Soundflavor, Inc.

Terms of Service

September 4, 2007

Acceptance of Terms

Soundflavor, Inc. provides its products and services to you subject to the following Terms of Service (the “TOS”). Soundflavor, Inc. reserves the right, at its sole discretion, to modify or replace the TOS at any time, without notice to you. You can review the most current version of the TOS at any time at: http://www.soundflavor.com/about/tos.php. In addition, when using particular Soundflavor, Inc. owned or operated services, you and Soundflavor, Inc. shall be subject to any posted guidelines or rules applicable to such services, which may be posted from time to time. All such guidelines or rules are hereby incorporated by reference into the TOS. Soundflavor, Inc. may also offer other services that are governed by different TOS.

Description of Service

Soundflavor DJ is a downloadable “Personal DJ” software application that provides automatic playlist generation and DJ capabilities for music consumers. A “Soundflavor Video Jukebox” is a standalone web-based representation of playlist, including a player that enables streaming playback of hyperlinks to the media files hosted on the Internet that are included in the playlist, created by users of Soundflavor DJ and Soundflavor.com for the purpose of posting playlists that they create to third party web sites and blogs. Soundflavor.com is an information location tool and social networking web site that provides an integrated set of services to enable users to (i) locate hyperlinks for: (a) promotional clips for songs that are provided by Soundflavor under license by third party partner(s), (b) promotional full-length songs that are provided by Soundflavor directly, or under license by third party partner(s), and/or (c) multimedia files such as music videos, artist photos, and artist biographies hosted on web sites controlled by third parties for promotional or other legal purposes; (ii) optionally stream those licensed and/or legally posted music and multimedia files using Soundflavor's various music players and the Soundflavor Video Jukebox; (iii) publish a series of hyperlinks to multimedia content to form playlists on Soundflavor.com; (iv) share those playlists with other people by embedding the Soundflavor Video Jukebox on third party web page, where permitted; (v) discover and purchase music found using the Soundflavor search engine or while browsing other members‘ playlists; (vi) obtain current information on the popularity of songs as measured by frequency of appearance on other members‘ playlists; and (vii) network with other members through a variety of social networking and communications tools. The aforementioned products, including other Soundflavor software, web sites, content (including content created by Soundflavor, its affiliates or partners, and submitted by its users), related documentation, information on the Soundflavor domain, and information made available by users to each other on the Internet through Soundflavor products (collectively, the “Service”), are owned and operated by Soundflavor, Inc., a Delaware corporation, and/or wholly-owned subsidiaries (collectively, “Soundflavor”). Please note that Soundflavor's search engine, and/or playlists created on Soundflavor.com and/or included in the Soundflavor Video Jukebox, may include hyperlinks to multimedia files hosted on the Internet by third parties. Such multimedia files, and the third party services that host these multimedia files, are not owned or operated by Soundflavor and are thus not part of the Service. The Service is accessed by you under the TOS described below (“TOS”).

PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICE. BY ACCESSING THE SERVICE, YOU AGREE TO BECOME BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS, THEN YOU MAY NOT ACCESS THE SERVICE. SOUNDFLAVOR‘S ACCEPTANCE IS EXPRESSLY CONDITIONED UPON YOUR ASSENT TO ALL OF THESE TERMS AND CONDITIONS, TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS AND CONDITIONS ARE CONSIDERED AN OFFER BY SOUNDFLAVOR, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

Soundflavor may change, suspend or discontinue the Service at any time, including the availability of any feature or content. Soundflavor may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability.

Your Obligations

As a condition to using portions of the Service, you represent that you are of legal age to form a binding contract and are not a person barred from receiving the Service under the laws of the United States or other applicable jurisdiction. You are required to register with Soundflavor and select a password and nickname ("Soundflavor User ID”). You shall provide Soundflavor with accurate, complete, and updated registration information. Failure to do so shall constitute a breach of the TOS, which may result in immediate termination of your Soundflavor account. You may not (i) select or use as a Soundflavor User ID a name of another person with the intent to impersonate that person; (ii) use as a Soundflavor User ID a name subject to any rights of a person other than you without appropriate authorization; or (iii) use as a Soundflavor User ID a name that is otherwise offensive, vulgar or obscene. Soundflavor reserves the right to refuse registration of, or cancel a Soundflavor User ID in its discretion. You shall be responsible for maintaining the confidentiality of your Soundflavor password.

The Service is available only to individuals who are at least 13 years old, whether acting on their own behalf or as an authorized employee or representative of a corporation or other business entity. If you do not so qualify, do not attempt to register for or use the Service.

User Conduct. As a condition of use, you promise not to use the Service for any purpose that is unlawful or prohibited by these TOS, or any other purpose not reasonably intended by Soundflavor. By way of example, and not as a limitation, you agree not to use the Services:

1. To abuse, harass, threaten, impersonate or intimidate other Soundflavor users;
2. To contribute any Content that is infringing, libelous, defamatory, obscene, pornographic, abusive, offensive or otherwise violates any law or right of any third party;
3. For any illegal or unauthorized purpose. If you are an international user, you agree to comply with all local laws regarding online conduct and acceptable content;
4. To post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any Soundflavor user;
5. To create or submit unwanted e-mail or other messages (“Spam”) to any other Soundflavor users or any URL;
6. To violate any laws in your jurisdiction (including but not limited to copyright laws);
7. To take any action that (i) imposes, or may impose in our sole discretion an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (iii) bypass any measures we may use to prevent or restrict access to the Service;
8. With the intention of artificially inflating or altering the play count, download count, recommendation count, comments, or any other Soundflavor service, including by way of creating separate user accounts for the purpose of artificially altering Soundflavor‘s services; giving or receiving money or other remuneration in exchange for recommendations or positive or negative ratings; or participating in any other organized effort that in any way artificially alters the results of Soundflavor‘s services.

Soundflavor Video Jukebox Usage. As a condition of use, you agree that you will not modify, hide, obfuscate, or otherwise prevent any portion of any Soundflavor Video Jukebox that you choose to embed in MySpace, any other web site, or any other location that supports embedding the Soundflavor Video Jukebox, from being displayed in full, including, but not limited to: a) Artist names, album covers, or song titles displayed by the Video Jukebox (these items facilitate the discovery and legal purchase of artists' work); and b) the play button, playlist name, Soundflavor logo, or any of the images that hyperlink to Soundflavor (e.g., “Get Songs”), as may change from time to time. If you do modify, hide, obfuscate, or otherwise prevent any portion of the Soundflavor Video Jukebox from being displayed in full, we reserve the right to delete your Soundflavor Video Jukebox without warning, and/or to terminate your Soundflavor account.

Soundflavor may remove any Content and/or Soundflavor accounts at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such content), or for no reason at all. To report TOS abuse, please e-mail abuse@soundflavor.com

Content Submitted or Made Available for Inclusion on the Service

By uploading, submitting or otherwise disclosing or distributing content of any kind, including playlists, profile information, audio or visual content, comments, or messages, through the Service, you represent and warrant that you own all rights in the Content. If you do post content or submit material, and unless we indicate otherwise, you grant Soundflavor a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant Soundflavor, Inc. and sublicensees the right to use the nickname that you submit in connection with such content, if they choose. You represent and warrant that the content is accurate and that use of the content you supply does not violate this TOS or the Copyright Policy. Soundflavor has the right but not the obligation to monitor and edit or remove any activity or content.

Soundflavor Privacy Policy

Soundflavor‘s current privacy policy is available at http://www.soundflavor.com/about/privacy.php (the “Privacy Policy”), which is incorporated by this reference.

Indemnity

You are responsible for any actions you take while using the Service, and you agree to indemnify and hold harmless Soundflavor, its parents, subsidiaries, affiliates, customers, vendors, officers and employees from any liability, damage or cost (including reasonable attorneys. fees and cost) from any claim or demand made by any third party due to or arising out of your access to or use of the Service, violation of the TOS by you, or the infringement by you, or any third party using your account or Soundflavor User ID, of any intellectual property or other right of any person or entity.

Disclaimers

Soundflavor is not responsible for any incorrect or inaccurate content on or in connection with the Service, whether caused by users of the Service, by employees of the company, or by any of the equipment or programming associated with or utilized in the Service. Content created and submitted by users of the Service may contain hyperlinks to other web sites. Soundflavor is not responsible for the content, accuracy or opinions expressed on such web sites, and such web sites are in no way investigated, monitored or checked for accuracy or completeness by Soundflavor. Inclusion of any linked web site on the Service does not imply approval or endorsement of the linked web site by Soundflavor. When you access these third-party sites, you do so at your own risk. Because Soundflavor has no control over such sites and resources, you acknowledge and agree that Soundflavor is not responsible or liable for any media files, content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Soundflavor shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such media files, content, goods or services available on or through any such site or resource.

Soundflavor takes no responsibility for third party advertisements which are posted through the Service, nor does it take any responsibility for the goods or services provided by its advertisers. Soundflavor is not responsible for the conduct, whether online or offline, of any user of the Service. Soundflavor assumes no responsibility for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any user communication. Soundflavor is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, computer equipment, software, failure of any e-mail or players due to technical problems or traffic congestion on the Internet or on any of the Service or combination thereof, including any injury or damage to any person‘s computer related to or resulting from participation or downloading materials in connection with the Service. Under no circumstances shall Soundflavor be responsible for any loss or damage, including personal injury or death, resulting from use of the Service, attendance at a Soundflavor event, from any Content posted on or through the Service, or from the conduct of any Users of the Service, whether online or offline. The Service is provided “AS-IS” and as available and Soundflavor expressly disclaims any warranty of fitness for a particular purpose or non-infringement. Soundflavor cannot guarantee and does not promise any specific results from use of the Service.

Limitation on Liability

IN NO EVENT SHALL SOUNDFLAVOR BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SERVICE, EVEN IF SOUNDFLAVOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, SOUNDFLAVOR‘S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO SOUNDFLAVOR FOR THE SERVICE DURING THE TERM OF THE AGREEMENT.

Termination

Soundflavor may terminate or suspend any and all services and/or your Soundflavor account immediately, without prior notice or liability, if you breach any of the terms or conditions of the TOS. Upon termination of your account, your right to use the Services will immediately cease. If you wish to terminate your Soundflavor account, you may simply discontinue using the Service. All provisions of the TOS which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

Other

This TOS agreement sets forth the entire understanding and agreement of the parties as to this agreement‘s subject matter and supersedes all prior proposals, discussions or agreements with respect to such subject matter. You agree not to resell, assign, otherwise transfer, or delegate your rights or obligations under the agreement without our prior express written authorization. Notices or communications under this agreement shall be sent by electronic mail or in writing and shall be deemed delivered upon receipt to the party to whom such communication is directed, at the following addresses: (a) if to us, such notices shall be addressed to legal@soundflavor.com, or 2339 3rd Street, 4th Floor, San Francisco, CA 94107, attention: Legal Affairs and (b) if to you, such notices shall be addressed to the electronic address specified when you registered for the Service.

All headings in this TOS agreement are for convenience only and shall have no legal or contractual effect. No agency, partnership, joint venture, or employment is created as a result of the TOS and you do not have any authority of any kind to bind Soundflavor in any respect whatsoever. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Soundflavor shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Soundflavor‘s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation (including “line-noise” interference). This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors and assigns. Each provision of this Agreement shall be severable from every other provision of this Agreement for the purpose of determining the legal enforceability of any specific provision. Soundflavor may transfer, assign or delegate the TOS and its rights and obligations without consent.

The TOS shall be governed by and construed in accordance with the laws of the state of California, as if made within California between two residents thereof, and the parties submit to the exclusive jurisdiction of the Superior Court of San Francisco County and the United States District Court for the Northern District of California. Notwithstanding the foregoing sentence, (but without limiting Soundflavor‘s right to seek injunctive or other equitable relief in any court of competent jurisdiction), any disputes arising with respect to this Agreement shall be referred to an arbitrator affiliated with JAMS. The arbitrator shall be selected by joint agreement of the parties. In the event the parties cannot agree on an arbitrator within thirty (30) days of the initiating party providing the other party with written notice that it plans to seek arbitration, the parties shall each select an arbitrator affiliated with JAMS, which arbitrators shall jointly select a third such arbitrator to resolve the dispute. The written decision of the arbitrator shall be final and binding on the parties. The arbitration proceeding shall be carried on and heard in San Francisco, California using the English language and pursuant to the rules of JAMS. In any action or proceeding to enforce rights under the TOS, the prevailing party will be entitled to recover costs and attorneys‘ fees.

Both parties agree that the TOS is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the TOS, and that all modifications must be in a writing signed by both parties, except as otherwise provided herein.

Trademarks

SOUNDFLAVOR, SOUNDFLAVOR DJ, CHERRY PICKS, FLAVORIZER, and other Soundflavor graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Soundflavor in the United States and/or other countries. Soundflavor‘s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion.