FIRSTSTREAM.COM

TERMS OF SERVICE

Last Updated:  May, 2007

The following Terms of Service govern all products and services provided by DigitalFX Networks, LLC, the owner and operator of the website www.firststream.com and/or any related or underlying websites (collectively, (the “Site”), or its affiliates, successors and assigns (collectively “Company”), to its customers (“Customer”).  Customer must enter into this Agreement by clicking on the "I AGREE" button (or similar buttons or links as may be designated by Company to show Customer’s acceptance of this Agreement). Customer hereby agrees and acknowledges that this Agreement covers all of its use of the Services, from any terminals where the Services are available. By using the Services, Customer signifies its irrevocable acceptance of this Agreement.  Company has the right to revise this Agreement at any time by posting such revised Agreement on the applicable pages of the Site.  By continuing to use the Services, Customer agrees to be irrevocably bound by the terms of this Agreement and any new versions or updates hereof.

1.             Order, Acceptance and Service.

                (a)           These Terms of Service shall apply to all products and services provided by Company to Customer.

                (b)           Company will provide, and Customer will purchase and pay for, the Services specified in the Order for the service fees specified in the Order and the applicable Service Description (the “Service Fees”).

                (c)           In connection with any Primary Services, Customer will not use any product or service in excess of the applicable limits established for the Services in the Service Descriptions. If Customer uses any product or service in excess of the applicable limits established for the Services in the Service Descriptions, Company may, without limiting its other rights or remedies, assess Customer with additional fees or suspend or terminate the Services.

2.             Fees, Taxes and Payment.  Customer will pay to Company the Service Fees in the manner set forth in the Order. Company may increase the Service Fees (i) in the manner permitted in the Service Description, and (ii) at any time on or after expiration of the Initial Term by providing ten (10) days prior written notice thereof to Customer. The Service Fees do not include any applicable sales, use, revenue, excise or other taxes imposed by any taxing authority with respect to the Services or any software provided hereunder (excluding any tax on Company’s net income). All such taxes will be added to the Service Fees as separate charges to be paid by Customer. Customer may from time to time add to the Services set forth in any applicable Service Description and may from time to time request a change or modification to the Services set forth in any applicable Service Description.  Any such addition, change or modification will require a change Service Fee, as set forth in the applicable Order or modified Service Description.  All fees, including, without limitation, all Service Fees and all change Service Fees, are fully earned when due and non-refundable when paid. If Company collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Company prevails in any action to which the Customer and Company are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company’s reasonable attorneys’ fees.

3.             Company’s Acceptable Use Policy. Customer will abide by, and utilize the Services and the Customer site only in accordance with, the (the “Acceptable Use Policy”) that Company posts on the Site, as such Acceptable Use Policy may be changed by Company from time to time. The Acceptable Use Policy is hereby incorporated herein and made a part hereof by this reference. Customer shall impose the Acceptable Use Policy on its customers and End Users to the extent necessary to ensure their compliance. Customer shall familiarize itself with the Acceptable Use Policy and periodically access the Site to determine if Company has made any changes thereto.

4.             License to Company. Customer hereby grants to Company a non-exclusive, royalty-free, worldwide right and license during the Term to do the following to the extent necessary in the performance of Services under the Order: (a) digitize, convert, install, upload, select, order, arrange, compile, combine, synchronize, use, reproduce, store, process, retrieve, transmit, distribute, publish, publicly display, publicly perform and hyperlink the Customer Content; and (b) make archival or back-up copies of the Customer Content and the Customer site, as necessary to provide the Service. Except for the rights expressly granted above, Company is not acquiring any right, title or interest in or to the Customer Content, all of which shall remain solely with Customer.

5.             Company Intellectual Property.

                (a)           Company hereby grants to Customer a non-exclusive, non-transferable, royalty-free license, exercisable solely during the term of this Agreement, to use applicable Company Technology solely for the purpose of accessing and using the Services. Customer may not use the Company Technology for any purpose other than accessing and using the Services. Except for the rights expressly granted above, this Agreement does not transfer from Company to Customer any Company Technology, and all right, title and interest in and to the Company Technology shall remain solely with Company. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Company Technology.

                (b)           Company’s trademarks, trade names, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Company. Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Company. Company shall maintain and control ownership of all Internet protocol numbers and addresses that may be assigned by Company to Customer. Company may, in its sole discretion, change or remove any and all such Internet protocol numbers and addresses.

                (c)           Any feedback, data, answers, questions, comments, suggestions, ideas or the like which Customer sends to Company relating to the Services will be treated as being non-confidential and non-proprietary. Company may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever.

6.             Customer’s Representations and Warranties. Customer hereby represents and warrants to Company, and agrees that during the Term, Customer will ensure that: (a) Customer is the owner or valid licensee of the Customer Content and each element thereof, and Customer has secured all necessary licenses, consents, permissions, waivers and releases for the use of the Customer Content and each element thereof, including without limitation, all trademarks, logos, names and likenesses contained therein, without any obligation by Company to pay any fees, residuals, guild payments or other compensation of any kind to any Person; (b) Customer’s use, publication and display of the Customer Content will not infringe any copyright, patent, trademark, trade secret or other proprietary or intellectual property right of any Person, or constitute a defamation, invasion of privacy or violation of any right of publicity or any other right of any Person, including, without limitation, any contractual, statutory or common law right or any “moral right” or similar right however denominated; (c) Customer will comply with all applicable laws, rules and regulations regarding the Customer Content and the Customer site and will use the Customer site, and the Services, only for lawful purposes; and (d) Customer has used its best efforts to ensure that the Customer Content is and will at all times remain free of all computer viruses, worms, trojan horses and other malicious code.

7.             Customer’s Responsibilities.

                (a)           Customer is solely responsible for the quality, performance and all other aspects of the Customer Content and the goods or services provided by Customer, including, without limitation, on or through the Customer site.

                (b)           Customer will cooperate fully with Company in connection with Company’s performance of the Services. Customer must provide any equipment or software that may be necessary for Customer to use the Services. Delays in Customer’s performance of its obligations under this Agreement will extend the time for Company’s performance of its obligations that depend on Customer’s performance on a day for day basis. Customer will notify Company of any change in Customer’s credit card information, mailing address, telephone, e-mail or other contact information.

                (c)           Customer assumes full responsibility for providing End Users with any required disclosure or explanation of the various features of the Customer’s products or services, as well as any rules, terms or conditions of use, including, without limitation, on the Customer site, the Customer’s allocated portion of the Site, if any, through the Customer’s use of the Services, and/or with respect to any goods or services described by Customer from time to time.

                (d)           Customer must provide to a third party appointed by Company a registered domain name in order to (i) allow such third party to register, host and administer such domain name for Customer, and (ii) enable Company to provide to Customer any e-mail services.  The registration, hosting and administration of Customer’s domain name are subject to and governed by the terms and conditions of service published from time to time by such third party. Alternatively, upon Customer’s request and subject to the terms and conditions of service published by such third party from time to time, such third party will register an Internet domain name on behalf of Customer for Customer’s e-mail use (as set forth in the applicable Service Description).

                (e)           Because the Primary Services permit Customer to electronically transmit or upload content directly to or from the Customer site, Customer shall be fully responsible for uploading all content and supplementing, modifying and updating the Customer site, and/or Customer’s allocated portion of the Site. Customer is also responsible for ensuring that the Customer Content and all aspects of the Customer site are compatible with the hardware and software used by Company to provide the Primary Services, as the same may be changed by Company from time to time. Specifications for the hardware and software used by Company to provide the Primary Services will be available on the Site. Customer shall periodically access the Site to determine if Company has made any changes thereto. Company shall not be responsible for any damages to the Customer Content, the Customer site or other damages or any malfunctions or service interruptions caused by any failure of the Customer Content or any aspect of the Customer site to be compatible with the hardware and software used by Company to provide the Primary Services.

                (f)            Unless the applicable Service Description provides otherwise, Customer is solely responsible for making back-up copies of the Customer site and Customer Content.

8.             Term and Termination (Non-Renewal).

                (a)           Primary Services will commence on the Effective Date indicated in the original Order and will automatically renew for successive one month periods on the anniversary date of delivery of services, unless the Order is terminated in accordance with its terms or either party gives written notice to the other party of non-renewal at least 15 days prior to expiration of the then-current term.

                (b)           Either party may terminate this Agreement immediately upon the occurrence of any one or more of the following events: (i) the other party fails to pay when due any amounts required to be paid under this Agreement; (ii) the other party breaches any material term or provision of this Agreement (other than a breach described in subsection (i) above), and if capable of cure, such breach remains uncured 5 days after the non-breaching party gives written notice thereof to the breaching party; or (iii) the other party becomes insolvent, makes an assignment for the benefit of its creditors, institutes or becomes subject to any proceeding under any bankruptcy or similar laws for the relief of debtors, or seeks the appointment of, or becomes subject to the appoint of, any trustee or receiver for all or any portion of such party’s assets.

                (c)           Company may terminate this Agreement (i) at any time, with or without cause, upon 15 days prior written notice to Customer; (ii) immediately, by giving written notice to Customer, if the Services are prohibited by applicable law, or become impractical or unfeasible for any technical, legal or regulatory reason, by giving Customer as much prior notice as reasonably practicable; or (iii) immediately, by giving written notice to Customer, if Company determines in good faith that Customer’s use of the Services or the Customer Content violates the Acceptable Use Policy.

                (d)           Customer may terminate this Agreement at any time, with or without cause, upon 15 days prior written notice to Company. Notification of cancellation/termination must be presented to Company in writing and sent via the Customer Support link available in the First Stream Administration Center ; via Fax at 702-940-1089 or postal mail. The 15 day cancellation period will commence upon receipt of written cancellation notification.  The effective date of such termination must occur prior to the next recurring Service Fee payment date scheduled by Company.  Any failure to comply with the foregoing will cause Customer to pay the next recurring Service Fee scheduled by Company, which payment will be non-refundable.

                (e)           Upon termination of this Agreement for any cause or reason whatsoever, neither party shall have any further rights or obligations under this Agreement, except as expressly set forth herein. The provisions of Sections 6, 7, 8(d), 10, 11, 12, 14 and 15 of this Agreement shall survive the expiration or termination of this Agreement for any cause or reason whatsoever, and, notwithstanding the expiration or termination of this Agreement, the parties shall each remain liable to the other for any indebtedness or other liability arising prior to the termination or expiration of this Agreement. Termination of this Agreement and retention of pre-paid fees and charges shall be in addition to, and not be in lieu of, any other legal or equitable rights or remedies to which Company may be entitled.

                (f)            If Customer terminates the Order in accordance with Section 8(b)(ii) or 8(b)(iii), Company shall return to Customer, and Customer shall accept, as Customer’s sole and exclusive remedy for Company’s breach of the Agreement, any Service Fees paid in advance by Customer hereunder attributable to Services not yet rendered as of the date of termination. If Customer terminates the Order in accordance with Section 8(d), the effective date of such termination must be in accordance with such section and must occur prior to the next recurring Service Fee payment date scheduled by Company.  Any failure to comply with the foregoing will cause Customer to pay the next recurring Service Fee scheduled by Company, which payment will be non-refundable.

9.             Limited Warranty.

                (a)           Company represents and warrants to Customer that the Services will be performed in compliance in all material respects with the applicable Service Descriptions. Customer will be deemed to have accepted such Services unless Customer notifies Company within 30 days after performance of any Services of any breach of the foregoing warranty. Customer’s sole and exclusive remedy, and Company’s sole obligation, for breach of the foregoing warranty shall be for Company, at its option, to re-perform the defective Services at no cost to Customer, or, in the event of interruptions to the Services caused by a breach of the foregoing warranty, issue Customer a credit in an amount equal to the current monthly Service Fees pro rated by the number of hours in which the Services have been interrupted. Company may provision the Services from any of its data centers and may from time to time re-provision the Services from different data centers.

                (b)           The foregoing warranty shall not apply to performance issues or defects in the Services (i) caused by factors outside of Company’s reasonable control; (ii) that resulted from any actions or inactions of Customer or any third parties; or (iii) that resulted from Customer’s equipment or any third-party equipment not within the sole control of Company.

                (c)           EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 9, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY COMPANY TECHNOLOGY PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. WITHOUT LIMITING THE FOREGOING, ANY THIRD-PARTY SOFTWARE PROVIDED TO CUSTOMER HEREUNDER IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE.

10.          Limitation of Liability.

                (a)           BECAUSE ELECTRONIC DATA PROVIDED ON OR WITHIN THE SERVICES CAN BE CORRUPTED OR LOST REGARDLESS OF WHAT PROTECTIONS ARE PROVIDED, AND BECAUSE SUCH SERVICES ARE SUBJECT TO POTENTIAL INFILTRATION, HACKING OR OTHER INTRUSION OR INTERRUPTION BY THIRD PARTIES, COMPANY CANNOT BE HELD LIABLE FOR LOST DATA OR ANY LOST PROFITS OR OTHER DAMAGES RELATED THERETO. CUSTOMER IS THEREFORE EXPECTED TO MAINTAIN INDEPENDENT BACKUP COPIES OF ANY DATA STORED ON A SERVER STORED WITH COMPANY. AS A RESULT, THE FOLLOWING LIMITATIONS OF LIABILITY APPLY REGARDLESS OF THE LEGAL BASIS FOR ANY CLAIM AGAINST COMPANY, AND WILL APPLY TO ANY LOSSES CAUSE BY THE ACTIONS, OMISSIONS, OR NEGLIGENCE OF COMPANY OR ITS AGENTS OR EMPLOYEES.

                (b)           IN NO EVENT WILL COMPANY’S LIABILITY IN CONNECTION WITH THE SERVICES, ANY COMPANY TECHNOLOGY PROVIDED HEREUNDER OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE SERVICE FEES PAID TO COMPANY BY CUSTOMER DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

                (c)           COMPANY CANNOT GUARANTEE CONTINUOUS SERVICE, SERVICE AT ANY PARTICULAR TIME, INTEGRITY OF DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. COMPANY WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION OR INADVERTENT DISCLOSURE OF, DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEM.

                (d)           customer acknowledges and agrees that certain services, including, without limitation the registration, hosting and administration of customer’s domain name, are provided by third parties unrelated to company.  because company has no control over such third parties or their services, customer hereby acknowledges and agrees that company is not responsible or liable for the services provided by such parties, and accordingly is not responsible or liable for any terms and conditions, privacy policies, services or actions taken by such third parties, or for any damages and/or losses arising therefrom, including, without limitation, any damages or losses incurred by customer as a result of any inability to use, transfer, re-direct, market, promote, sell products or services from or otherwise exploit any domain name (or associated website) registered, hosted or administered by any such third party.  customer further acknowledges and agrees that customer’s sole and exlusive remedy for any damages or losses incurred thereby in connection with services provided by any such third party shall be to terminate this agreement.

                (e)           EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY SHALL BE LIABLE IN ANY WAY TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, LOSS OF DATA OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, LICENSES OR SERVICES OR SIMILAR ECONOMIC LOSS, OR FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY NATURE, WHETHER FORESEEABLE OR NOT, UNDER ANY WARRANTY OR OTHER RIGHT HEREUNDER, ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF ANY ORDER, OR (EXCEPT AS PROVIDED IN SECTION 11) FOR ANY CLAIM AGAINST THE OTHER PARTY BY A THIRD PARTY, REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES.

                (f)            The limitations contained in this Section 10 apply to all causes of action in the aggregate, whether based in contract, tort or any other legal theory (including strict liability), other than claims based on fraud or willful misconduct. The limitations contained in Section 10(d) shall not apply to Customer’s indemnification obligations under Section 11.

11.          Indemnification of Company. Customer shall defend, indemnify and hold harmless Company, its affiliates and their respective present, former and future officers, directors, employees and agents, and their respective heirs, legal representatives, successors and assigns (collectively the “Company Indemnities”), from and against any and all losses, damages, costs, liabilities and expenses (including, without limitation, amounts paid in settlement and reasonable attorneys’ fees) which any of the Company Indemnities may suffer, incur or sustain resulting from or arising out of (i) Customer’s breach of any representation, warranty, or covenant contained in the Agreement, (ii) the Customer Content, the Customer site or any End User’s use of the Customer Content or the Customer site, (iii) violation by Customer or any of its officers, directors, employees or agents of the Acceptable Use Policy or any applicable law, (iv) claims or actions of third parties alleging misappropriation of trade secrets or infringement of patents, copyrights, trademarks or other intellectual property rights arising from the use, display or publication of Customer’s domain names, the Customer site, the Customer Content, or the use of the Services in combination with hardware, software or content not provided by Company, (v) claims or actions by third parties relating to or arising out of Customer’s use of the Services, and (vi) any failure of the Customer Content or any aspect of the Customer site to be compatible with the hardware or software used by Company to provide the Services, including any damage to Company’s servers or other hardware caused thereby.

12.          Confidentiality; Non-Solicitation.

                (a)           Customer will not, without the prior written consent of Company, use or disclose to any Person any Proprietary Information of Company disclosed or made available to it, except for use of such Proprietary Information as required in connection with the performance of its obligations or use of the Services hereunder. Subject to Section 12(b), Customer will (i) treat the Proprietary Information of Company as secret and confidential, (ii) limit access to the Proprietary Information of Company to those of its employees who require it in order to effectuate the purposes of this Agreement, and (iii) not disclose the Proprietary Information of Company to any other Person without the prior written consent of Company.

                (b)           Notwithstanding Section 12(a), the following shall not be considered Proprietary Information: (i) any information that Customer can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by Company; (ii) any information that was in the public domain prior to disclosure by Company as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by Company, comes into the public domain through no fault of Customer, (iv) any information that is disclosed to Customer without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure; or (v) any information that, two years after expiration or termination of this Agreement, does not constitute a trade secret under applicable law.

                (c)           Customer acknowledges that disclosure of any aspect of the Proprietary Information of Company shall immediately give rise to continuing irreparable injury to Company inadequately compensable in damages at law, and, without prejudice to any other remedy available to Company, shall entitle Company to injunctive or other equitable relief. Upon expiration or termination of this Agreement for any reason, Customer shall promptly return to Company all Proprietary Information of Company (including all copies thereof) in its possession or control.

                (d)           During the term of this Agreement and for two years following expiration or termination of this Agreement, Customer will not, directly or indirectly, solicit or recruit the services of any employee of Company performing services under this Agreement, while such employee is employed by Company and for a period of six months after such employee has left the employment of Company.

13.          Optional Services. In connection with any Optional Services:

                (a)           Customer must provide Company with any information, login identifications, passwords or other information or access to facilities that Company may reasonably require to provide the Optional Services.  Company will have no responsibility for any delays or increased costs or expenses associated with Customer’s failure to provide any such information. If Customer does not provide any such information or access requested by Company within fifteen (15) days of Company’s request therefore, Company may terminate the Order and retain any Service Fees paid.

                (b)           If Customer requested that Company perform the Optional Services by a particular deadline or that Company achieve some particular result or outcome, Company will use commercially reasonable efforts to perform the Services by any such deadline and achieve the result requested by Customer; provided, however, that (i) Company’s ability to perform the Services is subject to Customer’s provision of information and access as provided above, and (ii) Company has no liability or obligation to complete the Services by any deadline or achieve any particular outcome or result.

                (c)           If Customer wishes to convey documents or files to Company, Customer should deliver to Company a copy or duplicate of such documents or files and not the original copy. Company will not return to Customer any documents or files conveyed to Company.

                (d)           Company will have no liability or responsibility for any damage, loss of data, loss of use or other loss occurring in connection with Company’s provision of Optional Services requested by Customer.

14.          Miscellaneous.

                (a)           Independent Contractor. Company and Customer are independent contractors and nothing contained in this Agreement places Company and Customer in the relationship of principal and agent, master and servant, partners or joint ventures. Neither party has, expressly or by implication, or may represent itself as having, any authority to make contracts or enter into any agreements in the name of the other party, or to obligate or bind the other party in any manner whatsoever.

                (b)           Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon or arising from an alleged tort, shall be governed by the substantive laws of the State of Nevada . The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 14(C) BELOW MUST BE BROUGHT IN A NEVADA STATE OR FEDERAL COURT LOCATED IN LAS VEGAS, NEVADA, AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

                (c)           Mandatory Arbitration. Notwithstanding Section 14(b) above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Services (except for any claims for injunctive relief) must be submitted by the parties to arbitration. The arbitration shall be administered by an arbitrator or arbitration service agreed upon by the parties. If the parties are unable to agree upon an arbitrator or arbitration service, the arbitration will be administered by the American Arbitration Association. Any such arbitrator must render a reasoned opinion in writing only where the amount in dispute exceeds $100,000. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Las Vegas, Nevada . Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.

                (d)           Headings. The headings herein are for convenience only and are not part of this Agreement.

                (e)           Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any purchase order, service order, work order, confirmation, correspondence or other communication of Customer or Company, the terms and conditions of this Agreement shall control. No additional terms or conditions relating to the subject matter of this Agreement shall be effective unless approved in writing by any authorized representative of Customer and Company. This Agreement may not be modified or amended except by another agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to the Site. Should any additional or modified provisions of this Agreement be found to be unenforceable or unconscionable, it is the express intent of the parties that the Agreement on the date of the Order shall be binding on both Company and the Customer.

                (f)            Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.

                (g)           Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Customer via e-mail to the Customer’s e-mail address as maintained in Company’s billing records.

                (h)           Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.

                (i)            Assignment; Successors. Customer may not assign or transfer this Agreement, or any of its rights or obligations hereunder, without the prior written consent of Company. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

                (j)            Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than one year after the cause of action has arisen.

                (k)           Counterparts. If this Agreement is signed manually, it may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. If this Agreement is signed electronically, Company’s records of such execution shall be presumed accurate unless proven otherwise.

                (l)            Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.

                (m)          Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns.

                (n)           Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.

                (o)           Marketing. Customer agrees that during the term of this Agreement Company may publicly refer to Customer, orally and in writing, as a customer of Company. Any other public reference to Customer by Company requires the written consent of Customer.

                (p)           Electronic Signatures. Customer acknowledges and agrees that by clicking on the "I AGREE" button (or similar buttons or links as may be designated by Company to show Customer’s acceptance of this Agreement), Customer is entering into a legally binding contract. Customer hereby agrees to the use of electronic communication in order to enter into contracts, place orders and create other records and to the electronic delivery of notices, policies and records of transactions initiated or completed as a result of Customer’s agreement to this Agreement. Furthermore, Customer hereby waives any rights or requirements under any laws or regulations in any jurisdiction which require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable mandatory law.

15.          Definitions. For purposes of this Agreement, the following terms have the meanings specified below:

                (a)           “Agreement” means each contract created between Company and Customer for the provision of Services consisting of an Order, the applicable Service Description and these Terms of Service.

                (b)           “Company Technology” means Company’s proprietary technology, including, without limitation, Company services, software tools, hardware designs, algorithms, software (in source code and object code forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Company or licensed to Company from a third party), and also including any derivatives, improvements, enhancements, updates, modifications or extensions of Company Technology conceived, reduced to practice or developed during the term of this Agreement by either party.

                (c)           “Customer Content” means all data, graphics, text, names, marks, logos, hypertext links to other websites and other information uploaded to the Site or Customer site, or otherwise incorporated in, transmitted through or published or displayed by Customer in connection with its use of the Service or the Site, or any Customer site.

                (d)           “Customer site” means Customer’s website on the World Wide Web, or such other site or location, including, without limitation, any Customer server or data storage location, from which Customer provides any product or service, or from or on which Customer otherwise uses the Services.

                (e)           “End User” means any Person who accesses or uses the Services provided to Customer through any Customer site or otherwise.

                (f)            “Order” means the Order submitted online through the Site by the Customer to Company for Services.

                (g)           “Person” means any individual, partnership, joint venture, corporation, limited liability company, trust, unincorporated association or organization, or government or any agency or political subdivision thereof.

                (h)           “Proprietary Information” means all technical, business and other information of a party (i) that is not generally known to the public, (ii) that derives value, economic or otherwise, from not being generally known to the public or to other Persons who can obtain value from its disclosure or use, and (iii) which information is subject to efforts that are reasonable under the circumstances to maintain the secrecy thereof.

                (i)            “Service” or “Services” means Primary Service and/or Optional Service. “Primary Service” means the Service provided by Company in response to an Order whereby Company provides the Customer with specified e-mail, webcasting, instant messaging, blogging, podcasting and/or other digital media management products or services, and any associated storage and bandwidth, as more particularly described in the applicable Service Description. “Optional Service” means any additional Service (other than Primary Service) Company may provide in response to an Order, as more particularly described in the applicable Service Description.

                (j)            “Service Description” means the applicable documents or website descriptions made available from time to time by Company to describe the applicable Services.

                (k)           “Term” means the duration of any Agreement between Company and Customer. With respect to Primary Services, the “Initial Term” is the initial term specified in the Order and the Term continues beyond the Initial Term for any renewal period as specified in Section 8. With respect to Optional Services, the “Term” begins when Company accepts the Order and ends on the first to occur of (i) Company’s completion of performance, or (ii) the earlier termination of the Order in any manner permitted by these Terms of Service.

                (l)            “Terms of Service” means these Terms of Service, as the same may be modified, altered or amended from time to time by Company.

16.          Express Agreement.