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<P ALIGN="center"><FONT SIZE="2">BEATNIK PUBLIC LICENSE AGREEMENT
</FONT></P>
<P>IMPORTANT: This is a public license agreement
(“Agreement”) between you (the “User” as defined below) and
Beatnik, Inc., with its principal place of business at 2600 S. El Camino Real,
San Mateo, California 94403 (“Beatnik”). It is important that you
read this document before clicking on the “I Accept” button below or
using the Software (as defined below). By clicking on the “I Accept”
button below and/or using any of the Software, you acknowledge that you have
read this Agreement and agree to be bound by its terms. If you do not agree to
be bound by all of the terms of this Agreement, click on the “I
decline” button below and do not attempt to access, install or use any of
the Software. Any use or distribution of the Program constitutes User's
acceptance of this Agreement. </P>
<P><FONT SIZE="2">Section 1. DEFINITIONS.</FONT></P>
<P>1.1 “Contribution” means: </P>
<BLOCKQUOTE>
<P>(a) in the case of Beatnik, the Original Program, and
</P></BLOCKQUOTE>
<BLOCKQUOTE>
<P>(b) in the case of each Contributor, changes and/or additions to
the Program, where such changes and/or additions to the Program originate from
and are distributed by that particular Contributor. A Contribution
‘originates’ from a Contributor if it was added to the Program by
such Contributor itself or anyone acting on such Contributor’s behalf.
Contributions do not include additions to the Program which: (i) are separate
modules of software distributed in conjunction with the Program under their own
license agreement, and (ii) are not derivative works of the Program.
</P></BLOCKQUOTE>
<P>1.2 “Contributor” means Beatnik and any other entity
that distributes the Program. </P>
<P>1.3 “Original Program” means the original version of the
Software, in object code and source code form, together with any related
technical specification documentation provided by Beatnik. </P>
<P>1.4 “Program” means the Original Program and
Contributions. </P>
<P>1.5 “Software” means the Beatnik Player software,
version 2.0 – 2.x, in source code and object code format, as made
available by Beatnik via download from ______________, and does not include any
portion of the Beatnik Audio Engine in any format, whether or not made
available via download at the same time. </P>
<P>1.6 “User” means anyone who receives the Program under
this Agreement, including all Contributors. </P>
<P><FONT SIZE="2">Section 2. LICENSE.</FONT></P>
<P>2.1 <U>License Grant</U>. Subject to the terms of this Agreement,
each Contributor hereby grants User a non-exclusive, worldwide, royalty-free
license to install, use, reproduce, prepare derivative works of, publicly
display, publicly perform, import, distribute and sublicense the Contribution
of such Contributor, if any, and such derivative works, in source code and
object code form.</P>
<P>2.2 <U>Third Party Licenses</U>. User understands that although
each Contributor grants the licenses to its Contributions set forth herein, no
assurances are provided by any Contributor that the Program does not infringe
the patent or other intellectual property rights of any other entity. Each
Contributor disclaims any liability to User for claims brought by any other
entity based on infringement of intellectual property rights or otherwise. As a
condition to exercising the rights and licenses granted hereunder, each User
hereby assumes sole responsibility to secure any other intellectual property
rights needed, if any. For example, if a third party patent license is required
to allow User to distribute the Program, it is User’s responsibility to
acquire that license before distributing the Program. </P>
<P>2.3 <U>Netscape Public License</U>. The Original Program may
contain certain files that are derived, directly or indirectly from the Mozilla
Communicator client code, released March 31, 1998 (“Netscape Code”),
provided by Netscape Communications Corporation (“Netscape”). The
source code of such files are made available by Beatnik pursuant to the terms
of the Netscape Public License, Version 1.0 (“NPL”) available via
download from Beatnik’s website. Any terms applicable to such files in
this Agreement which are different from the terms with respect to the
executable version of the Netscape Code in the NPL are offered by Beatnik
alone, and not by Netscape or any other contributor. </P>
<P>2.4 <U>Ownership</U>. Subject only to the licenses granted in this
Section 2, Beatnik, its licensors, or Contributors, as applicable, shall retain
all right, title and interest, including without limitation all copyrights,
trademarks and other proprietary rights, in and to the Program. The Program is
protected by the copyright and patent laws of the United States and other
countries, and international copyright conventions and treaties. Beatnik
reserves all rights in the Program not expressly granted to User herein. </P>
<P><FONT SIZE="2">Section 3. REQUIREMENTS.</FONT></P>
<P>3.1 <U>Object Code Distribution</U>. A Contributor may choose to
distribute the Program in object code form under its own license agreement,
provided that: </P>
<BLOCKQUOTE>
<P>(a) it complies with the terms and conditions of this Agreement;
and </P></BLOCKQUOTE>
<BLOCKQUOTE>
<P>(b) its license agreement: </P></BLOCKQUOTE>
<BLOCKQUOTE>
<BLOCKQUOTE>
<P>(i) effectively disclaims on behalf of all Contributors all
warranties and conditions, express and implied, including warranties or
conditions of title and non-infringement, and implied warranties or conditions
of merchantability and fitness for a particular purpose;
</P></BLOCKQUOTE></BLOCKQUOTE>
<BLOCKQUOTE>
<BLOCKQUOTE>
<P>(ii) effectively excludes on behalf of all Contributors all
liability for damages, including direct, indirect, special, incidental and
consequential damages, such as lost profits; and </P></BLOCKQUOTE></BLOCKQUOTE>
<BLOCKQUOTE>
<BLOCKQUOTE>
<P>(iii) states that any provisions which differ from this
Agreement are offered by that Contributor alone and not by any other party.
</P></BLOCKQUOTE></BLOCKQUOTE>
<P>3.2 <U>Source Code Distribution</U>. When the Program is made
available in source code form: </P>
<BLOCKQUOTE>
<P>(a) it must be made available under this Agreement; and
</P></BLOCKQUOTE>
<P></P>
<BLOCKQUOTE>
<P>(b) a copy of this Agreement must be included with each copy of
the Program. </P></BLOCKQUOTE>
<P>3.3 <U>Contributor Identification</U>. Each Contributor must
include the following in a conspicuous location in the Program: </P>
<P></P>
<BLOCKQUOTE>
<P>Copyright © 1996 – 2001 Beatnik, Inc. and others. All
rights reserved. MPEG Layer 3 audio coding technology licensed from Fraunhofer
IIS and THOMSON multimedia. Portions created by Netscape, if any, are Copyright
© 1998 Netscape Communications Corporation. All rights reserved.
</P></BLOCKQUOTE>
<BLOCKQUOTE>
<P>Each Contributor must also identify itself as the originator of
its Contribution, if any, in a manner that reasonably allows subsequent Users
to identify the originator of the Contribution. In no event may Contributor use
any trademark, trade name, logo or other proprietary designation of Beatnik
without Beatnik’s prior written consent and nothing in this Agreement
shall be deemed a grant of such consent. </P></BLOCKQUOTE>
<P><FONT SIZE="2">Section 4. COMMERCIAL DISTRIBUTION.</FONT></P>
<P>4.1 Commercial distributors of software may accept certain
responsibilities with respect to end users and business partners. While this
license is intended to facilitate the commercial use of the Program, the
Contributor who includes the Program in a commercial product offering should do
so in a manner which does not create potential liability for other
Contributors. Therefore, if a Contributor includes the Program in a commercial
product offering, such Contributor (“Commercial Contributor”) hereby
agrees to defend and indemnify every other Contributor (“Indemnified
Contributor”) against any losses, damages and costs (collectively
“Losses”) arising from claims, lawsuits and other legal actions
brought by a third party against the Indemnified Contributor to the extent
caused by the acts or omissions of such Commercial Contributor in connection
with its distribution of the Program in a commercial product offering. In order
to qualify, an Indemnified Contributor must: a) promptly notify the Commercial
Contributor in writing of such claim, and b) allow the Commercial Contributor
to control, and cooperate with the Commercial Contributor in, the defense and
any related settlement negotiations. The Indemnified Contributor may
participate in any such claim at its own expense. </P>
<P><FONT SIZE="3"></FONT><FONT SIZE="2">Section 5. TERM AND
TERMINATION.</FONT></P>
<P>5.1 <U>Term</U>. This Agreement shall commence on the date on
which you click “I Accept” below (the “Effective Date”),
and shall continue indefinitely, unless terminated pursuant to Section 5.2 of
this Agreement. </P>
<P>5.2 <U>Termination</U>. All User’s rights under this
Agreement shall terminate if it fails to comply with any of the material terms
or conditions of this Agreement and does not cure such failure within thirty
(30) days after becoming aware of such noncompliance. If all User’s rights
under this Agreement terminate, User agrees to cease use and distribution of
the Program as soon as reasonably practicable. However, User’s obligations
under this Agreement and any licenses granted by User relating to the Program
shall continue and survive. </P>
<P><FONT SIZE="2">Section 6. <FONT SIZE="3"></FONT><FONT
SIZE="2">WARRANTY DISCLAIMER. THE PROGRAM IS LICENSED “AS-IS.” NO
WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED IS PROVIDED BY BEATNIK, INC.,
ITS LICENSORS OR ANY CONTRIBUTOR. BEATNIK, ITS LICENSORS AND EACH CONTRIBUTOR
EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND WHETHER EXPRESS OR
IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE PROGRAM,
INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY,
NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. Each User is solely
responsible for determining the appropriateness of using and distributing the
Program and assumes all risks associated with it exercise of rights under this
Agreement, including but not limited to the risks and costs of program errors,
compliance with applicable laws, damage to or loss of data, programs or
equipment, and unavailability or interruption of operations. In no event will
Beatnik be obligated to provide Users with any update or new version of the
Program or any maintenance or technical support with respect to the Program
</FONT></FONT></P>
<P>Section 7. LIMITATION OF LIABILITY. EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT, NEITHER BEATNIK, ITS LICENSORS, USER NOR ANY
CONTRIBUTORS SHALL HAVE ANY LIABILITY OR BE OBLIGATED WITH RESPECT TO ANY
SUBJECT MATTER OF THIS AGREEMENT UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY
OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, SPECIAL, INCIDENTAL,
PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR ANY COST
OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS), EVEN IF
BEATNIK, USER OR CONTRIBUTOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. </P>
<P>Section 8. GENERAL PROVISIONS. </P>
<P>8.1 <U>Future Versions of Agreement</U>. Beatnik may publish new
versions (including revisions) of this Agreement from time to time. Each new
version of the Agreement will be given a distinguishing version number. The
Program (including Contributions) may always be distributed subject to the
version of the Agreement under which it was received. In addition, after a new
version of the Agreement is published, Contributor may elect to distribute the
Program (including its Contributions) under the new version. No one other than
Beatnik has the right to modify this Agreement.</P>
<P>8.2 <U>Governing Law</U>. This Agreement shall be governed in all
respects by the substantive laws of the State of California, United States of
America (excluding conflict of laws rules). Any dispute regarding this
Agreement shall be subject to the exclusive jurisdiction of the California
state courts in and for San Mateo County, California or, if there is federal
jurisdiction, the United States District Court for the Northern District of
California, and the parties agree to submit to the personal and exclusive
jurisdiction and venue of these courts. </P>
<P>8.3 <U>Notices</U>. All notices, statements and reports required
or permitted by this Agreement shall be in writing and deemed to have been
effectively given and received; (i) five (5) business days after the date of
mailing if sent by registered or certified U.S. mail, postage prepaid, with
return receipt requested; (ii) when transmitted if sent by facsimile, provided
a confirmation of transmission is produced by the sending machine and a copy of
such facsimile is promptly sent by another means specified in this Section 8.4;
or (iii) when delivered, if delivered personally or sent by express courier
service. All notices to Beatnik must be sent to the attention of Beatnik’s
General Counsel at the address first set forth above. </P>
<P>8.4 <U>Export Restrictions</U>. User will comply in all respects
with all laws, regulations, rules and treaties applicable to any materials or
technology provided hereunder, including without limitation, all export
restrictions. By downloading, using or installing the Software, you warrant
that you are not, and are not located in, under the control of, or a national
or resident of any country subject to United States export restrictions that
prohibit the license of the Software to you. </P>
<P>8.5 <U>Successors and Assigns</U>. The provisions of this
Agreement shall apply to and bind the successors and permitted assigns of the
parties. </P>
<P>8.6 <U>Severability</U>. If any provision set forth in this
Agreement is determined by any court to be unenforceable, invalid or illegal,
such provision shall be interpreted to have the broadest application as shall
be enforceable, valid and legal, provided, however, that if such provision
cannot be interpreted to be enforceable, valid or legal to any extent, such
provision shall be severed. The invalidity, illegality or unenforceability of
any particular provision of this Agreement shall not affect the other
provisions hereof, which shall continue in full force and effect. </P>
<P>8.7 <U>Waiver of Rights. </U> The failure of either party to
require performance of any of the terms, covenants, or conditions of this
Agreement or to exercise any right hereunder in any instance(s), shall not be
construed as a waiver or relinquishment of the future performance of any
rights. </P>
<P>8.8 <U>Entire Agreement; Conflict</U>. This Agreement, together
with all exhibits and schedules hereto, constitutes the complete, final and
exclusive statement of the terms of the Agreement among the parties pertaining
to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions of the parties. No modification or
rescission of this Agreement shall be binding unless executed in writing by the
party to be bound thereby. </P>
<P>8.9 <U>Legal Expenses</U>. The prevailing party in any legal
action brought by one party against the other and arising out of this Agreement
will be entitled, in addition to any other rights and remedies it may have, to
reimbursement for its expenses, including court costs and reasonable
attorneys’ fees. </P>
<P>8.10 <U>Government End-Users.</U> The Software and accompanying
documentation are deemed to be “commercial computer software” and
“commercial computer software documentation”, respectively, pursuant
to DFAR Section 227.7202 and FAR Section 2.212, as applicable. Any use,
modification, reproduction, release, performing, displaying or disclosing of
the software and accompanying documentation by the U.S. Government shall be
governed solely by the terms of this Agreement and shall be prohibited except
to the extent expressly permitted by the terms of this Agreement. </P>
<P>Copyright notice applicable to the Software: Copyright © 1996
– 2001 Beatnik, Inc. and others. All rights reserved. MPEG Layer 3 audio
coding technology licensed from Fraunhofer IIS and THOMSON multimedia. Certain
portions created by Netscape are Copyright © 1998 Netscape Communications
Corporation. All rights reserved. </P>
<P>Beatnik®, Beatnik Player<SUP>TM</SUP> and Beatnik Audio
Engine<SUP>TM</SUP> are trademarks of Beatnik, Inc. in the United States and/or
other countries. </P>
<P>I ACCEPT / I DECLINE </P></TD>
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