Service Agreement

1.0 Definitions.

1.1 "Client" means the person who orders the Server and has ownership and control rights and obligations for the Server.

1.2 "Client Data" means all supporting data files and data structures provided by the Client for its Server.

1.3 "Server" means the disk storage space and software services provided to the Client including but not limited to the HTTP service, FTP service, SMTP service, POP service, server extensions, third-party software, and CGI library scripts.

1.4 "Physical Server" means the serving computers, hardware and operating- system, and software necessary to operate and support the Server in accordance with this Agreement.

1.5 "Studio 32," we," and "us" mean 32 Blue LLC dba Studio 32, and "our" means 32 Blue LLC dba Studio 32's.

1.6 "You" and "your" refer to the Client, and "your" means Client's.

2.0 Scope of Services.

Studio 32 will provide you with the following specific services:

2.1 Physical Server Hardware and Software Services. We will be responsible for maintenance of the Physical Servers and other computer and operating-system software located at our data center to operate and support the Server in a manner acceptable in the industry. Although our data center will make reasonable efforts to protect and backup data for you on a regular basis, our data center and Studio 32 are not responsible for the Client Data residing on the Server. You are ultimately and solely responsible for the backup of Client Data stored on your Server.

2.2 Physical Server Setup and Updating. We will configure the Server, and Client will load the Client Data onto the server computers so as to create a fully functional Internet presence. After the Server is loaded, set up with the Client Data, and is fully operational, Client will be responsible for all Web Server content management.

2.3 Server Support. Studio 32 will be your first line of defense against any problems with your server. Any problems that arise on your web site will be evaluated by Studio 32 to determine the cause of the problem. If the problem is related to our data center, Studio 32 will contact the appropriate people at our data center to have the problem resolved. If the problem is determined to be script or user related, Studio 32 will suggest appropriate actions to be taken by the Client.

2.4 Physical Server Connection and Access. Our data center will provide connection of the Server to the Internet, including all telecommunications equipment and connections for the Server to provide public access on a 24-hour-a-day, 7-day-a-week basis, with the exception of scheduled maintenance downtime. Our data center uses their best efforts to provide uninterrupted Physical Server Connection and Access, except for scheduled maintenance downtime and any interruption to Physical Server Connection and Access beyond their control caused by, for example, acts of nature, third-party equipment or transmission failures, or security breaches. Studio 32 accepts no responsibility for the connection of the Server to the Internet.

2.5 Maintenance Services.

a. Studio 32 will make all reasonable efforts to quickly resolve any server downtime that your site may experience.

b. Studio 32 may at its discretion use monitoring tools or contract to monitor activity on Client account in order to identify operational difficulties when they arise.

c. Studio 32 will perform maintenance services as they determine reasonably necessary to maintain the continuous operation of the Server. You agree to periodically-scheduled maintenance downtime periods. Studio 32 will provide prior notice of the maintenance downtime, except when circumstances beyond our control limit our ability to do so.

d. Studio 32 will install a web statistics program on your site, and configure it to properly analyze your web log files. Studio 32 will use the program of their choice. If the Client prefers to use a different web statistics program, Studio 32 will make reasonable efforts to support the client, but the Client is responsible for installing and configuring of any software not provided by Studio 32.

e. Studio 32 will provide Client with a web-based control panel interface for creating email accounts, creating users logins, creating ftp users, creating password-protected directories, and reading and writing electronic mail. The control panel may be updated at Studio 32's discretion to add, modify or delete functionality.

f. Studio 32 will install on Client's server, programs that are considered standard in the Internet community. Such programs may include: FTP server software, web server software, mail server software, and programming languages (Perl, PHP, C, etc.).

g. Studio 32 will activate certain Apache web server modules on Client server to support the Client in maintaining its web site Such modules may include: CGI directories, SSI activation, SSL activation, etc.

2.6 Hardware, Equipment and Software. You are responsible for and must provide all telephone, computer, hardware and software equipment and services necessary to access your Server. We make no representations, warranties, or assurances that your equipment or software will be compatible with the our data center's Server.

3.0 Payment Terms. You agree to the following payment terms in consideration for the services provided:

3.1 Setup Fee. You will pay us a one-time, non-refundable setup fee according to our current Server Price Schedule, which is available upon request.

3.2 Service Fee. You will pay us a monthly Service Fee for the services we provide under this Agreement according to our current Server Price Schedule. The Service Fee is billed to you in monthly installments, due on the first day of each calendar month of service, and is automatically charged to your credit card on file, unless you discontinue service with us prior to renewal. If we establish your service on a day other than the first day of a calendar month, we will bill you for prorated portion of that month before beginning regular monthly billing on the first day of the following calendar month. The Service Fee is subject to adjustment, with notice, according to the current Server Price Schedule.

3.3 Contract Length and Cancellation. The minimum contract and renewal period for a Server is one calendar month. We require fifteen (15) days' prior notice of your cancellation, and you will be charged in full for the entire length of the month in which your service is actually canceled. This means that if you give notice fewer than fifteen days prior to the end of a month, you will be charged for the full month following the month of your notice. In the event you have elected to prepay subsequent, additional months' Service Fees, we retain the right to charge an administrative fee and deduct the administrative fee from the subsequent, future months' Service Fees before refunding them to you

3.4 Breach. In the event we terminate this Agreement because of a breach, you will be charged in full for the entire month in which the breach occurred. In the event you have elected to prepay subsequent, additional quarters' Service Fees, we retain the right to charge an administrative fee and deduct the administrative fee from the subsequent, future months' Service Fees before refunding them to you

3.5 Tax. These fees are exclusive of any and all federal, state, and local sales, use, value added, excise, duty and any other taxes assessed with respect to the services provided under this Agreement, except that your income taxes and any sales or similar taxes on the sale of the Client products and services to end users shall be the sole responsibility of the Client.

4.0 Representations and Warranties. Our obligations under this Agreement are conditioned upon the following representations and warranties:

4.1 Compliance with Law. You represent and warrant that you will comply with all applicable local, state, federal, and international laws in your performance of this Agreement and in the use and operation of the Server, including but not limited to laws governing technology, software and trade secrets.

4.2 Authority to Contract. You represent and warrant that you have full authority and right to enter into this Agreement and that there are no conflicting claims relating to the rights granted by this Agreement.

4.3 Non-Infringement. You represent and warrant that your performance of this Agreement and providing the Web Service, including the software or data files, shall not infringe the intellectual property or other proprietary rights of any third party.

4.4 Our Performance. We represent and warrant that our services shall be performed in a professional and workmanlike manner, and the computer servers will be operated in accordance with our obligations as defined by this Agreement.

4.5 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED ABOVE, WE MAKE NO WARRANTY RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, AND ALL SERVICES ARE PROVIDED ON AN "AS-IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT.

5.0 You expressly agree that use of the Server is at your own risk. Neither we, our employees, affiliates, agents, third-party information providers, merchants, licensors or the like, warrant that service will be uninterrupted or error-free; nor do we make any warranty as to the results that may be obtained from the use of the service or as to the accuracy, reliability or content of any information serviced or merchandise contained in or provided through our service, unless otherwise expressly stated in this Agreement.

5.1 Under no circumstances, including negligence, will we, our officers, agents or anyone else involved in creating, producing or distributing our service be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use our service. We will further not be liable for results from mistakes, omissions, interruptions, deletions of files, errors, defects, delays and operation, or transmission or failure of performance whether or not limited to acts of nature, communication failure, theft, destruction or unauthorized access to our records, programs or services. You acknowledge that this paragraph shall apply to all content on the Server.

5.2 Your exclusive remedy for all damages, losses and causes of actions whether in contract or tort (including negligence or otherwise) will not (a) exceed the actual dollar amount which you paid during the six-month period prior to the date the cause of action arose, or (b) include any incidental, consequential, extemporary or punitive damages of any kind, including without limitation, loss of data, file, profit, good will, time, savings or revenue.

6.0 Term and Termination. The following describes the effective date, duration and methods of termination of this Agreement:

6.1 Effective Date. The Effective Date of this Agreement is the last date appearing below.

6.2 Duration. This Agreement will commence on the Effective Date and continue on a month-to-month basis, unless two weeks prior notice of cancellation is given.

6.3 Termination for Convenience. Subject to Section 3.3, you may terminate this Agreement at any time for your convenience by providing us with advance written notice. No portion of your payment is refundable under this section.

6.4 Breach or Default. The following constitute a breach or default of this Agreement:

a. your failure to pay the current month's Service Fee by the fifteenth day of the month,

b. your violation of Section 8.0,

c. your violation of 9.2, or

d. your violation of Sections 4.1, 4.2 or 4.3.

6.5 Special Lien on Personal Property. We retain a special lien on all of your personal property in our possession to secure any payment amount you may owe us under this Agreement.

7.0 Ownership Rights. We acknowledge that all right, title and interest in the Client Data shall be solely owned by the Client. We own or have licensed all server software. In the event that we elect, at our option, to provide custom software to you, this software will be licensed to you for use only on our Servers on a non-exclusive, royalty-free, fully-paid basis according to the terms of this Agreement.

8.0 Activities Subject to Immediate Deactivation. Any Server account that is used for illegal, abusive, or unethical activity prohibited in the Acceptable Use Policy ("AUP") may be immediately deactivated by us without warning to you. Deactivation makes the Server and all content on the server inaccessible from the Internet, though it does not terminate the account. You agree to indemnify and hold us harmless from any claim resulting from your publications or use of illegal, abusive, or unethical materials. Although we will make reasonable effort to alert you to such activities and allow you an opportunity to cure them within a 12-hour period after discovery, we are not required to give such notice before deactivating your use of our services if, in our discretion, your use is or results in illegal, abusive, or unethical activities. If a Server account is deactivated, the regular monthly fees still apply until the Server account is canceled or this Agreement is terminated, subject to the terms of this Agreement.

9.0 Miscellaneous.

9.1 Public Nature of Internet. Please understand that all information submitted on the Server shall be considered publicly accessible. Important and private information should be protected by you. For example, we are not liable for protection or privacy of electronic mail or other information transferred through the Internet or any other network provider that you may use.

9.2 Unsolicited Electronic Mail. You are expressly prohibited from sending unsolicited bulk mail messages ("junk mail" or "spam"). This includes, but is not limited to, bulk-mailing of commercial advertising, information announcements, and political tracts. Such material may only be sent to those who have specifically requested it. Malicious or threatening email is also prohibited. Although we will make reasonable efforts to alert you to such activities and allow you an opportunity to cure them within a 12-hour period after discovery, we reserve the right to immediately deactivate your use of our service if we discover such activity. Further, you agree to indemnify and hold us harmless from any claim resulting from your use or distribution of electronic mail services through the service provided through this Agreement.

9.3 Governing Law and Attorneys' Fees. This Agreement will be interpreted and applied in accordance with the laws of the state of California, without regard to the conflicts of law provisions. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees, whether or not a suit is actually filed.

9.4 Control and Ownership of IP. We maintain and control ownership of all IP numbers and addresses that may be assigned to you, and we reserve, in our sole discretion, the right to change or remove any and all IP numbers and addresses.

9.5 Resale of Services and Flow-down of Obligations. You may resell space on your own Servers but you must first obligate any such resale to the same terms of this Agreement and incorporate into that resale all of our rights, including our rights regarding content and activity.

9.6 Age. You certify that you are at least 18 years of age.

9.7 Transfer. You may not transfer or assign this Agreement without the written consent of Studio 32.