Term Of Use

MAMBO MEDIA, INC. Web Site Hosting Terms of Use Effective January 1, 2002

Agreement. This agreement governs the Terms and conditions under which MAMBO MEDIA, INC. makes the MAMBO MEDIA, INC. Service available to businesses in connection with the "MAMBO MEDIA, INC. Web Site Hosting" service or similar service. Under this agreement, you must comply with MAMBO MEDIA, Inc.'s "Acceptable Use Policy," as updated from time to time by MAMBO MEDIA, INC., which is incorporated in this agreement by reference.

1. Amendment
MAMBO MEDIA, INC. may modify this agreement or the "Acceptable Use Policy" at any time in its sole discretion. Any modification is effective immediately upon either a posting on the MAMBO MEDIA, INC. Home Page, currently located at URL: http://www.mambomambo.com or by a message from MAMBO MEDIA, INC. sent by electronic mail, or by conventional mail. You are required to adhere to the terms of the policy thus urged to continually familiarize yourself with this policy as it may be updated. If any modification to this agreement is unacceptable to you, you may immediately terminate your subscription as provided in Section 19 below. However, if you do not terminate your registration, or continue to use the MAMBO MEDIA, INC. Service, following notice of any modification to this agreement, your continued use will mean that you have accepted that modification.

2. No Warranties
Mambo Media makes no warranties or representations of any kind for the services being offered. 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, noninfringement, or implied warranties of merchantability or fitness for a particular purpose. No advice or information given by Mambo Media or its agents or employees shall create a warranty. Mambo Media provides no warranty that the service will be uninterrupted or error free or that any information, software or other material accessible on the service is free from viruses or other harmful components. Under no circumstances shall Mambo Media be liable for any direct, indirect, special, punitive, or consequential damages that result in any way from your use of or inability to use the service, or for third parties' use of the service to access your Web space, or to access the Internet or any part thereof, or your or any third parties' reliance on or use of information, services, or merchandise provided on or through the service, or that result from mistakes, omissions, interruptions, deletion of files, errors, defects, delays in operation or transmission, or any failure of performance. If you are dissatisfied with Mambo Media's service or any of its terms, conditions, rules, policies, guidelines, or practices, your sole and exclusive remedy is to discontinue using the service. You understand that by placing information on Mambo Media's servers that such information becomes available to all Internet users and that Mambo Media has no way of limiting or restricting access to such information or protecting such information from copyright infringement. You assume total responsibility and risk for your use of Mambo Media's servers and the Internet. It is solely your responsibility to evaluate the accuracy, completeness, and usefulness of all opinions, advice, services and other information, and the quality and merchantability of all merchandise provided through Mambo Media or on the Internet generally. The terms of this Section will survive any termination of this agreement.

3. User Conduct.
Mambo Media's services may only be used for lawful purposes. Any use of these services which violates any local, state, federal, or international laws which may apply to Mambo Media, your local jurisdiction, or any jurisdiction that you or your site may be subject to is strictly prohibited. While using the service, you may not:

A. Restrict or inhibit any other user from using and enjoying the Internet; B. Post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, federal or international law, including without limitation the U.S. export control laws and regulations, and laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws; C. Post, publish, transmit, reproduce or distribute any information or software which contains a virus or other harmful component; D. Post, publish, transmit, reproduce, distribute or in any way exploit any information, software, or other material obtained through the service for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material);

4. Information and Products
You acknowledge that except for information products or services clearly identified as being supplied by MAMBO MEDIA, INC., neither MAMBO MEDIA, INC. nor any of its suppliers, licensor, or affiliates ("Affiliates") operates or controls any information, products or services accessiblethrough the MAMBO MEDIA, INC. Service in any way and that, except for such MAMBO MEDIA, INC. identified information, services or products, all merchandise, information and services offered or made available or accessible through the MAMBO MEDIA, INC. Service are offered or made available or accessible by third parties who are not affiliated with MAMBO MEDIA, INC. or its Affiliates. YOU ACKNOWLEDGE THAT USE OF THE MAMBO MEDIA, INC. SERVICE IS AT YOUR SOLE RISK AND YOU AGREE THAT ANY INFORMATION, SERVICE OR PRODUCT ACCESSIBLE THROUGH THE SERVICE IS WITHOUT WARRANTIES OF ANY KIND BY MAMBO MEDIA, INC. AND ITS AFFILIATES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The terms of this Section will survive any termination of this agreement.

5. Commerce on the Web
Through your uses of the MAMBO MEDIA, INC. Service, you may have opportunities to order and purchase merchandise or services from other subscribers to the MAMBO MEDIA, INC. service and users of other communications outlets such as the Internet. You further acknowledge that all transactions relating to merchandise or services offered by you through the MAMBO MEDIA, INC. service, including but not limited to the purchase terms, payment terms, warrantees, guarantees, maintenance and delivery terms for such transactions are agreed to solely between you and third party purchasers. MAMBO MEDIA, INC. and its affiliates make no warranties or representations whatsoever with respect to your goods and services, or with respect to the qualifications of any third party purchaser.

6. Charges
You are responsible for all charges (for example, telephone, dial-up or ADSL or ISDN charges) associated with connecting to the MAMBO MEDIA, INC. Service through an available access number. You are responsible for obtaining or providing all telephone access lines, telephone and computer equipment (including modem), or other access device, necessary to access the MAMBO MEDIA, INC. servers. You are responsible for determining whether the access number you use to connect to the MAMBO MEDIA, INC. Service will obligate you to pay telephone use charges to your telephone company, MAMBO MEDIA, INC. encourages you to contact your local telephone company to confirm that the call you are making is not a toll-charge. You are responsible for all activities and charges resulting from use of your principal account on the MAMBO MEDIA, INC. Service. If MAMBO MEDIA, INC. does not receive the full amount of Customer's MAMBO MEDIA, INC. Service account balance within 30 days of the invoice date or billing date, the lesser of an interest of an additional 1.5% per month, or the highest interest rate allowed by law, on the outstanding balance will be added to your bill as a late charge each month and will be due and payable immediately. The specific service you have chosen may offer you the choice of additional payment terms, including without limitation pre-payment terms. MAMBO MEDIA, INC. reserves the right to increase fees, surcharges, monthly hosting fees or to institute new fees at any time upon 30 days prior notice. MAMBO MEDIA, INC. may reduce any fees at any time without notice. In the event that your account is terminated or canceled, on-line time credited to your account is not convertible to cash or other form of credit.

7. Personal Information
You hereby certify to MAMBO MEDIA, INC. that you are not a minor. (A minor's parent or legal guardian may authorize a minor to use his/her account(s) under supervision by the parent or guardian at all times). For purposes of identification, billing and marketing, you must provide MAMBO MEDIA, INC. with accurate, complete, and updated information required by the registration to the MAMBO MEDIA, INC. Service ("Member Registration Data"), including your legal name, address, telephone number(s), and applicable payment data (for example, a credit card number and expiration date). You must notify MAMBO MEDIA, INC. within 30 days of any changes in your Member Registration Data. MAMBO MEDIA, INC. may require a copy of a state issued form of identification and/or other means as requested by company in the company's sole discretion. before making changes to the billing information or registration data on a Customer's account.

8. Accounts and Passwords
This agreement applies to all accounts, sub-accounts, alternative account names associated with your principal account. You are responsible for the use of each of your accounts, whether used under any name or any person, and for ensuring full compliance with this agreement by all users of that account. An MAMBO MEDIA, INC. Service account may not be transferred without prior written approval from MAMBO MEDIA, INC.. You are responsible for maintaining the confidentiality of your passwords. In the event of a breach of security through your account, you will be liable for any unauthorized use of the MAMBO MEDIA, INC. Service until you notify MAMBO MEDIA, INC. customer service at 888-506-2626.

9. OFFENSIVE MATERIAL.
YOU UNDERSTAND THAT INFORMATION AVAILABLE TO YOU THROUGH THE MAMBO MEDIA, INC. 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. MAMBO MEDIA, INC. AND ITS AFFILIATES HEREBY DISCLAIM ANY RESPONSIBILITY FOR OR CONTROL OVER SUCH MATERIALS.

10. At-Will Termination
This agreement will become effective on the date MAMBO MEDIA, INC. receives your first payment, and will remain in effect billing-month-to-billing-month unless terminated by either party pursuant to this agreement. You may terminate the agreement and your subscription at any time for any reason or no reason. Mambo Media reserves the right to refuse or discontinue service to anyone at Mambo Media's sole discretion. Mambo Media may deny you access to all or part of the service without notice if you engage in any conduct or activities that Mambo Media in its sole discretion believes violates any of the terms and conditions in this agreement. Mambo Media shall have no responsibility to notify any third-party providers of services, merchandise, or information, nor any responsibility for any consequences resulting from such discontinuance or lack of notification. You agree that Mambo Media has the right to monitor the service electronically from time to time and to disclose any information as necessary to satisfy the law, or to protect itself or its subscribers. Mambo Media reserves the right to refuse to post or to remove any information or materials, in whole or in part, that, in its sole discretion, are unacceptable, undesirable, or in violation of this agreement. Upon and after termination, MAMBO MEDIA, INC. will not be obligated to provide you with access to any stored e-mail or content related to your account. Your only right with respect to any dissatisfaction with any terms, rules, policies, guidelines, or practices of MAMBO MEDIA, INC. in operating the MAMBO MEDIA, INC. Service, any change in the content of the MAMBO MEDIA, INC. Service, or any change in the amount or type of fees charged in connection with the MAMBO MEDIA, INC. Service, is to terminate this agreement by delivering notice to MAMBO MEDIA, INC., effective the day MAMBO MEDIA, INC. receives notification of termination.

11. IP Addresses
If MAMBO MEDIA, INC. assigns you an Internet Protocol address for your use of the MAMBO MEDIA, INC. Service, the right to use that Internet Protocol address will belong only to MAMBO MEDIA, INC., and you will have no right to use that Internet Protocol address except as allowed by MAMBO MEDIA, INC. in its sole discretion in connection with the plan you have selected, during the term of this agreement.

12. Electronic Mail and USENET/Newsgroup Postings
MAMBO MEDIA, INC. may, but is not obligated to, block any incoming or outgoing e-mail message that MAMBO MEDIA, INC. determines, in its sole discretion, is unsolicited or otherwise violates the then-current Legal Statement and Acceptable Use Policy. MAMBO MEDIA, INC. shall not be responsible for lost, misdirected or undeliverable e-mail. You must not use MAMBO MEDIA, INC. Services, MAMBO MEDIA, INC.'s equipment or any MAMBO MEDIA, INC. e-mail address in connection with the transmission of the same or substantially similar unsolicited message to fifty (50) or more recipients or fifteen (15) or more USENETs or newsgroups in a single day. For each day upon which your e-mail use is in excess of the limitations in this provision, you must pay MAMBO MEDIA, INC. additional service fees for such excess use. You must pay MAMBO MEDIA, INC. $10 per day if you unintentionally exceed the limitation of this provision. If you intentionally exceed the limitations of this provision, you must pay MAMBO MEDIA, INC. $1000 per day. MAMBO MEDIA, INC., in its sole discretion, shall determine whether a transmission is intentional. Payment under this provision will not prevent MAMBO MEDIA, INC. from seeking legal remedies against you for any damages incurred as a result of such use, in addition to the damages set forth above Mambo reserves the right to obtain injunctive relief. All e-mail messages sent through MAMBO MEDIA, INC. Services are transmitted through MAMBO MEDIA, INC. Services in California and other jurisdictions.

13. Storage Capacity
Your storage space and bandwidth utilization on the MAMBO MEDIA, INC. Service must remain within the Storage Space and Bandwidth Allocations associated with the access plan you have selected. For MAMBO MEDIA, INC. Web Site Hosting and similar accounts, these allocations are set forth in the account plan selected during registration. Additional storage space and bandwidth may be available at an additional charge. Please contact MAMBO MEDIA, INC. if you are interested, sales@mambomambo.com.

14. Traffic and Hits
If you publish any Web page or site using the MAMBO MEDIA, INC. Service, the usage of that Web page or site should be consistent with the access plan you have chosen. MAMBO MEDIA, INC. may suspend or terminate access to your Web page or site if it is determined that that Web page or site has, on any single day, exceeded data transmission in excess of fifty megabytes (50,000K) or more.

15. Indemnification
You agree to indemnify, defend, and hold harmless Mambo Media, Inc., its officers, directors, employees, agents from any and all liability, penalties, losses, damages, costs, expenses, attorneys' fees, causes of action or claims caused by or resulting indirectly from your use of the service which damages either you Mambo Media, or any other party or parties without limitation or exception. This indemnification and hold harmless agreement extends to all issues associated with your account, including but not limited to domain name selection and Web site content.

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

17. Assignment and Resale
You may not resell the MAMBO MEDIA, INC. Service to any other party. You may not assign this agreement or any of its rights or obligations without the prior written consent of MAMBO MEDIA, INC., and any such attempted assignment will be void. Subject to the above, this agreement will be binding upon the parties' respective successors and permitted assigns.

18. Notices
Any notices in connection with this agreement must be sent to each party as follows: if to MAMBO MEDIA, INC.: MAMBO MEDIA, INC. 60 Florida Ave. Berkeley, CA 94707 or support@mambomambo.com; if to you: either the e-mail address for your account, or the address supplied by you as part of the Member Registration Data. Any notices or communication under this agreement will be deemed delivered to the party receiving such communication on the delivery date if delivered personally to the party; (2) two business days after deposit with a commercial overnight carrier, with written verification of receipt; (3) five business days after the mailing date, whether or not received, if sent by US mail, return receipt requested; (4) on the delivery date if transmitted by confirmed facsimile or (5) on the delivery date if transmitted by confirmed e-mail.

19. Force Majeure
MAMBO MEDIA, INC will not be liable in any amount for failure to perform any obligation under this agreement by the occurrence of any unforeseen contingency beyond the reasonable control of such party including without limitation Internet outages, communications outages, fire, flood, war or act of God.

20. General Terms
Interpretation and enforcement of this agreement will be governed by the laws of the state of California. You hereby consent to personal jurisdiction in the federal and state courts of Alameda County, California for any action arising out of or relating to your use of the MAMBO MEDIA, INC. Service. The federal and state courts of Alameda County, California will have exclusive jurisdiction over all such actions. In any such action, the prevailing party will be entitled to recover all legal expenses incurred in connection with the action, including but not limited to its costs, both taxable and non-taxable. The terms of this Section will survive any termination of this agreement.