411-SONG: Terms of Service

Effective March 1, 2005

Welcome to 411-SONG! This Terms of Use Agreement (the "Agreement") is a contract between you and NMK, Inc. ("411-SONG") and governs your use of the 411-SONG Website (the "Site"), all Downloads (defined below) and all your activity on the Messaging Systems (defined below) and the 411-SONG Website through your account, established by a user name password and other required information (collectively, the "Service"). The 411-SONG Website means this Site, as accessed by any of the following domain names: 411-SONG.COM, SONGLINX.COM, SONG-LINK.COM and SONGLINKED.COM; however, the 411-SONG Website does not refer to any other web site linked to or from this Site. By completing the registration process and accepting this Agreement, you represent that (i) you have read and understood this Agreement and agree to be bound by its terms and conditions and (ii) you are at least 18 years of age. If you do not agree to be bound by (or cannot comply with) any of the terms and conditions of this Agreement, do not check the acceptance box below and do not continue the registration process or attempt to access the Service.

I. NOTICE

411-SONG may, from time to time, amend, supplement or modify the terms of this Agreement, and will post a copy of such amended Agreement at http://www.411SONG.com/terms.aspx. If you do not agree to be bound by (or cannot comply with) the Agreement as amended, your only remedy is to cancel your 411-SONG subscription and/or account. You will be deemed to have accepted the Agreement as amended thirty days after the amended agreement is posted or if you continue to use the Service after such posting; all other terms of this Agreement will continue in effect.

II. DESCRIPTION OF SERVICE

The Service is available at the Site and includes everything on the Site that may exist from time to time. Part of the Service makes available to you downloadable mobile entertainment, such as ringtones, games and graphics (collectively, the "Downloads"). Once properly registered and after making proper payment, you will be permitted to download to compatible wireless telephones and other compatible devices certain Downloads through the Service. Through the Service, you will also be able to create identified-song lists, sample streaming versions of certain Downloads and send messages, content and information to other members, subscribers and third parties through one or more means (the "Messaging Systems").

III. YOUR REGISTRATION OBLIGATIONS

In order to use the Service, you must register and provide certain information (e.g., name, country or territory of residence and billing information) to 411-SONG ("Registration Data"). You agree to provide current, complete and accurate Registration Data at the time you register and that you will update your Registration Data as necessary to keep it current, complete and accurate in the "My Account" area of the 411-SONG Website. 411-SONG will use your Registration Data in accordance with its privacy policy, which you can review at http://www.411SONG.com/Privacy.aspx (the "Privacy Policy"). Please review this Privacy Policy before you complete the registration process or attempt to use or access the Service.

You are responsible to maintain the confidentiality of your password and you agree that you will not allow others to use your member name, password and/or account. You agree to immediately notify us of any unauthorized use of your registration, user account or password. You agree to indemnify and hold 411-SONG, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, harmless for any improper, unauthorized or illegal uses of your member name, password and/or your account. This includes illegal, unauthorized or improper use by anyone to whom you have given permission to use your member name, password and/or account.

IV. USE OF SERVICE

A. Service. You may use the Service only in accordance with the terms and conditions of this Agreement, as may be amended from time to time, as well as any additional terms that may be presented in connection with any particular feature or function of the Service from time to time.

The Service is for your personal use. You understand and agree that you may not transmit or re-transmit, broadcast or re-broadcast or make any commercial use of the Service, including the Downloads. For example, you may not copy or distribute the Service or the Downloads in any manner not expressly authorized by the Service.

You shall not interfere with anyone else's use and enjoyment of the Site or the Service. You may not attempt (or authorize, encourage or support others' attempts) to circumvent, reverse engineer, decrypt, break or otherwise alter or interfere with the Service, including the Downloads. You agree to advise 411-SONG promptly of any such unauthorized use(s) or attempt(s).

You agree that we may, at any time, and at our sole discretion, terminate this Agreement without prior notice to you for violating any of the provisions set forth herein. In addition, you acknowledge and agree that we will cooperate fully with investigations of the violations of systems or network security at the other web sites, including cooperating with law enforcement authorities in investigating suspected criminal investigations.

B. Downloads. You understand and acknowledge that the Downloads made available as part of the Service are owned by 411-SONG, its business partners, affiliates and/or licensors, as applicable, and are protected by intellectual property laws. 411-SONG grants you a limited, non-exclusive, non-transferable, revocable limited right to download the Downloads to your compatible device solely for your own private, non-commercial use subject to the terms of this Agreement. You understand and agree that you may not download, reproduce, modify, display, perform, transfer, distribute or otherwise use the Downloads except as expressly provided in this Agreement. You understand and agree that you may not authorize, encourage or allow any Downloads used or obtained by you to be reproduced, modified, displayed, performed, transferred, distributed or otherwise used by any other party, and you agree that you will take all reasonable steps to prevent any unauthorized reproduction and/or other use of them.

C. Loss of Rights by 411-SONG. The Service's rights to make certain Downloads available to you may expire. In such event, 411-SONG will not deliver to you the right necessary to play back any such Downloads after the end of the period in which such rights expire. If 411-SONG ceases making any such rights available, 411-SONG will not refund any portion of your fees, but you may contact customer support to receive appropriate replacement rights.

D. Customer Support. Please direct any questions concerning the Service or any other 411-SONG-related issue to a 411-SONG customer service representative by e-mail at: support@songlinkd.com.

V. CHARGES / BILLING

A. Agreement to Pay. By completing the registration process, you authorize 411-SONG to charge the appropriate fees to your designated credit card or directly to your mobile telephone invoice, as selected by you. If any of your billing information changes (e.g., new credit card number, new address or email address, new phone number or service, etc.), you must update that information in the "My Account" area of the 411-SONG Website. If you cancel your account or subscription for any reason, 411-SONG will not refund any of your fees paid to date.

If for any reason, your credit card company refuses to pay the amount billed, or in the event that your mobile telephone service refuses to pay, you agree that we may, at our option, immediately suspend or terminate this Agreement and require you to pay such amount by other means acceptable to us. We may charge a fee for reinstatement of suspended or terminated accounts. You agree that until your subscription to the Service is terminated, you will continue to accrue charges for which you remain responsible, even if you do not use the Service. In the event that legal action is necessary to collect any balances due and owing, you agree to reimburse us for all expenses incurred to recover sums due, including attorneys' fees and other legal expenses.

B. Right to Change Fees. All fees are subject to change upon notice from 411-SONG. 411-SONG will provide you with reasonable notice of such change. If you do not accept the new fees (which will be applicable on a prospective basis only), you will have 10 days from such notice to cancel your subscription and/or your account.

C. Taxes. 411-SONG reserves its right to collect applicable taxes and impose premium surcharges for certain features of the Service based on applicable laws and statutes.

D. Electronic Contracts. 411-SONG may include in the Service the ability for you to make electronic purchases. You acknowledge and agree that any submissions you make for electronic purchases constitute your intent and agreement to be bound by the terms of and to pay for such purchases. You may withdraw your consent to enter into such electronic agreements by giving written notice to 411-SONG, but if you do so, you will not thereafter be able to make any electronic purchase(s). To the extent that such electronic purchases are offered to you by a third party, you acknowledge that 411-SONG shall not be responsible or liable for the products or services purchased. The provisions of this paragraph do not apply to your agreement and arrangements to pay fees to 411-SONG for Downloads; that arrangement is addressed in the Agreement to Pay section herein.

VI. OBJECTIONABLE OR EXPLICIT CONTENT

411-SONG is not responsible for any content or materials constituting all or part of any Download or any other aspect of the Service that you might find objectionable.

VII. INTERNATIONAL CONSIDERATIONS

Currently, the Service is only available to residents of the United States and Canada. You understand and acknowledge that you may not sign up for, access, or attempt to access or use the Service from countries outside of the U.S. and Canada. You agree to abide by U.S., Canadian and other applicable export control laws and not to transfer, by electronic transmission, or any other manner, any content or software subject to restrictions under such laws to a national destination or person prohibited under such laws.

VIII. PRIVACY

For additional information regarding the use of personal information collected in connection with the Service, please refer to the 411-SONG Privacy Policy, a copy of which is available at http://www.411SONG.com/Privacy.aspx

IX. COPYRIGHT INFORMATION

A. General. The Service, including without limitation, the Downloads, and portions of them, may contain or comprise trademarked, patented, copyrighted and/or proprietary subject matter. Your rights with respect to your use of the same are governed by all the terms and conditions of this Agreement, all applicable laws, including but not limited to intellectual property laws, and any applicable end-user license agreements. For the avoidance of doubt, your use of the Service and the Downloads is under license; you acknowledge and agree that you will not obtain any ownership interest in the Service, including without limitation the Downloads, through this Agreement or otherwise.

B. Notices. 411-SONG respects the intellectual property rights of others, and it expects you to do the same. If you know of or suspect that any use of the Service or the Downloads constitutes copyright infringement, please send a notice to 411-SONG customer service email to support@songlinkd.com. The notice must contain the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on the copyright owner's behalf; (ii) description of the copyrighted work(s) that is/are allegedly being infringed; (iii) the location of the allegedly infringed work(s); (iv) your current contact information (e.g. address, phone number, and email address); (v) a statement that you have a "good faith belief" that the use of the complained-of copyrighted work(s) is not authorized by the copyright owner, its agent, or the law; and (vi) a statement by you signed under penalty of perjury that all the information you provide in the notice is accurate and that you are the copyright owner or a person authorized to act on the copyright owner's behalf (all of this collectively is a "Notice").

X. TRADEMARK

All trademarks, service marks, trade names, domain names, slogans, logos, and other indicia of origin that appear on or in connection with the Service (the "Marks") are the property of 411-SONG and/or its affiliates, licensors and/or licensees. You may not copy, display or use any of these Marks without prior written permission of the Mark's owner.

XI. VIOLATION OF INTELLECTUAL PROPERTY RIGHTS

If 411-SONG (A) receives a Notice alleging that you have engaged in infringing behavior or (B) reasonably suspects that your use of the Service or the Downloads violates 411-SONG or others' intellectual property rights, 411-SONG may, in its sole discretion, suspend or terminate your account with or without notice to you. If 411-SONG suspends or terminates your account under this paragraph, it shall have no liability or responsibility to you, and 411-SONG will not refund any portion of your fees charged to date.

XII. NO RESALE

In addition to the restrictions set forth herein, you acknowledge and agree that you may not copy, distribute, sell, resell or exploit for any commercial purposes, any portion of the Service (or any Downloads accessible on or through the Service), or your user name or password.

XIII. PROMOTIONS AND ADVERTISING

411-SONG and/or its business partners may present advertisements and promotional materials on or through the Service. Your participation in any 411-SONG promotional event is subject to the terms and conditions associated with that event. Your correspondence or business dealings with, or participation in promotions of, any third-party advertisers on or through the Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third-party. You acknowledge and agree that neither 411-SONG nor its business partners shall be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such third parties on the Service.

XIV. LINKS TO THIRD-PARTY SITES

The Service may present links to retailers and/or other third-party websites not owned or operated by 411-SONG. These links are provided only as a convenience to you. Neither 411-SONG nor its business partners are responsible for the availability of these outside sites or their contents, including without imitation, their accuracy, copyright compliancy, legality and decency. The inclusion of any link on the Site does not imply endorsement of, or association with, the site or party by us, or any warranty of any kind, either express or implied. You acknowledge and agree that neither 411-SONG nor its business partners are responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of or reliance on any content of any such site or goods or services available through any such site. You should direct any concerns regarding these third-party sites to those sites' administrators.

XV. MODIFICATIONS TO SERVICE

411-SONG reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice to you. You agree that neither 411-SONG nor its affiliates or licensors shall be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

XVI. REMEDIES

You understand and agree that any unauthorized use of the Service, including without limitation, the Downloads would result in irreparable injury to 411-SONG and/or its affiliates or licensors for which money damages would be inadequate, and in such event 411-SONG its affiliates and/or licensors, as applicable, shall have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief against you. Nothing contained in this paragraph or elsewhere in this Agreement shall be construed to limit remedies or relief available pursuant to statutory or other claims that 411-SONG, its affiliates and/or licensors may have under separate legal authority, including but not limited to, any claim for intellectual property infringement.

XVII. INDEMNITY

You agree to indemnify and hold harmless 411-SONG and its agents, employees, representatives, licensors, affiliates, parents and subsidiaries (the "Indemnities") from and against any and all claims, actions, demands, causes of action and other proceedings arising from or concerning your use of the Service, including without limitation, the Downloads (collectively "Claims"), and to reimburse such Indemnities on demand for any losses, costs, judgments, fees, fines and other expenses they incur (including attorneys' fees and court costs) as a result of any Claims. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you upon written notice, in which event you will cooperate with us in asserting available defenses.

XVIII. TERMINATION, CANCELLATION AND PLAN CHANGES

411-SONG may in its sole discretion terminate this Agreement or suspend your account at any time with or without notice to you for any reason or no reason, including, without limitation, in the event that you breach (or 411-SONG reasonably suspects that you have breached) any provision of this Agreement. If 411-SONG terminates this Agreement, or suspends your account for any of the reasons set forth in this paragraph, it shall have no liability or responsibility to you, and 411-SONG will not refund any portion of your fees. You understand and agree that your cancellation of your account is your sole right and remedy with respect to any dispute with 411-SONG. This includes, but is not limited to, any dispute related to or arising out of: (A) any term of this Agreement or 411-SONG enforcement or application of the same; (B) any policy or practice of 411-SONG, including its Privacy Policy, or its enforcement or application of these policies; (C) the Downloads; (D) your use of and/or ability to access and use the Service; and (E) the amount or type of fees, surcharges, applicable taxes, billing methods, or any change to the fees, applicable taxes, surcharges or billing methods. You can cancel your account by delivering notice to 411-SONG at support@songlinkd.com. 411-SONG will send you an email confirming the cancellation.

In the event that your account is terminated or canceled, 411-SONG will not refund any fees.

XIX. NO WARRANTIES/REPRESENTATIONS

You understand and agree that your use of the Service and the Downloads is at your own sole risk. THE SERVICE INCLUDING WITHOUT LIMITATION THE DOWNLOADS ARE PROVIDED "AS IS" AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND BY 411-SONG OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS (THE "411-SONG ENTITIES"), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, 411-SONG AND THE 411-SONG ENTITIES, AS APPLICABLE, EXPRESSLY DISCLAIM ALL REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OR REPRESENTATION OF NONINFRINGEMENT. THERE IS NO REPRESENTATION OR WARRANTY THAT THE SERVICE OR THE DOWNLOADS WILL MEET YOUR REQUIREMENTS, OR ANY WARRANTY OR REPRESENTATION THAT THE SERVICE OR YOUR ACCESS WILL BE ERROR FREE, PROVIDED IN AN UNINTERRUPTED FASHION OR COMPATIBLE WITH ANY PARTICULAR PLATFORM. 411-SONG AND/OR THE 411-SONG ENTITIES, AS APPLICABLE, DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE OR THE DOWNLOADS WITH RESPECT TO PERFORMANCE, SOUND QUALITY, ACCURACY, RELIABILITY, SECURITY CAPABILITY, AVAILABILITY, CURRENTNESS OR OTHERWISE. YOU WILL NOT HOLD 411-SONG AND/OR THE 411-SONG ENTITIES, AS APPLICABLE, RESPONSIBLE FOR ANY DAMAGES OF ANY KIND THAT RESULT FROM YOU ACCESSING THE SERVICE OR USING THE SERVICE, AND/OR THE DOWNLOADS INCLUDING, BUT NOT LIMITED TO, ANY INFECTIONS OR CONTAMINATIONS OF YOUR DEVICES YOU USE TO ACCESS THE SAME OR TO TRANSFER DOWNLOADS THAT MAY RESULT FROM THAT USE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO 411-SONG AND/OR THE 411-SONG ENTITIES AS APPLICABLE.

XX. LIMITATIONS ON LIABILITY

IN NO EVENT SHALL 411-SONG AND/OR THE 411-SONG ENTITIES AS APPLICABLE, BE LIABLE FOR ANY UNAUTHORIZED USE OF THE SERVICE INCLUDING WITHOUT LIMITATION THE DOWNLOADS.

IN NO EVENT SHALL 411-SONG AND/OR THE 411-SONG ENTITIES AS APPLICABLE, BE LIABLE FOR ANY LOST PROFITS, OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, LOST REVENUE OR PENALTIES (INCLUDING WITHOUT LIMITATION LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR LOSS OR DAMAGE TO DATA AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE AND/OR THE DOWNLOADS OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF 411-SONG AND/OR THE 411-SONG ENTITIES AS APPLICABLE, 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 THAT IN A PARTICULAR CIRCUMSTANCE ANY DISCLAIMER OR LIMITATION ON DAMAGES OR LIABILITY SET FORTH HEREIN IS PROHIBITED BY APPLICABLE LAW, THEN, INSTEAD OF THE PROVISIONS HEREOF IN SUCH PARTICULAR CIRCUMSTANCE, 411-SONG AND/OR THE 411-SONG ENTITIES AS APPLICABLE, 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, AND IN NO EVENT SHALL SUCH DAMAGES OR LIABILITY EXCEED $100. THE PARTIES UNDERSTAND AND AGREE THAT 411-SONG'S AND/OR THE 411-SONG ENTITIES' LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICE IS LIMITED TO THE TOTAL FEES RECEIVED BY 411-SONG AND/OR THE 411-SONG ENTITIES FROM YOU IN THE PREVIOUS TWELVE MONTHS PURSUANT TO THIS AGREEMENT.

XXI. LAW AND LEGAL NOTICES

This Agreement and any other terms or documents referred to herein represent your entire agreement with 411-SONG with respect to your use of the Service.

This Agreement supersedes all prior agreements and understandings between us. This Agreement may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplant or amend this Agreement or to enter an order for products or services which are subject to additional or altered terms and conditions shall be null and void, unless otherwise agreed to in a written agreement signed by you and us.

You understand and agree that, except as expressly set forth herein, this Agreement is not intended to confer and does not confer any rights or remedies upon any person other than the parties to this Agreement.

If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.

The failure of 411-SONG to pursue any available claim or defense pursuant to this Agreement or otherwise will not be a waiver of such claim or defense.

You agree that without regard to any statute of limitation or contrary law that any claim or cause of action arising out of the Site or the Service must be filed within one (1) year after such claim or cause arose or the claim shall be forever barred.

The headings used in this Agreement are for convenience only, and will have no effect on the interpretation or legal enforceability of the terms herein.

The laws of the State of New York, excluding its conflicts-of-law rules, govern this Agreement and your use of the Service, including without limitation the Downloads.

You expressly agree that the courts in the State of New York, New York County have exclusive jurisdiction over any claim or dispute with 411-SONG or relating in any way to your account or your use of the Service including without limitation the Downloads.

You further agree and expressly consent to personal jurisdiction over you in the federal and state courts of New York County in connection with any such dispute including any claim involving 411-SONG or its partners, parents, licensors, affiliates, subsidiaries, employees, contractors, officers, directors or suppliers.

We may, at our sole discretion, assign our rights and obligations under this Agreement and we shall be relieved of any further obligations. In addition, we shall be excused from liability for nondelivery or delay in delivery of products and services available through our Site arising from any event beyond our reasonable control, whether or not foreseeable by either party; including but not limited to, labor disturbance, war, fire, accidental, failure of the world wide web, adverse weather, inability to secure transportation, governmental act or regulation, and other causes or events beyond our reasonable control, whether or not similar to those which are enumerated above.

XXII. CONTACT INFORMATION

Except as explicitly noted on this Site, the Services available through this Site are offered by NMK, Inc., a Delaware corporation, located at 14 Wall Street - 11th Floor, New York, NY 10005. If you notice that any user is violating this Agreement please contact us by telephone at 212-349-2228.