen subscribers to patronize competing services

6.3 Confidentiality. Subscriber agrees to be responsible for protecting the confidentiality of screen names, passwords, personal identification numbers (PINs), parental control passwords or codes and any other security measures made available, recommended or provided by OlyPen.

6.4 Objectionable Material. You, the Subscriber, understand that information available to you through the 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.

6.5 Access Restrictions. Subscriber recognizes that Subscriber is solely responsible for the content of any information Subscriber makes available through the Service. Subscriber 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. Subscriber expressly agrees that OlyPen shall not be liable to Subscriber 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. Subscriber recognizes that OlyPen's actions with respect to such material may include restriction, suspension or termination of Subscriber's access privileges and/or deletion of the objectionable material.

7.0 Internet Service

7.1 Service Speeds & Data Transfer. OlyPen provides broadband Internet access on a best-effort basis. Service speeds stated are provided up to the speed indicated on a "best- effort" basis with no assurance of achieved or sustained throughput. Data transfer rates between Customer Premise Equipment (CPE) and the Internet may vary due to Internet traffic congestion, peak usage, system maintenance, weather effects such as rain, snow, fog, wind lightning, and other influences.

7.2 Service Performance. OlyPen shall use commercially reasonable efforts to assure that the Service is available to the Subscriber 24 hours per day, seven days per week. It is possible, however, that there will be interruption of the Service. If an outage condition is known sufficiently far in advance, OlyPen will attempt to provide the Subscriber with electronic mail notification. The Subscriber understands and agrees that the Service may be unavailable from time to time either for scheduled or unscheduled maintenance, technical difficulties, or for other reasons beyond OlyPen's control. The temporary unavailability of the Service shall not constitute a breach of contract or a failure by OlyPen to perform its obligations under this Agreement.

7.3 Network Management. OlyPen and its affiliates reserve the right to manage their respective networks as they deem necessary, in their sole discretion, to maintain Quality of Service (QOS) and integrity of their networks for all Subscribers and users. Management techniques may include, but are not limited to, bandwidth limiting by protocol, IP address and/or port; packet prioritization by protocol, IP address and/or port; and protocol, IP address and/or port blocking. OlyPen and its affiliates may employ, remove, change or otherwise modify management techniques at anytime, with or without notice.

7.4 Monitoring the Services. OlyPen is concerned with issues of privacy, however, OlyPen Metro-Net is an "open" wireless service and as such OlyPen can provide no assurance of any privacy against third party monitoring, snooping or eavesdropping. OlyPen has no obligation to monitor Internet content. However, the Subscriber understands and agrees that OlyPen has the right to monitor from time to time in accordance with its Privacy Policy. A copy of the Internet Privacy Policy can be found at OlyPen's web site www.olypen.com.

7.5 Security & Firewall. The OlyPen Metro-Net Service is an "open" wireless network with no firewall or security. The Subscriber agrees that the Subscriber is solely responsible for the implementation of reasonable security procedures.

8.0 Term; Termination of Service

8.1 Term. This Agreement will remain in effect until terminated by either party or superseded by a revised Subscription Agreement.

8.2 Termination; General. Either OlyPen or Subscriber may terminate all or any portion of Subscriber's Service at any time for any or no reason, in its sole discretion.

8.3 Termination by Subscriber. If Subscriber wishes to terminate all or any portion of the Service for any reason, Subscriber must notify OlyPen by phone (360-683-1456), or by mail (OlyPen, Inc., 245 E. Washington St., Sequim, WA 98382), or in person (245 E. Washington St, Sequim, WA 98382), or by electronic mail (billing@olypen.com) to request a cancellation of service. SUBSCRIBER SHALL REMAIN LIABLE FOR ANY AND ALL MONTHLY REOCURRING CHARGES ASSOCIATED WITH THE SERVICE AND SERVICE WILL NOT BE CONSIDERED TERMINATED UNTIL SUCH TIME AS SUBSCRIBER RECIEVES A WRITTEN CONFIRMATION OF SERVICE TERMINATION FROM OLYPEN.

8.4 Termination by OlyPen. OlyPen may suspend Service or terminate this Agreement for any reason or for no reason. Subscriber acknowledges that if OlyPen suspends Service or terminates this Agreement, OlyPen will give such notice as provided by applicable law, if any. If OlyPen suspends Service or terminates this Agreement for a reason other than Subscriber's violation of this Agreement, all applicable fees and charges will accrue until the date of suspension or termination, but OlyPen will refund all prepaid monthly service fees charged for Services after the date of termination (less any outstanding amounts due OlyPen for the Services, affiliate services, equipment, or other applicable fees and charges).

9.0 Privacy. OlyPen may provide Subscriber information to third parties or governmental entities when required, or permitted by law; to establish rights or obligations under this Agreement; or to protect OlyPen's or others rights or property regarding OlyPen services or the services of other providers from fraudulent, abusive or unlawful use of, or subscription to, such services. Full details of OlyPen's Privacy Policy may be found at OlyPen's web site www.olypen.com or by contacting OlyPen Customer Service.

10.0 Consent to Phone and E-mail Contact. By acceptance of this Agreement, Subscriber consents to OlyPen calling the phone numbers provided to OlyPen by Subscriber and/or OlyPen e-mailing Subscriber, at any e-mail address provided to OlyPen by Subscriber, for any purpose, including the marketing of its current and future Services. Subscriber may optionally remove specific phone numbers and/or e-mail address from OlyPen's marketing list by contacting OlyPen Customer Service. Among other things, Subscriber additionally agrees that:

(a) Being included in any state or federal "do not call" registry will not be sufficient to remove Subscriber from OlyPen's phone marketing list.

(b) If Subscriber's wireless or mobile provider charges Subscriber for receipt of such messages (phone, e-mail or otherwise), Subscriber shall be responsible for any and all applicable charges.

11.0 General Provisions.

11.1 Headings. The headings contained in this Agreement are for reference only and shall not affect in any way the meaning or interpretation of this Agreement.

11.2 Governing Law. This Agreement and all matters arising out of or related to this Agreement shall be governed by the laws of the State of Washington, without regard to conflicts of law provisions. The Subscriber agrees that the federal and sate courts of Washington alone have jurisdiction over all disputes arising under this Agreement and the Subscriber consents to personal jurisdiction of those courts with respect to any other disputes arising under this Agreement.

11.3 Dispute Resolution and Arbitration. Subscriber agrees that any dispute or claim arising out of or relating to the Services, Equipment, Software, or this Agreement (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration administered by the American Arbitration Association under its commercial arbitration rules. The Arbitrator of any dispute or claim brought under or in connection with Agreement shall not have the power to award injunctive relief. The sole exceptions to arbitration are that either party may pursue claims: (1) in small claims court that are within the scope of its jurisdiction, provided the matter remains in such court and advances only individual (non-class, non-representative, non-consolidated) claims; and (2) in court if they relate solely to collection of any debts Subscriber owes to OlyPen.

11.4 Force Majeure. In the event that either party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of any Act of God, strike, fire, flood, governmental acts, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party (a "Force Majeure Event"), the party who has been so affected shall give notice immediately to the other party and shall use its reasonable best efforts to resume performance. Failure to meet due dates resulting from a Force Majeure Event shall extend such due dates for a reasonable period. However, if the period of nonperformance exceeds thirty (30) days from the receipt of notice of the Force Majeure Event, the party whose ability to perform has not been affected may, by giving written notice, terminate this Agreement effective immediately upon such notice or at such later date as is therein specified.

11.5 Enforcement and Attorneys' Fees. In the event that either party to this Agreement shall bring a claim in arbitration to enforce any rights hereunder, the prevailing party shall be entitled to recover costs and reasonable attorneys' fees incurred as a result of such claim.

11.6 Severability. If any term of this Agreement is found to be void or invalid, such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. Neither party's failure to insist upon strict performance of any provision of this Agreement will be construed as a waiver of any of its rights hereunder.

Revised 09/28/2012

References:
OlyPen Acceptable Use Policy.
OlyPen Privacy Policy.
OlyPen Internet Disclosure