This is a legal agreement between you and Mercora, Inc., doing business as Social·fm, and its affiliates and/or wholly-owned subsidiaries ("Social·fm") with respect to your access and use of the Social·fm Network, which includes Social·fm software, content, related documentation, information on the Social·fm domain (www.social.fm) and information made available by users to each other on the Internet through the Social·fm software (collectively, the "Service"). You must accept without modification all of the terms, conditions, and notices contained in these Terms of Use in order to access and/or use the Service (collectively, the "Terms of Use" or "Agreement"). If you do not accept these Terms of Use in their entirety, you may not access or use the Service.

Portions of the Service may be governed by posted guidelines, rules, or other terms and conditions. All such guidelines, rules, terms and conditions are hereby incorporated by reference into these Terms of Use. In the event of a conflict between such other guidelines, rules, terms and conditions and these Terms of Use, the Terms of Use shall control, except that the Social·fm Privacy Policy, referenced below, supersedes any conflicting language in these Terms of Use and/or any other guidelines, rules, terms and conditions published in connection with the Service with respect to the subject matter covered by such privacy policy.

Social·fm may change the Terms of Use at any time and such changes shall be effective immediately. You are responsible for regularly reviewing the Terms of Use. The most recent version of the Terms of Use can be found at http://www.social.fm/eula.asp. Your continued use of the Service affirms your agreement to the Terms of Use and any changes.

Social·fm is not obligated to provide updates or improvements to the Service. However, if Social·fm, in its sole discretion, updates or improves the Service, these Terms of Use shall apply to such updates and improvements unless expressly noted otherwise.

YOU MAY ONLY USE SOCIAL·FM CLIENT SOFTWARE TO ACCESS AND/OR USE THE SERVICE. You may not use any software or services in conjunction with Social·fm client software or authorized third-party software which modifies or reroutes, or attempts to modify or reroute, the Service. You may not authorize any third party to access and/or use the Service on your behalf using any automated process such as a BOT, a spider or periodic caching of information stored by Social·fm on your behalf without a separate written agreement with Social·fm. You may not use any software or hardware that reduces the number of users directly accessing or using the Service (sometimes called 'multiplexing' or 'pooling' software or hardware).

You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information, software, products or services that are part of the Service except as expressly provided in these Terms of Use.

You agree to use the Service to only play and stream audio content for which you have acquired the legitimate legal rights for use. You agree that when using the Service for audio streaming, you will not:

• Stream sound recordings that are inappropriate, profane, defamatory, obscene, indecent or unlawful
• Interfere with the Service's audio selection for streaming mechanism which adheres to the public performance of sound recording guidelines of the Digital Millennium Copyright Act (DMCA) or applicable laws and regulations of jurisdictions in which you may be resident
• Publish advance program guides or use other means to pre-announce when particular sound recordings will be streamed or the order in which they will be streamed
• Stream specific sound recordings within one hour of the request by a listener or at a time designated by the listener
• Disable any identification or technological protection information included in the sound recording (if any)
• Violate any applicable local, state, national, or international law, including without limitation the Digital Millennium Copyright Act(DMCA) (requires Adobe Acrobat plug-in).

As a condition of your use of the Service, you will not use the Service for any purpose that is unlawful or prohibited by these Terms of Use. You may not use the Service in any manner that could damage, disable, overburden, or impair the Service or interfere with any other party's use and enjoyment of it. You may not attempt to gain unauthorized access to any account, computer systems or networks associated with the Service or to otherwise interfere with or disrupt any accounts, computer systems or networks connected to the Service. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Service. You may not use access to the Service to obtain information necessary for you to design, develop or update unauthorized software that you use or provide to others to use to access the Service. You may not charge others to use the Service either directly or indirectly without the express written agreement of Social·fm.

Subject to these Terms of Use, you may use the Service within your commercial organization, but you may not use the Service to advertise or offer to buy or sell any goods or services, or to run a business or commercial entity without the express written agreement of Social·fm.

You agree to use the Service only to send, receive, and transfer appropriate messages and user generated audio transmissions. By way of example, and not as a limitation, you agree that when using the Service, you will not:

• Use the Service in connection with surveys, contests, pyramid schemes, chain letters, junk email, spamming or any duplicative, bulk or unsolicited messages (commercial or otherwise).
• Play, stream and broadcast content that does not conform to the guidelines specified in Section 3 of this Agreement.
• Defame, abuse, harass, stalk, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others.
• Create a false identity for the purpose of misleading others.
• Publish, transfer, distribute or disseminate any inappropriate, profane, defamatory, obscene, indecent or unlawful topic, name, material or information.
• Transfer or otherwise make available, files or other material that contain images, photographs, software or other material protected by intellectual property laws, including, by way of example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless you own or control the rights thereto or have received all necessary consents to do the same.
• Use any material or information, including images or photographs, which is made available through the Service in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of any party.
• Transfer, stream or otherwise make available, files or other material that contain viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another's computer or property of another.
• Download any file or other material transferred by another user of the Service that you know, or reasonably should know, cannot be legally distributed in such manner.
• Use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of the Service or other user or usage information or any portion thereof.
• Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is transferred.
• Violate any code of conduct or other guidelines which may be applicable to the Service.
• Use any portion of the Service to harvest or otherwise collect information about others, including e-mail addresses.

See the Social·fm Privacy Statement at http://www.social.fm/privacy.php for disclosures relating to the collection and use of your information.

The Service may allow you to interact with third-party Web sites and Web services ("Link(s)"). The Links are not under the control of Social·fm and Social·fm is not responsible for the contents of any Links, including without limitation any link contained in a Link, or any changes or updates to a Link. Social·fm is not responsible for any form of transmission received from any Link, nor is Social·fm responsible if the Link is not working appropriately. Social·fm is providing these Links to you only as a convenience, and the inclusion of any Link does not imply endorsement by Social·fm of the Link or any association with its operators. You are responsible for viewing and abiding by any privacy statements and terms of use posted in connection with the Links. You are solely responsible for any dealings with third parties (including advertisers) who support the Service, including the delivery of and payment for goods and services.

All Social·fm software (if any) that is made available to view and/or download in connection with the Service ("Software") is owned by and is the copyrighted work of Social·fm and/or its suppliers and is licensed, not sold. Your use of the Software is governed by the terms of the license agreement, if any, which accompanies or is included with the Software ("License Agreement"). You may not install or use any Software that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms. For any Software not accompanied by a license agreement, Social·fm hereby grants to you, the user, a non-exclusive, revocable, personal, non-transferable license to use the Software solely in connection with the Service in accordance with these Terms of Use. You may not lend, lease, rent or sublicense the Software or any aspect of the Service.

You will not disassemble, decompile, or reverse engineer the Software. All Software is protected by copyright laws and international treaty provisions. Any unauthorized reproduction or redistribution of the Software is expressly prohibited by law, and may result in severe civil and criminal penalties. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT. You acknowledge that the Software, and any a ccompanying documentation and/or technical information, is subject to applicable export control laws and regulations of the U.S.A. You agree not to export or re-export the Software, directly or indirectly, to any countries that are subject to U.S.A. export restrictions.

Your license to use the Software with the Service terminates when you terminate your use of the Service. Your license to use the Software with the Service may also terminate if Social·fm, in its sole discretion, modifies the Service to no longer support such Software.

Social·fm does not claim ownership of the materials you provide to Social·fm (except feedback and suggestions on the Service) or post, upload, input or submit to the Service for view by Social·fm and other users of the Service (each a Submission and collectively Submissions).

No compensation will be paid with respect to the use of your Submission, as provided herein. Social·fm is under no obligation to post of use any Submission you may provide and Social·fm may remove any Submission at any time in its sole discretion.

By Posting a Submission you warrant and represent that you own or otherwise control all of the rights to your Submission as described in these Terms of Use including, without limitation, all the rights necessary for you to provide, post, upload, input or submit the Submissions.

HOWEVER, PLEASE NOTE THAT ANY SUBMISSIONS YOU MAKE TO SOCIAL·FM REGARDING THE SERVICE *EXPLICITLY* ASSIGN ALL RIGHT IN THE SUBMISSION, INCLUDING ANY APPLICABLE COPYRIGHTS, PATENTABLE IDEAS, OR PATENTS, TO SOCIAL·FM. PLEASE DO NOT SUBMIT ANY IDEAS ABOUT THE SERVICE THAT YOU DO NOT WISH TO ASSIGN TO SOCIAL·FM. YOUR RIGHT TO USE THIS SERVICE SERVES AS CONSIDERATION. YOUR USE OF THIS SERVICE SERVES AS ACCEPTANCE OF THESE TERMS.

SOCIAL·FM PROVIDES THE SERVICE AND THE SOFTWARE "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE," AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. SOCIAL·FM, ITS AFFILIATES, ITS RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS AND/OR SUPPLIERS (COLLECTIVELY, THE " SOCIAL·FM PARTIES") MAKE NO WARRANTIES. THE SOCIAL·FM PARTIES DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (1) WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (2) WARRANTIES ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (3) WARRANTIES THAT ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT. Social·fm MAY CHANGE THE SERVICE OR THE FEATURES IN ANY WAY, AND AT ANY TIME AND FOR ANY REASON WITHOUT NOTICE. IN NO EVENT SHALL ANY OF THE Social·fm PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS AGREEMENT OR YOUR USE OF THE SERVICE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA OR PROFITS, WITH THE DELAY OR INABILITY TO USE THE SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, OR SERVICES OBTAINED THROUGH THE SERVICE, OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF Social·fm OR ANY OF ITS SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE, OR WITH ANY OF THESE TERMS OF USE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE.

You agree to indemnify and hold Social·fm, its parents, subsidiaries, affiliates, officers, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your use of the Services, the violation of these Terms of Use by you, or the infringement by you, or other user of the Services using your computer or identity, of any intellectual property or other right of any person or entity.

Social·fm may, but is not required to, provide you with customer support ("Support"). Unless you have entered into a separate written support agreement with Social·fm with respect to the Service, Social·fm may modify or terminate any Support it provides at any time in its sole discretion.

Authorized third-party software that uses the Service is not supported by Social·fm and you should contact the provider of such software for support, if any.

Unless you, or a third party on your behalf, have entered into a separate written agreement with Social·fm that modifies these Terms of Use, Social·fm reserves the right, in its sole discretion, to terminate your access to and use of the Service or any portion thereof at any time, without notice. Also, unless you or a third party on your behalf have entered into a separate agreement with Social·fm, Social·fm may terminate or suspend your access to the Service for inactivity, which is defined as failing to log onto the Service for an extended period of time, as determined by Social·fm.

You consent to Social·fm providing you any information regarding the Service in electronic form. Social·fm may provide such information to you via e-mail at the e-mail address you specified when you registered for the Service, by instant message to your account, or by access to a Social·fm web site. As long as you access and use the Service, you will have the necessary software and hardware to receive such notices. If you do not consent to receive any notices electronically, you must discontinue your use of the Service.

If you reside in the United States, claims for enforcement, breach or violation of duties or rights under these Terms of Use are governed by the laws of the State of California, without reference to conflict of laws principles. All other claims, including, without limitation, claims under or for violation of state consumer protection laws, unfair competition laws, and in tort, are governed by the laws of your state of residence in the United States. If you reside outside of the United States, these Terms of Use are governed by the laws of the State of California, without reference to conflict of laws principles. You hereby irrevocably consent to the exclusive jurisdiction and venue of courts in Santa Clara County, California, U.S.A. in all disputes arising out of or relating to the use of the Service. YOU AND Social·fm AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

All contents of any Social·fm Web site related to the Service are: Copyright ©2003-2008 Mercora, Inc., doing business as Social·fm, and/or its suppliers, c/o Mercora, Inc., 440 N. Wolfe Road, Sunnyale, California, 94085 U.S.A. All rights reserved.

TRADEMARKS. Social·fm and Mercora are registered trademarks or trademarks of Mercora, Inc. The names of actual companies and products mentioned herein may be the trademarks of their respective owners.

Social·fm may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter in any Web pages that are part of the Service. Except as expressly provided in these Terms of Use, the furnishing of such Web pages to you does not give you any license to these patents, trademarks, copyrights, or other intellectual property. Any rights not expressly granted herein are reserved.

Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be sent to Service Provider's Designated Agent. ALL INQUIRIES NOT RELEVANT TO THE FOLLOWING PROCEDURE WILL RECEIVE NO RESPONSE. See Notice and Procedure for Making Claims of Copyright Infringement at http://web.social.fm/help/support.aspx.

NOTICE REGARDING PORTIONS OF THIS SOFTWARE PROVIDED BY THE XIPH.ORG FOUNDATION, THE INDEPENDENT JPEG GROUP, MPG123 AND THE LAME PROJECT (www.mp3dev.org).

THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE FOUNDATION OR CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

Revised October 01, 2007