BEATNIK XTRA VERSION 1.2 LICENSE AGREEMENT IMPORTANT --- READ CAREFULLY!!! BEFORE YOU USE THIS SOFTWARE, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY USING THIS SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT AS A LICENSEE. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, TERMINATE THIS INSTALLATION PROCESS: OR, IF THE SOFTWARE IS ALREADY INSTALLED, DO NOT USE IT. This "Version 1.2 Licensing Agreement" is entered into between BEATNIK, INC. ('Beatnik') and the Licensee of Beatnik's Beatnik Xtra version 1.2 (the 'Software'). Your Rights. Beatnik grants to the Licensee a non-exclusive,non-sublicensable, license to use this version of the Software, in binary executable form. License to Develop: Subject to the provisions contained herein,Beatnik hereby grants Licensee a limited, non-exclusive,nontransferable, royalty-free license to install and use the Software. Licensee shall use the Software on only a single computer or on a computer network providing that each person accessing the Software is made aware of the provisions of this license before using the Software. Licensee may make a single copy of the Software for back-up and archival purposes only, provided that any copy must contain all proprietary notices included in the original. Licensee may download the online Documentation for the purposes of using the Software but may not make further copies of the Documentation. Beatnik hereby grants Licensee a limited, non-exclusive, non-transferable, royalty free license to install, use and distribute the Content within the Software; provided, however, that the Beatnik logo is applied to any physical products that ship with the Content. Beatnik hereby grants Licensee a limited, non-exclusive, non-transferable license to distribute the Software to viewers of their content for the sole purpose of playing back the Content created with the Software, whether on the Web, or on physical media such as a CD-Rom or enhanced CD. Beatnik grants Licensee a limited, non-exclusive, nontransferable, royalty free license to use Beatnik trademarks and logos applicable to the Product in connection with the activities contemplated under this Agreement and in the same style and manner as currently used by Beatnik in its materials or as amended in writing by Beatnik from time to time. Licensee's right and license to use Beatnik trademarks and logos are expressly conditioned upon Licensee furnishing Beatnik with samples of such proposed trademark usage and obtaining Beatnik's prior consent to such usage or compliance with Beatnik's trademark usage guidelines, which Beatnik may communicate in writing from time to time. Licensee shall not be deemed, by anything contained in or done pursuant to this Agreement to acquire any right, title, or interest in any trademark, copyright patent or other intellectual property of Beatnik, and shall do nothing to prejudice the value or validity of the respective owner's rights therein or ownership thereof. Limitations: Licensee is prohibited from selling the Software in any manner. Licensee shall not sublicense, assign, rent, lease or otherwise transfer any of its rights in the Software or in this Agreement,without the express written approval of Beatnik. Beatnik is the owner of all right, title and interest in and to the Software. The Software is protected by the copyright laws of the United States and international copyright conventions and treaties. Beatnik reserves all rights in the Software and its other software and technology except as specifically licensed to Licensee herein.Except as expressly provided herein, Licensee shall not copy, modify, reproduce, display, decompile, reverse engineer, store, translate,sell, lease or otherwise transfer, distribute the Software, in whole or in part, nor may Licensee use the Software with the intent to clone any proprietary product to Beatnik. All rights not specifically granted herein to Licensee are reserved to Beatnik. Product Maintenance: Beatnik is not obligated to provide maintenance or updates to Licensee for the Software. However, any maintenance or updates provided by Beatnik shall be covered by this Agreement, unless expressly subject to the terms of another agreement to which Beatnik is a party. DISCLAIMER OF WARRANTY: PRODUCT IS DEEMED ACCEPTED BY LICENSEE UPON IT'S USE BY LICENSEE. THE PRODUCT IS PROVIDED TO LICENSEE AS IS, WITHOUT WARRANTY OF ANY KIND; TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BEATNIK FURTHER DISCLAIMS ALL WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON INFRINGEMENT. THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCT AND DOCUMENTATION REMAINS WITH LICENSEE. IN NO EVENT SHALL BEATNIK OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCT, EVEN IF BEATNIK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BEATNIK DOES NOT WARRANT THAT THE SOFTWARE DOES NOT INCLUDE ANY VIRUS, SOFTWARE ROUTINE OR OTHER SOFTWARE DESIGNED TO RESTRICT UNAUTHORIZED ACCESS; OR TO DISABLE, ERASE OR OTHERWISE HARM SOFTWARE, HARDWARE, OR DATA; OR TO PERFORM ANY OTHER SUCH ACTIONS. Indemnification: Beatnik will not have any liability to Licensee for, and Licensee will defend and hold Beatnik harmless against, any claim, expense, judgment, liability, or loss (including attorneys' fees and expert witnesses' expenses) based on Licensee's use of any Content, arising from any intellectual property claim (including patent, trademark, copyright, or trade secret infringement), any right of publicity or privacy claim, or any defamation or unfair competition claim. Rights Notices. Deleted No Joint Venture. Nothing contained in this Agreement should be construed as creating a joint venture, partnership or employment relationship between Licensee and Beatnik nor will either party have the right, power or authority to create any obligation or duty, express or implied, on behalf of the other party. Assignment. Licensee may neither assign any of its rights under this Agreement nor delegate its duties hereunder to another person or legal entity without the prior written consent of Beatnik, which consent may be withheld for any reason. This Agreement inures to the benefit of and is binding upon Licensee and Beatnik, their respective trustees, successors, permitted assigns and legal representatives. Termination. Without prejudice to any other rights, Beatnik may terminate this Agreement if Licensee fails to comply with the terms and conditions herein. Upon termination of this Agreement, Licensee shall immediately discontinue the use of the Software and shall within ten (10) days either return to Beatnik, or certify destruction of, all full or partial copies of the Software, Documentation and related materials provided by Beatnik. Licensee may also terminate this Agreement at any time by destroying the Software and Documentation and all copies thereof. The provisions of sections 2,3,4,5,6,7,8,9 10 and 13 shall survive any termination of this Agreement. Governing Law; Jurisdiction. Licensee and Beatnik agree that the laws of the State of California govern the interpretation and enforcement of this Agreement, without giving effect to that State's choice of law rules. Any and all disputes between the parties that may arise pursuant to this Agreement will be heard and determined before an appropriate state or federal court located in San Mateo County, California. This Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. Attorney's Fees to Prevailing Party. In the event of any litigation or other proceedings (including proceedings in bankruptcy) concerning or related to this Agreement, the prevailing party is entitled to recover its actual attorneys' fees and expenses incurred inconnection with such proceedings. Notices. All notices to Beatnik must be in writing, sent by certified or registered air mail with postage prepaid, return receipt requested, by facsimile, telex or cable communication, or by hand delivery. Such communications will be deemed given and received upon dispatch, if sent and received by facsimile, telex, or cable communication; or upon delivery if hand delivered; or within 5 daysof mailing, if sent and delivered by certified or registered mail,and must be addressed as set forth below, or to such other addresses as Beatnik may designate in writing from time to time. Beatnik, Inc. 2600 S El Camino Real San Mateo, CA 94403 Attn: Customer Service Fax (650) 295-2333 To receive a copy of this agreement via electronic mail 'email', please send your request to info@beatnik.com Entire Agreement. This Agreement contains the full understanding of the parties and supersedes all prior or contemporaneous agreementsand understandings between the parties with respect to its subject matter, and there are no representations, warranties, agreements or understandings other than those expressly contained herein. No alteration, modification, variation or waiver of this Agreement or any of the provisions hereof, whether by agreement of the parties or by custom, course of dealing or trade practice, will be effective unless either executed by both parties in writing. Licenses with entities other than Beatnik shall not alter the terms and conditions of this Agreement. U.S. Government Restricted Rights and Export Restrictions: Use, duplication or disclosure by the Government is subject to restrictions as set forth in subparagraph (c) (1) (ii) of The Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraphs (c)(i) and (s) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Beatnik, Inc., 217 South B Street, San Mateo, CA 94401. Licensee acknowledges that none of the Software or underlying information or technology may be download or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Yugoslavia (Serbia and Montenegro), North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods: or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S Commerce Department's Table of Denial Orders.By using the Software you are agreeing to the foregoing and you are representing and warranting that you are not located in, or under the control of a national or resident of, any such country or on any such list.