NAPSTER

NAPSTER END-USER LICENSE AGREEMENT

IMPORTANT - PLEASE READ THE FOLLOWING END-USER LICENSE AGREEMENT, AS WELL AS THE NAPSTER SUBSCRIPTION SERVICE AND MUSIC STORE TERMS OF USE THAT ARE IMMEDIATELY BELOW IT CAREFULLY BEFORE CONTINUING THE INSTALLATION OR FIRST USE AND ACTIVATION OF THIS SOFTWARE:

This license agreement (“License Agreement”) is a legal agreement between you and Napster, LLC (“Napster”). You are installing and/or accessing and activating pre-installed software and associated materials and documentation that have been created by or for Napster or its suppliers or licensors (collectively the “Software”). You understand that the software includes security components that permit digital information to be protected and use to occur only as permitted by usage rules set by Napster and/or content providers. As such, certain special considerations apply. By installing, copying, or otherwise using the Software, and by accepting any Software updates from time to time, you acknowledge that you have read and understood this License Agreement, and agree to be bound by its terms and conditions. If you do not agree to (or cannot comply with) the terms and conditions of this License Agreement, do not install, copy, and/or use the Software or any Content (as described below).

NOTICE: Napster may from time to time amend, modify, or supplement this License Agreement as it pertains to the Software and Content by posting a copy of such amended, modified, or supplemented license agreement at http://home.napster.com/info/eula.html. Please check that webpage regularly for revisions to this License Agreement. You may provide notice to Napster of any objection to such revised terms within thirty (30) days after they are posted; please send any such objection by email to support@napster.com. You will be deemed to have accepted the amended, modified, or supplemented terms if you thereafter use the Software or Content. All other terms of this License Agreement will continue in effect except as provided in paragraph 11 below.

1. License to Use Software. Subject to the terms and conditions hereof, Napster hereby grants you a limited, nonexclusive, nontransferable, nonsublicensable right to use the Software, as such software has been delivered to you, on a single computer solely as an end user.
2. Updates, Security, and Revocation. Because the Software includes security components, special rules and policies apply. You agree to abide by the rules and policies established from time to time by Napster. Such rules and policies will be applied generally in a nondiscriminatory manner to users of the Software, and may include, for example, required or automated updates, modifications, and/or reinstallations of the Software to address security, interoperability, and/or performance issues. To this end, the Software includes an auto-individualization feature that automatically collects unique system identification information about your computer and may be remotely activated in order to update security components used by the Windows Media Player. These updates, modifications and the like may occur on a periodic or as needed basis without notice to you. In addition, you understand that the Software is capable of monitoring itself for security-related and tamper-detection purposes and communicating information about security incidents. Your copy of the Software and your access to certain applications that communicate with it are subject to restriction and/or revocation (such as being shut down) for security purposes or according to consistently applied Content-protection policies. You understand and agree that this would likely result in Content that was previously available for use being unavailable thereafter.
3. Activation and Privacy Information. By installing the Software and activating it, you consent to the collection and processing of information you are requested to provide during the registration and installation process. All of this information is collected by Napster and handled pursuant to the terms of the Napster Privacy Policy, a copy of which is located at http://home.napster.com/info/privacypolicy.html.
4. Restrictions.
   1. The Software contains and/or embodies copyrighted material, trade secrets, patented (and/or patent pending) inventions and/or other proprietary material and intellectual property of Napster and/or its licensors. All title and ownership rights in the Software remains with Napster and its licensors, as applicable.
   2. In addition to those prohibitions contained elsewhere herein, you agree you will not: (i) rent, lease, loan, sell, copy, or distribute the Software in whole or in part; (ii) use the Software or any portion thereof to create any tool or software product that can be used to create software applications of any nature whatsoever; (iii) remove, alter, cover, obfuscate, and/or otherwise deface any trademarks or notices on the Software; and/or (iv) modify, alter, decompile, disassemble, reverse engineer or emulate the functionality, reverse compile or otherwise reduce to human readable form, or create derivative works of the Software without the prior written consent of Napster or its licensors, as applicable;
   3. You further agree that you shall not tamper with the Software or undertake any activity intended to bypass, modify, defeat or otherwise circumvent (or having the effect of facilitating, modifying, or assisting the bypassing, defeating or circumventing of) proper and/or secure operation of the Software and/or any mechanisms operatively linked to the Software; and
   4. Except as expressly provided by this License Agreement, no other licenses or rights (including rights to maintenance or updates) are granted, expressly, or by implication or estoppel. All rights not expressly granted herein are reserved to Napster and/or its licensors, as applicable.

5. Authorized Use of Napster Content. The Software may enable you to listen to, view, and/or read (as the case may be) music, images, video, text, and other material that may be obtained by or were in some instances, previously provided to you in digital form. This material, collectively “Content,” may be owned by Napster or by third parties. However, in all circumstances, you understand and acknowledge that your rights with respect to Content you obtain for use in connection with the Software (including any Content that may have been preloaded with the Software, to your computer, portable device or a CD or other media provided to you) will be limited by copyright law and by the Usage Rules, as described in the Terms and Conditions of the Napster service, with which authorized copies of the Content are electronically packaged. A copy of the Napster Terms and Conditions, with which you must agree to use the Napster service, is located at http://home.napster.com/info/terms.html. “Usage Rules” are the licensing rules assigned by Napster and/or the pertinent Content owner to Content that limit your access to and use of it. Unauthorized copies of Content (including pirate and other illegal copies) may be electronically packaged with incorrect rules that have not been approved by Napster and/or the Content owner. The Usage Rules approved by Napster and/or the pertinent Content owner in respect of Content shall govern your rights with respect to that Content regardless of whether unauthorized rules have been associated with that Content by another party. The supply of this product does not convey a license nor imply any right to commercially distribute content created or accessed with this product in revenue-generating broadcast systems (terrestrial, satellite, cable and/or other distribution channels), streaming applications (via Internet, intranets and/or other networks), other content distribution systems (pay-audio or audio-on-demand applications and the like) or on physical media (compact discs, digital versatile discs, semiconductor chips, hard drives, memory cards and the like). You may not attempt (or authorize, encourage or support others’ attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with any Usage Rules or Content.

   The Software enables Napster to control your access to Content in accordance with the Usage Rules. Napster (for itself and its Content licensors) reserves the right to use the Software at any time to enforce the Usage Rules with or without notice to you.

6. Customer Care. Napster will provide customer care in connection with the Napster service and the Software as set forth in the Napster Terms and Conditions. Information and frequently asked questions regarding Napster Content and the Software are always available within the Napster service under the “Help” tab or you can contact our Customer Support personnel by sending an email to support@napster.com.
7. Remedies. You acknowledge and agree that any unauthorized use of the Software and/or the technology contained in it would result in irreparable injury to Napster or its licensors, as applicable, for which money damages would be inadequate, and in such event Napster shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief to prevent any such unauthorized use. Nothing contained in this paragraph 7 or elsewhere in this License Agreement shall be construed to limit remedies or relief available pursuant to statutory or other law that Napster or its licensors may have under separate legal authority.
8. Warranties. You expressly acknowledge and agree that the use of the Software is at your own sole risk. THE SOFTWARE HAS BEEN PROVIDED SOLELY, “AS IS” AND WITHOUT WARRANTY OF ANY KIND BY NAPSTER, ITS DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS AND AGENTS (COLLECTIVELY “NAPSTER”); ITS LICENSORS; OR ITS BUSINESS PARTNERS (“PARTNERS”). TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, NAPSTER AND ITS LICENSORS AND PARTNERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY OF NONINFRINGEMENT. THERE IS NO WARRANTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE. NAPSTER AND ITS LICENSORS AND PARTNERS DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE WITH RESPECT TO ITS PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY, CURRENTNESS OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO NAPSTER AND/OR ANY OF ITS LICENSORS OR PARTNERS. THE EXCLUSION OF IMPLIED WARRANTIES IS NOT PERMITTED BY SOME JURISDICTIONS AND THUS, THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.

9. Further Limitation of Liability. In addition to the other provisions hereof, YOU ACKNOWLEDGE TO AND FOR THE BENEFIT OF NAPSTER AND ITS LICENSORS AND PARTNERS THAT THE SOFTWARE, AS WITH MOST SOFTWARE, MAY CONTAIN BUGS AND IS NOT DESIGNED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR PHYSICAL OR ENVIRONMENTAL DAMAGE. NAPSTER AND ITS LICENSORS AND PARTNERS SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY LOSS SUFFERED AS A RESULT OF SUCH A FAILURE OF THE SOFTWARE OR A BREACH OF SECURITY INVOLVING THE SOFTWARE, WHETHER OR NOT SUCH LOSS OR BREACH RESULTS FROM THE DELIBERATE, RECKLESS, OR NEGLIGENT ACTS OF ANY PERSON.

   UNDER NO CIRCUMSTANCES SHALL NAPSTER OR ITS LICENSORS OR PARTNERS BE LIABLE FOR ANY UNAUTHORIZED USE OF ANY CONTENT, OR ANY USE OF THE SOFTWARE TO DEVELOP, DISTRIBUTE, OR USE ANY MATERIAL THAT IS DEFAMATORY, SLANDEROUS, LIBELOUS OR OBSCENE, THAT PORTRAYS ANY PERSON IN A FALSE LIGHT, THAT CONSTITUTES AN INVASION OF ANY RIGHT TO PRIVACY OR AN INFRINGEMENT OF ANY RIGHT TO PUBLICITY, THAT VIOLATES OR INFRINGES ANY THIRD PARTY’S RIGHTS OR THAT VIOLATES ANY FOREIGN, FEDERAL, STATE OR LOCAL STATUTE OR REGULATION.

   IN NO EVENT WILL NAPSTER OR ITS LICENSORS OR PARTNERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF NAPSTER AND/OR ITS LICENSORS AND PARTNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. TO THE EXTENT AS APPLIED IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS WHOLLY PROHIBITED BY APPLICABLE LAW, THEN NAPSTER AND ITS LICENSORS AND PARTNERS SHALL BE ENTITLED TO THE MAXIMUM DISCLAIMERS AND/OR LIMITATIONS ON DAMAGES AND LIABILITY AVAILABLE AT LAW OR IN EQUITY BY SUCH APPLICABLE LAW IN SUCH PARTICULAR CIRCUMSTANCE. NOTWITHSTANDING ANY CONTRARY PROVISIONS, IN NO EVENT SHALL NAPSTER’S LIABILITY TO YOU OR ANY PERSON EXCEED, IN THE AGGREGATE, US$10.

10. Term. Napster may terminate this License Agreement at any time with or without notice. (Napster will only terminate the Napster service to you pursuant to the terms of the Napster Terms and Conditions). This License Agreement is subject to immediate termination, without notice, if you breach any provision hereof; provided that if such termination without notice is expressly prohibited by applicable law, then such termination shall occur based upon notice in the event of any breach. Upon notice from Napster that this License Agreement has been terminated, you must return to Napster (or destroy) all copies of the Software, including any copies or partial copies.
11. Survival. The respective rights and obligations of you and Napster under the provisions of paragraphs 2, 3, 4, 5, 7, 8, 9, 12, 13 and this paragraph 11 shall survive termination of this License Agreement.
12. U.S. Government Restricted Rights and Export Provisions. The Software is “commercial computer software” or “commercial computer software documentation.” The United States Government’s rights with respect to the Software are limited by the terms of this License Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable. In addition, you agree by installing, copying, or otherwise using the Software that: (i) you do not reside in a country subject to embargo or export controls by the U.S. Government; (ii) you are not on the List of Denied Persons as published by the U.S. government; and (iii) you will not use the Software for any illegal purpose. Because the Software and related technical data are subject to United States export controls, you agree that you shall not export or “re-export” (transfer) the Software unless you have complied with all applicable U.S. export controls. You will indemnify and hold Napster and its licensors harmless from and against any liability that may arise from your failure to comply with export control laws and regulations.
13. Miscellaneous Provisions.
    1. Any actions arising out of or in any manner affecting the interpretation of this License Agreement as they pertain to the Software or Content, whether under this License Agreement or otherwise shall be governed solely by, and construed solely in accordance with, the laws of the United States and State of New York, excluding (i) conflict of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. To the extent permitted by law, the provisions of this License Agreement shall supersede any provisions of the Uniform Commercial Code and the Uniform Computer Information Transactions Act as adopted or made applicable to the Software in any competent jurisdiction. As to any dispute, you hereby unconditionally and irrevocably consent to the exclusive jurisdiction of and venue in, as relevant, the state courts of the State of New York and the U.S. District Court for the Southern District of New York (in New York, New York) and irrevocably: (i) waive any objection whatsoever (including any objection with respect to venue) that you may now or hereafter have to the jurisdiction or venue of said courts; and (ii) consent to the service of process of said courts by the mailing of process by registered or certified mail to you, postage prepaid;
    2. If for any reason a court of competent jurisdiction finds any provision or portion of this License Agreement to be unenforceable, such provision or portion shall be enforced to the maximum extent permissible consistent with the terms hereof, and the remainder of this License Agreement shall continue in full force and effect; and
    3. Except as expressly set forth herein, this License Agreement may not be amended, modified, or supplemented by the parties in any manner, except by a written instrument signed by an authorized officer of Napster. No provision hereof shall be deemed waived (by any act or omission) unless such waiver is in a writing signed by an authorized officer of Napster. This License Agreement will bind and inure to the benefit of each party’s successors and assigns, provided that you may not assign or transfer this License Agreement, in whole or in part, without the prior written consent of an authorized officer of Napster. This License Agreement represents the entire agreement between you and Napster with respect to the subject matter hereof and supersedes all prior and/or contemporaneous agreements and understandings, written or oral, between you and Napster with respect to the subject matter hereof.
14. Intellectual Property Notices. The Software is Copyright © 2001-2006 Napster, LLC and its licensors. All rights reserved. U.S. and foreign patents pending. Napster, the Napster design, and the Napster trade dress are trademarks in the U.S. and other countries of Napster, LLC.
15. Third Party Notices. You acknowledge and understand that certain software modules of the Software may contain third party technology. The following describes such third party technology and your rights and licenses therein.
    1. The Software contains an XML parser and a DRM upgrade executable as well as components related to portable device integration, the copyrights in which are owned by Microsoft Corp.; you may use them solely in connection with your use of the Software as permitted herein. The Software contains certain “zlib” components related to compression of XML transactions. The Software contains the Blowfish block cipher, part of the Python Cryptography Toolkit, version 1.0.0, © 1995 A.M. Kuchling; you may use it solely in connection with your use of the Software as permitted herein, unless you receive further authorization directly from the author of it. The Software contains a CD burning module the copyrights in which are owned by Roxio, Inc.; you may use it solely in connection with your use of the Software as permitted herein. The Software also contains certain components related to integration with certain portable devices, the copyrights in which are owned by Samsung Electronics or are otherwise provided under license from Samsung Electronics; you may use these components only as provided herein.

    2. Gracenote Database/Data. The Software contains software from a licensor of Napster, CDDB, Inc. of Berkeley, California d/b/a Gracenote (“Gracenote”). The software from Gracenote (the “Gracenote CDDB2 Client”) enables this application to do online disc identification and obtain music-related information, including name, artist, track, and title information (“Gracenote Data”) from online servers (“Gracenote CDDB Servers”) and to perform other functions. You may use Gracenote Data only by means of the intended end user functions of the Software.

       You agree that You will use Gracenote Data, the Gracenote CDDB2 Client, and Gracenote CDDB Servers for Your own personal non-commercial use only. You agree not to assign, copy, transfer or transmit the Gracenote CDDB2 Client or any Gracenote Data to any third party. YOU AGREE NOT TO USE OR EXPLOIT GRACENOTE DATA, THE GRACENOTE CDDB2 CLIENT, OR GRACENOTE CDDB SERVERS, EXCEPT AS EXPRESSLY PERMITTED HEREIN.

       You agree that your non-exclusive license to use the Gracenote Data, the Gracenote CDDB2 Client, and Gracenote CDDB Servers will terminate if you violate these restrictions. If your license terminates, you agree to cease any and all use of the Gracenote Data, the Gracenote CDDB2 Client, and Gracenote CDDB Servers. Gracenote reserves all rights in Gracenote Data, the Gracenote CDDB2 Client, and the Gracenote CDDB Servers, including all ownership rights. You agree that CDDB, Inc. may enforce its rights under this Agreement against you directly in its own name.

       The Gracenote CDDB2 Client and each item of Gracenote Data are licensed to you “AS IS.” Neither Gracenote nor Napster makes any representations or warranties, express or implied, regarding the accuracy of any Gracenote Data from in the Gracenote CDDB Servers. Gracenote reserves the right to delete data from the Gracenote CDDB Servers or to change data categories for any cause that Gracenote deems sufficient. No warranty is made that the Gracenote CDDB2 Client or Gracenote CDDB Servers are error-free or that functioning of Gracenote CDDB2 Client or Gracenote CDDB Servers will be uninterrupted. Gracenote is not obligated to provide you with any new enhanced or additional data types or categories that Gracenote may choose to provide in the future and is free to discontinue its online services at any time.

       GRACENOTE DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. Gracenote does not warrant the results that will be obtained by Your use of the Gracenote CDDB2 Client or any Gracenote CDDB Server. IN NO CASE WILL GRACENOTE BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR ANY LOST PROFITS OR LOST REVENUES.

    3. MP3 and MP3Pro Codecs. Supply of this product does not convey a license nor imply any right to distribute content created with this product in revenue-generating broadcast systems (terrestrial, satellite, cable and/or other networks), streaming applications (via Internet, intranets, and/or other networks) other content distributions systems (pay-audio or audio-on demand applications and the like) or on physical media (compact discs, digital versatile discs, semiconductor chips, hard drives, memory cards and the like). An independent License for such use is required. For details please visit http://mp3licensing.com.
16. Customer Contacts. If you have any questions regarding this License Agreement, or if you would like to contact Napster for any other reason, write to Napster, 9044 Melrose Avenue, Los Angeles, CA 90069, Attn: General Counsel; or send an email to support@napster.com.