MN OPEN API TERMS OF SERVICE

MUSICNET, INC. D/B/A MEDIANET DIGITAL, INC., A DELAWARE CORPORATION ("MEDIANET") PROVIDES DEVELOPERS AND DISTRIBUTORS ("YOU") WITH ACCESS TO ITS DIGITAL CONTENT SERVICES SUBJECT TO THE FOLLOWING TERMS OF SERVICE ("TOS"). YOU ARE ENCOURAGED TO REVIEW THE TOS ON A REGULAR BASIS TO KEEP YOURSELF CURRENT WITH ANY CHANGES. YOU CAN REVIEW THE MOST CURRENT VERSION OF THIS TOS AT ANYTIME AT: HTTP://WWW.MNDIGITAL.COM/API-TERMS-OF-SERVICE.HTML. BY ACCESSING AND USING THE MEDIANET SERVICE, YOU AGREE AND ACCEPT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS TOS. IF YOU ARE IN A JURISDICTION WHERE USE OF THIS SERVICE IS PROHIBITED, DO NOT USE THIS SERVICE.

IN ADDITION, WHEN USING PARTICULAR MEDIANET OWNED OR OPERATED SERVICES, YOU SHALL BE SUBJECT TO ANY ADDITIONAL TERMS OF SERVICES, POSTED GUIDELINES, OR RULES APPLICABLE TO SUCH SERVICES, WHICH MAY BE POSTED OR PROVIDED TO YOU AND MODIFIED FROM TIME TO TIME. ALL SUCH ADDITIONAL TERMS OF SERVICE, GUIDELINES, AND/OR RULES ARE HEREBY INCORPORATED BY REFERENCE INTO THIS TOS. IF YOU DO NOT AGREE TO THIS TOS OR ANY MODIFICATIONS THERETO, YOUR SOLE RECOURSE IS TO IMMEDIATELY STOP USING THE SERVICES. NOTWITHSTANDING THE FOREGOING, YOUR CONTINUED USE OF THE SERVICES WILL CONSTITUTE ACCEPTANCE THERETO. THIS TOS IS DATED AS OF THE DATE YOU BEGIN USING AND ACCESSING THE MEDIANET SERVICE ("Effective Date").

II. Definitions

  • "MN Open API" means the application programming interface provided by MediaNet, including any related software, technology and materials provided by MediaNet in connection therewith, as modified by MediaNet from time to time in its sole and absolute discretion.
  • "MN Open API Specifications" means all information and documentation MediaNet provides specifying or concerning the MN Open API or Applications (including the MN Open API Guidelines located at http://www.mndigital.com and any other related guidelines and policies), and any MediaNet-supplied implementations or methods of use of the MN Open API.
  • "Application(s)" means a website, web page, software application or program developed by You that makes use of the MN Open API.
  • "Artwork" means all artwork made available through the MediaNet Service, including, without limitation, front cover album artwork (or corresponding artwork for singles and other non-album configurations) for Permanent Downloads and Samples and artist images.
  • "Company Materials" means, collectively, any content, links, functionality, technology and/or other materials provided by You in connection with the Application or this TOS or otherwise owned, operated, marketed or distributed by You, including but not limited to any information, technology and materials provided or used by You hereunder, including, without limitation, all related patents, patent rights, trademarks, service marks, copyrights, works of authorship, trade secrets and other proprietary interests.
  • "Content" means audio, video, data or other content available on the MediaNet Service and/or through the MN Open API, including any Permanent Downloads, Samples and Artwork (as defined herein).
  • "Content Owner" means the entity that owns and/or controls Content.
  • "End User" means a user of the Application.
  • "End User License Agreement" ("EULA") means a legal agreement, which an End User must expressly accept prior to purchasing any Content from the Application.
  • "Marks" means the trade names, trademarks, service marks, logos, domain names and other distinctive brand features of MediaNet, including, without limitation, MediaNet and the MediaNet logo.
  • "MediaNet Materials" means, collectively, any content, links, functionality, technology and/or other materials provided by MediaNet in connection with this TOS or otherwise owned, operated, marketed or distributed by MediaNet, including but not limited to the MediaNet Service, the MN Open API and other information, technology and materials provided or used by MediaNet hereunder, including, without limitation, all related patents, patent rights, trademarks, service marks, copyrights, works of authorship, trade secrets and other proprietary interests.
  • "MediaNet Service" means the MediaNet Permanent Download and Sample service made available through the MN Open API.
  • "Metadata" means information describing and/or identifying the Sound Recordings and accessible by You through the MN Open API, including, without limitation, album title and/or track title, artist name, genre, copyright information, label name, unique product identifiers (e.g., ISRC and UPC), Artwork, explicit lyrics identification, album reviews (if available), biographical information (if available), release date and wholesale pricing.
  • "Permanent Download" (used as a noun) means a non-expiring complete digital copy of a Sound Recording, available on an a la carte basis delivered to End Users.
  • "Retail Price" means the amount charged to each End User for Permanent Downloads made available through the MediaNet Service.
  • "Samples" are thirty (30) second streams of Sound Recordings accessible by the End User through Applications for the purpose of purchasing Permanent Downloads.
  • "Site" means MediaNet’s Website located at http://www.mndigital.com.
  • "Sound Recording(s)" means an audio-only embodiment of performances of musical compositions or spoken-word performances that have been provided to you by MediaNet or You otherwise have the rights to use in accordance with the MediaNet Service.
  • "Territory" means the United States and its territories and possessions.

III. General Conditions of Use

Subject to the provisions in this TOS, during the term hereof, You may use the MediaNet Materials, including, without limitation, the MediaNet Service and the MN Open API, as each are described in the MN Open API Specifications, solely to (i) provide to End Users a Permanent Download and Sample service, (ii) access MediaNet servers through the MN Open API, and (iii) receive information from MediaNet in response to API calls. You acknowledge and agree that the form and nature of the MN Open API and MediaNet Service which MediaNet provides may change from time to time without prior notice to You. MediaNet may, from time to time and at its sole and absolute discretion, make available MN Open API Specifications setting forth additional policies and technical specifications applicable to Your use of the MN Open API. The Application must not violate any policies or technical specifications described in the MN Open API Specifications.

You may stop using the MN Open API at any time, and You do not need to specifically inform MediaNet when You stop using the MN Open API.

In order to access the MN Open API, You may be required to provide information about Yourself (such as identification, contact details or information about the Application) as part of a registration or submission process, or as part of Your continued use of the MN Open API. You agree that any registration information You give to MediaNet will always be accurate, correct and up to date, and You agree to provide MediaNet with prompt written notice of any updates to such registration information, including, without limitation, updates to Your contact information, and updates to the description of the Application and/or location where End Users may access the Application (e.g. URL). You further agree that You will not share with any third party any unique identifier, electronic key, password or any other of Your registration information provided to You by MediaNet.

You agree to use the MN Open API only for purposes that are permitted by (i) the TOS and MN Open API Specifications and (ii) any applicable law, regulation, third-party terms of service, or generally accepted practices or guidelines in the relevant jurisdictions (including any laws regarding the export of data or software to and from the United States or other relevant countries). You will provide any information and/or other materials related to the Applications reasonably requested by MediaNet from time to time to verify Your compliance with this TOS. You acknowledge and agree that MediaNet and/or its licensors may crawl or otherwise monitor the Applications for the purpose of verifying Your compliance with this TOS, provided, however, such crawling and monitoring will not materially interfere with the functionality or performance of the Application. You will not seek to block or otherwise interfere with such crawling or monitoring (and that MediaNet and/or its affiliates or agents may use technical means to overcome any methods used on the Applications to block or interfere with such crawling or monitoring).

You will not provide access to the MediaNet Service outside of the Territory and will use standards customary in the industry to restrict access to or use of the Application to End Users who are located in the Territory. You are not permitted to intentionally market or promote outside the Territory the availability of the Application.

You agree not to access (or attempt to access) the MediaNet Service by any means other than through the interface that is provided by MediaNet, unless You have been specifically allowed to do so in a separate written agreement with MediaNet covering those services. You agree that You will not engage in any activity that interferes with or disrupts the MediaNet Service (or the servers and networks which are connected to the MediaNet Service).

You may not use the MN Open API in any way that MediaNet finds, in its sole discretion, to have the effect of competing with or displacing the market for the MediaNet Service. Unless You have been specifically permitted to do so in a separate written agreement with MediaNet, You agree that You will not reproduce, duplicate, copy, sell, trade or resell the MediaNet Service, the MN Open API or any Content for any purpose, provided, however, such restrictions are not intended to preclude You from offering Permanent Downloads for sale through the Application.

You may not cache or save local copies of any Content or data retrieved through the MN Open API, including without limitation, Permanent Downloads, Samples, Artwork, Metadata, search results and pricing information.

You understand and agree that Your use of the MN Open API may cause You to interact with the products, content or services not operated or controlled by MediaNet, and that MediaNet does not represent or endorse, and shall not be responsible for the safety, quality, accuracy, reliability, integrity or legality of any such products or services or any content displayed or distributed in connection with such products or services.

You agree that You will not, and You will not permit Your End Users or other third parties to: (i) modify or replace the text, images, links or other content of the MediaNet search results; or (ii) modify, replace or otherwise disable the functioning of links to MediaNet or third party websites provided in the MediaNet search results.

You shall not interfere or attempt to interfere in any manner with the proper workings of the MN Open API, You shall not remove, alter, cover, obfuscate, and/or otherwise interfere with any Content, including without limitation any links (including links provided to you by MediaNet so You and Your End Users may access Permanent Downloads, Samples and Artwork) and/or Metadata or other information included in connection therewith, and You shall not create or distribute any Application that adversely affects the functionality or performance of the MediaNet Service. Your duty not to interfere shall include, but not be limited to, Your duty to respect all geographically based Internet Protocol (IP) restrictions, if any, implemented by MediaNet. Any implementation of the MN Open API that circumvents or renders ineffective such IP restrictions, including blocking, cloaking or modifying any IP address, is expressly prohibited.

You may terminate this TOS at any time by notifying MediaNet by any means. MediaNet may terminate this TOS or suspend Your access to the MN Open API or MediaNet Service (permanently or temporarily), without liability, (i) upon ninety (90) days notice to You if such termination is without cause on Your part, or (ii) immediately, without notice, if You breach any of the terms or conditions of this TOS. Any fees paid hereunder are non-refundable. Upon any termination, Your right to use the MN Open API, MediaNet Service, and any Content will immediately cease. Otherwise, all provisions of this TOS which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, terms regarding the protection of intellectual property, warranty disclaimers, indemnity obligations and limitations of liability.

You acknowledge that the Content is owned and/or controlled by Content Owners and is protected by copyright laws and other intellectual property laws in the United States and in other countries through international treaties. Your rights with respect to Content will be limited by all such applicable laws. You are required to comply with all applicable laws in Your use of MediaNet Service and the MN Open API and to respect the applicable Content Owners' rights therein. You agree not to make any use of the Content that would infringe the copyright(s) therein. You agree that you will not modify any Content obtained through MediaNet for any reason whatsoever, including, without limitation, for the purpose of disguising or changing ownership or source of the Content.

Samples, Artwork and Metadata are provided through the MediaNet Service solely to promote the sales of Permanent Downloads and may only be displayed in connection with the applicable Permanent Download, and not in any other manner. You may not stream Content other than Samples and not include in the Application any ability to translate a Sample into a "ringer" for a telephone or mobile phone.

You understand that each Content Owner shall have the right to terminate the distribution of any and all Content owned or controlled by them through the Application without notice to You or Your End Users at any time, in their sole discretion.

You may not modify, create derivative works of, reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or underlying trade secrets of the MediaNet Service (except as authorized in writing by MediaNet).

You may not use the MediaNet Service to build, contribute to or provide Content to any other third party content or music service that offers the same or substantially similar services to the MediaNet Service.

You may not offer the Application or use any MediaNet Materials in a manner that could be construed as an endorsement of any product, service or person, as a so-called "commercial tie-up," "commercial tie-in" loyalty reward or redemption credit, "give away" or any similar use, directly or indirectly.

If the Application has a playlist functionality, End Users must be provided with an opportunity to purchase the entire playlist at once, as well as to purchase individual Sound Recordings within the playlist.

You may not make any use (directly or indirectly) of names, likenesses or biographical materials provided by MediaNet of any artist, record label and/or any other persons contributing to the recording or creation of any MediaNet Materials in advertisements, promotions, press releases or marketing materials for the MediaNet Service. You understand that the Content distributed through the Application is for the personal, non-commercial entertainment use of End Users.

You are not using the MN Open API, MediaNet Service or Application for any improper or illegal purpose, and you will act in good faith in Your relationships with MediaNet and all Content Owners, and will abide by the rules set forth by the TOS.

You understand that the MN Open API, MediaNet Service and software embodied within such MN Open API and MediaNet Service may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by MediaNet or any Content Owners. You may not attempt to override or circumvent any of the usage rules embedded into the MediaNet Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the Content or materials provided in connection with MediaNet Service, in whole or in part, is strictly prohibited.

You will not remove, alter, delete, or destroy any copyright, proprietary, or confidential notices placed on the Content or any associated documentation.

If a parental advisory warning is provided with particular Content, You shall promptly and clearly disclose such warning to End Users prior to their playing or purchase of the applicable Sample or Permanent Download.

You acknowledge, consent and agree that MediaNet may access, preserve and disclose Your account information and content if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to (i) comply with legal process; (ii) enforce the TOS; (iii) respond to claims that any content violates the rights of third parties; (iv) respond to Your requests for customer service, if applicable; or (v) protect the rights, property or personal safety of MediaNet, Content Owners, End Users and the public.

You hereby agree that the Application will conform to the description as provided by You to MediaNet during the registration process, and any updates thereof, including the location where End Users may access the Application (e.g., URL). You further agree to use or place the Application on sites for which you are authorized to do so. If MediaNet determines, in its sole discretion, that the description of the Application provided by You to MediaNet is inaccurate or the Application is being used or placed on any web site for which you are not authorized to do so, MediaNet reserves the right to disable both the Application and Your account.

You hereby agree to include conspicuous MediaNet attribution branding in the Application wherever the MediaNet Service or Content is made available to End Users. Such attribution branding will be provided to You by MediaNet.

You acknowledge and agree that the Content Owners are intended beneficiaries of these TOS and shall have the right to enforce these TOS against you. Except as otherwise expressly set forth herein, there shall be no third-party beneficiaries to this TOS.

You acknowledge that the Application may not (i) cause, control, encourage, induce, facilitate, promote or advertise activities, products or services that are illegal (including the illegal copying or unauthorized distribution of third party copyrighted material), violent, defamatory or discriminatory; (ii) display or advertise pornography, including sexually explicit images; (iii) sell or advertise products or services for alcohol, tobacco, firearms, gambling, or feminine hygiene products; (iv) endorse any religious cause, political position or political candidate; or (v) engage in any activities that may be deemed objectionable by Content Owners in their sole discretion, including linking to objectionable web sites.

IV. Modifications to the Terms of Service

MediaNet reserves the right, in its sole discretion, to update or modify this TOS at any time. If any such updates or modifications constitute a material change to this TOS, as determined by MediaNet in its sole discretion, MediaNet will provide You with thirty (30) days advance notice. It is solely Your responsibility to review and familiarize Yourself with the updates or modifications. Your use of the MN Open API following such updates and modifications constitutes Your agreement and acceptance to be bound by the terms and conditions of the TOS as modified. If You do not agree to the TOS as modified Your may terminate this TOS in accordance with the terms herein and stop using the MN Open API.

V. End User License Agreement

You acknowledge that MediaNet will only make the Content available to end users through the Application pursuant to an EULA which will include the restrictions as set forth below. Your further agree to implement functionality that provides for End User acceptance of the EULA as a condition to access any Content.

The EULA shall contain, at minimum, the following terms:

  • The Application and all Content is provided for the End Users’ personal, non-commercial, entertainment use.
  • All Content embodies the intellectual property of a third party and is protected by law.
  • MediaNet and/or Content Owners may, from time-to-time, remove Content from the MediaNet Service without notice.
  • End Users agree that they will not attempt to modify any software or Content obtained through the MediaNet Service for any reason whatsoever, including for the purpose of disguising or changing ownership or source of the Content.
  • Content may not be used as a musical "ringer" in connections with phone calls.
  • End Users agree to comply with all applicable laws, including copyright law, in their use of the Content and to protect the applicable Content Owner’s rights therein.
  • Any reproduction, redistribution, transmission, sale, broadcast, public performance, rental or lending, adaptation, sub license, modification, promotion or other use of the Content, including, without limitation, any use that requires a synchronization license with respect to the underlying musical composition, without the prior written consent of the copyright owner is a violation of the law and is expressly prohibited.
  • Other than as expressly set forth herein, copying, sharing or transferring of the Content is expressly prohibited. Once a Permanent Download is burned to a CD it may not be copied, distributed or transferred from that CD to any other media or device.
  • Permanent Downloads may be purchased individually, collectively as albums, or, in some cases, only in the form of albums. However, each purchase of a Permanent Download shall be deemed a final, nonrefundable sale.
  • All Permanent Downloads sold through the MediaNet Service are encoded in a high quality MP3 format.
  • The availability and prices of Content are subject to change without notice.
  • MediaNet and the Content Owners are intended beneficiaries of the EULA and shall have the right to enforce the EULA against an End User.
  • The MediaNet Service including all Content and other information, materials and products included on or otherwise made available to you through the MediaNet Service are provided "as-is" and "as available" without warranties of any kind from MediaNet Digital, Inc. or any Content Owners. To the full extent permissible by applicable law, MediaNet Digital, Inc. and all Content Owners disclaim all warranties or merchantability and fitness for a particular purpose. Neither MediaNet Digital, Inc. nor any Content Owners warrants that the MediaNet Service or any Content, information, materials or products included on or otherwise made available to you through the MediaNet Service are free of viruses or other harmful components.
  • Neither MediaNet Digital, Inc. nor any Content Owners will be liable for any indirect, incidental, punitive, special or consequential damages or any kind arising from the use of the MediaNet Service or from Content, information, materials or products included on or otherwise made available to you through the MediaNet Service, or for any damages in excess of the amount paid for the specific item of Content giving rise to the applicable claim for damages.
  • MediaNet and the Content Owners reserve the right to modify the usage rules contained in the EULA at any time.
  • Monitoring usage of the Content entails the ongoing involvements of and/or monitoring by MediaNet and/or its licensors.
  • End Users agree that their access of the MediaNet Service, including accessing and/or purchasing Content is acknowledgement of their acceptance of and agreement to use the MediaNet Service in accordance with the EULA and that any other use of the MediaNet Service will constitute a breach of the EULA and may constitute a violation of law, including copyright infringement.
  • MediaNet and the Content Owners reserve all rights that they may have in law or equity to enforce the EULA or the use of the Content.
  • All Permanent Downloads of Sony BMG Music Entertainment content are sold directly by SBME Digital LLC via MediaNet, Inc. as its agent.

NOTICE OF THE EULA MUST BE CONSPICUOUSLY DISPLAYED AND ACCESSIBLE TO END USERS AT ALL TIMES.

VI. Intellectual Property & Confidentiality

All MediaNet Materials and other intellectual properties of the MediaNet Service (collectively "MediaNet Intellectual Property") are protected by United States copyright, patent, trade secret, trademark, trade dress, and service mark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Content owned by third parties, all MediaNet Intellectual Property contained in the MediaNet Service is the sole and exclusive property of MediaNet or its subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, trade dress, and trade names are proprietary to MediaNet or its affiliates and/or third-party licensors. Except as expressly authorized by MediaNet, you agree not to sell, sublicense, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the MediaNet Intellectual Property.

All Company Materials and other intellectual properties of the Application (collectively "Company Intellectual Property") are protected by United States copyright, patent, trade secret, trademark, trade dress, and service mark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any Content owned by third parties, including Content Owners and MediaNet, all Company Intellectual Property is Your sole and exclusive property or that of Your subsidiaries or affiliated companies and/or third-party licensors. All trademarks, service marks, trade dress, and trade names are proprietary to You or Your affiliates and/or third-party licensors. Except as expressly authorized by You, MediaNet agrees not to sell, sublicense, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Company Intellectual Property.

MediaNet Digital, MNDigital.com, and Performance by MediaNet are trademarks, domain names, and/or service marks of MediaNet. All other trademarks, domain names, or service marks are property of their respective owners. Use of any MediaNet's trademarks or service marks without MediaNet's express written consent is strictly prohibited.

If the Application that you create allows Users to download, view, listen to or otherwise access or distribute third party content, You must post and implement a copyright policy that complies with the Digital Millennium Copyright Act ("DMCA"), which must include, without limitation:

  • registering an agent with the United States Copyright Office to receive notices of claimed infringement (the form to register an agent can be found online at: http://www.copyright.gov/onlinesp/agent.pdf);
  • if you receive a notice of infringement, expeditiously removing or disabling access to the allegedly infringing content and if necessary, contacting the person who submitted the notice for additional information;
  • the adoption and implementation of a policy that provides for the termination, in appropriate circumstances, of repeat infringers; and
  • including the following statement on any page of the Application or other interface through which Users can upload or otherwise make third party content available: "Content identified as belonging to a third party can be transmitted on the Application so long as you obtain permission first and the ownership and rights are clearly indicated You must not upload or present any media or content in which you do not have the appropriate rights to do so. You may be in violation of copyright laws if you do not have the appropriate rights to the media or content you upload or present on the Application. The Application provider will not tolerate known infringements or misbehavior by its users. It is such provider's policy to terminate the accounts of known repeat infringers. In addition, unauthorized copying, distribution, modification, public display, or public performance of copyrighted works may be an infringement of the copyright holders' rights. You may not copy, reproduce, distribute, or create derivative works without being authorized to do so by law or by the copyright holder."

For the purposes of this TOS, “Confidential Information” means (i) all non public information of MediaNet and its affiliates, including information relating to the MediaNet Service and information pertaining to MediaNet’s business strategy, activities and operations (whether as then being conducted or proposed to be conducted), reports, ideas, concepts, know-how, techniques, technology, designs, specifications, drawings, diagrams, data, code, marketing plans, strategies, customer lists, suppliers, sources of materials, financial information, pricing information, business relationships, employees, trade secrets, and other technical or business information and any information, data or reports prepared or compiled under this TOS and (ii) the terms of this TOS. Confidential Information will not be deemed to include any information which (a) is publicly known at the time of the disclosure; (b) becomes publicly known other than by breach of the terms of this TOS; (c) becomes known to You, without restriction, from a source free of any obligation of confidentiality; or (d) is independently developed by You or already in Your possession without the benefit of the Confidential Information, as shown by valid records.

During the term of this TOS and for three (3) years thereafter, You agree (a) that You will not disclose to any third party or use any Confidential Information except as expressly permitted in this TOS, and (b) that You will take all reasonable measures to maintain the confidentiality of all Confidential Information in Your possession or control, which will in no event be less than the measures You use to maintain the confidentiality of Your own information of similar importance. Notwithstanding the foregoing, You may disclose Confidential Information (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, so long as You notify MediaNet sufficiently in advance of such disclosure to give MediaNet the reasonable opportunity to protect such information, as permitted by law, or (ii) on a “need-to-know” basis, under a contractual obligation of confidentiality at least as strict as that set forth in this section, to Your legal counsel and accountants, and (with the prior approval of MediaNet) banks and other financing sources (who are not competitors of MediaNet) and their advisors.

VII. Privacy; No Endorsement

If the Application enables You or any party to gain access to information about users of the Application, including but not limited to personally identifying and non-personally identifying usage information, You or the party receiving the information must make publicly available, and abide by, a privacy policy that complies with all applicable laws and regulations and You must clearly post a link to such privacy policy at the point such information is collected.

The Applications may not be designed or implemented in a way that might mislead a user into believing he or she is interacting directly with MediaNet when interacting with any of the Applications, or that any of the Applications were created by or are endorsed by MediaNet, as determined by MediaNet in its sole discretion.

VIII. Marketing

MediaNet is free to publicize Your use of the MN Open API for marketing and promotional purposes, including without limitation use of Your trade name, trade dress, trademarks, or service marks in its marketing and promotional materials, including, but not limited to, the Site.

IX. Retail Price, Fees & Audit

In the event You provide credit card processing services for the Application, You may set the Retail Price for the Permanent Downloads if the Content does not already required a specific Retail Price as included in the Metadata. In such event You agree to offer the applicable Permanent Download for sale at such required Retail Price.

In the event MediaNet provides credit card processing services for the Application, as between You and MediaNet the Retail Price will be set by MediaNet, provided, however, You will bear the cost of any charge-backs, bad debt and fraudulent credit card charges with respect to the use of Content through the Application.

MediaNet reserves the right to charge a fee for using the MN Open API and/or any existing individual features thereof in its sole discretion and to thereafter adjust those fees. In such event, MediaNet will provide you with at least thirty (30) days notice prior to the imposition or adjustment of any such fees. If MediaNet begins charging (or thereafter adjusts) fees for using the MN Open API or any existing feature thereof, You have the right to stop using the MN Open API and/or the applicable feature. MediaNet also reserves to right to charge a fee for any new features it may add to the MN Open API. If you do not wish to be subject to any such fees, do not make any use of such new features. If You make any use of the MN Open API and/or any features for which a fee is due in accordance with this Paragraph, you are thereby agreeing to pay such fees as follows: (i) MediaNet reserves the right to specify the manner in which the fee will be calculated, the terms on which You will be invoiced and charged and the terms of payment; and (ii) any and all fees payable by You pursuant to this TOS are expressed exclusive of, and You agree to pay, all taxes and duties, including sales, use or import taxes, withholding taxes, customs duties or similar governmental assessments that may be assessed by any government and/or jurisdiction (collectively, "Taxes") on the transactions under this TOS.

As a condition of Content licensing, You may be subject to an audit by Content Owners. In such event, You agree to make Your financial books and records available to such Content Owners upon request so they may examine and make extracts of those books and records as they relate to payment of sums due for use of the Content. Such books and records will be kept at Your headquarters in the United States.

X. Representations; Warranties.

You covenant, represent and warrant that (i) You have full power and authority to enter into this TOS; (ii) You own and/or have obtained and will maintain the necessary legal rights to provide all content contained in or transmitted through the Application (other than Content), and neither such content nor the Application will infringe or violate any intellectual property or other rights of any third party; (iii) You do not and will not violate any contractual or other obligations to, or any rights of, any party by agreeing to or performing the provisions of this TOS ; (iv) the Application and any website or service that hosts, links to, or otherwise incorporates or uses the Application shall comply with all applicable laws and regulations (including, without limitation, all laws and regulations relating to spam, privacy, intellectual property, consumer protection, defamation and obscenity) and shall not contain any pornographic, hate-related, violent, discriminatory or illegal content; and (v) the Application shall not contain any harmful or malicious code, including but not limited to viruses and worms.

XI. Indemnification

You hereby agree to indemnify, defend and hold MediaNet, and its officers, directors, agents, licensors and licensees (collectively, the "Indemnified Parties") harmless from and against any and all liability, losses, damages and costs (including, without limitation, reasonable attorneys' fees) incurred by the Indemnified Parties in connection with any claim arising out of: (i) Your use of the MN Open API, MediaNet Service or Content; (ii) the Applications; (iii) any use of the Application by End Users; (iv) any breach of or noncompliance with any representation, warranty or obligation in this TOS or applicable policies; and (v) any claim that the Applications or any content available on or through the Applications violates any applicable law, including without limitation that it infringes or otherwise violates the rights of a third party. You shall cooperate as fully as reasonably required in the defense of any claim. MediaNet reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You. You acknowledge that damages for improper use of the MN Open API may be irreparable; therefore, MediaNet is entitled to obtain equitable relief, including preliminary and permanent injunctions, in addition to all other remedies.

XII. Disclaimer of Warranty

THE MN OPEN API AND THE MEDIANET SERVICE, INCLUDING ALL CONTENT AND OTHER INFORMATION, MATERIALS AND PRODUCTS INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE MEDIANET SERVICE ARE PROVIDED "AS IS" AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND FROM MEDIANET OR CONTENT OWNERS. YOU AGREE THAT DOWNLOADING AND USE OF THE MN OPEN API OR MEDIANET SERVICE AND STREAMING, SALE OR DISPLAY OF CONTENT IS ENTIRELY AT YOUR OWN RISK. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, MEDIANET AND CONTENT OWNERS EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS, WARRANTIES FOR THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF THE MN OPEN API, THE MEDIANET SERVICE AND CONTENT, AND ANY WARRANTIES FOR VIRUSES OR OTHER HARMFUL COMPONENTS IN CONNECTION WITH THE MN OPEN API, THE MEDIANET SERVICE OR CONTENT. Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to You insofar as they relate to implied warranties.

You acknowledge and agree that MediaNet has no special relationship with or fiduciary duty to You and that MediaNet has no control over, and no duty to take any action regarding what Content You or Your End Users access via the MediaNet Service or what effects the Content may have on You or Your End Users. You release MediaNet from all liability for having acquired or not acquired Content through the MediaNet Service. The MediaNet Service may contain, or direct You to sites containing information that some people may find offensive or inappropriate. MediaNet makes no representations concerning any content contained in or accessed through the MediaNet Service, and MediaNet will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the MediaNet Service.

IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."

XIII. Limitation of Liability

UNDER NO CIRCUMSTANCES WILL MEDIANET OR CONTENT OWNERS BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY WITH RESPECT TO ANY SUBJECT MATTER RELATED TO THIS AGREEMENT FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (EVEN IF MEDIANET OR CONTENT OWNERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF THE MN OPEN API OR THE MEDIANET SERVICE, FROM INABILITY TO USE THE MN OPEN API OR THE MEDIANET SERVICE, FROM THE INTERRUPTION, SUSPENSION, MODIFICATION, ALTERATION OR TERMINATION OF THE MN OPEN API, THE MEDIANET SERVICE OR CONTENT OR FROM ANY OTHER REASON OR CAUSE. SUCH LIMITATION WILL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF OTHER SERVICES OR PRODUCTS RECEIVED THROUGH OR ADVERTISED IN CONNECTION WITH THE MEDIANET SERVICE OR THE MN OPEN API OR ANY INTERACTIONS BETWEEN MEMBERS, WHETHER ONLINE OR OFFLINE. THESE LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. NOTWITHSTANDING ANY PROVISION HEREIN TO THE CONTRARY, MEDIANET’S DAMAGES, IF ANY, TO YOU SHALL BE LIMITED TO THE GREATER OF $500 OR THE AMOUNT, IF ANY, PAID BY YOU TO MEDIANET FOR USE OF THE MN OPEN API, THE MEDIANET SERVICE OR CONTENT. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

XIV. Notice

MediaNet may provide you with notices, including those regarding changes to this TOS, including by but not limited to e-mail and/or regular mail, or other reasonable means now known or hereafter developed. Such notices may not be received if You violate this TOS, including, but not limited to, Your obligation to keep You registration information up to date. Your agreement to this TOS constitutes Your agreement that you are deemed to have received any and all notices that would have been delivered had you complied with this TOS.

XV. Feedback

Any feedback, suggestions, ideas or enhancements (“Feedback”) You provide or disclose to MediaNet may be used by MediaNet and its affiliates for any purpose, and You hereby grant MediaNet and its affiliates and successors a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferable right to fully exercise and exploit such Feedback (including all related intellectual property rights) and to allow others to do so. Such Feedback may include bug reports, problems or deficiencies encountered by You while using the MN Open API.

XVI. Miscellaneous Provisions

This TOS does not create any agency or partnership relationship. This TOS is not intended to benefit, nor shall they be deemed to give rise to, any rights in any third party. This TOS will not be assignable or transferable by You without MediaNet's prior written consent. MediaNet may transfer or assign this TOS in whole or in part. This TOS will be governed by and construed in accordance with the laws of the State of New York, without giving effect to the conflict of laws provisions of New York or Your actual state or country of residence. Any claim or controversy in any way arising out of or relating to this TOS will be filed in a court of competent jurisdiction sitting in New York County, New York and You consent to exclusive jurisdiction in that county. If for any reason a court of competent jurisdiction finds any provision or portion of this TOS to be unenforceable, such provision shall be limited to eliminated to the minimum extent necessary and the remainder of this TOS will continue in full force and effect unchanged. This TOS, together with the various policies and other MediaNet documents referenced herein, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede and replace all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of this TOS will be effective only if in writing and signed by MediaNet.

Under no circumstances shall MediaNet or Content Owners be held liable for any delay or failure in performance resulting directly or indirectly from acts of God, fire, riot or civil commotion, act of public enemy, rule, order or act of any government or governmental instrumentality (whether federal, state, local or foreign) or other cause of a similar or different nature not reasonably within MediaNet or Content Owners’ control, as applicable.

Date:07/08/2009