NEXTUNE ONPREMISE SERVICE
 TERMS AND CONDITIONS

Effective May 17, 2009

This document (the "Agreement") is a legal contract between you ("Subscriber" or "you") and Nextune, Inc. ("Nextune" or “we” or “us”) that governs your use of Nextune's websites, online background music services (including the Nextune subscription services), generally available at www.nextuneonpremise.com and other Nextune-controlled, affiliated or partnered websites (collectively, the "Service").

All rights not expressly granted to you in this Agreement are reserved to Nextune and/or its licensors.

1. SUBSCIBER REPRESENTATION
The Subscriber warrants and represents that it is a legal business operation duly licensed in the domain in which it operates. The Subscriber further represents it holds a legal business license to operate, has a business location open to the public and will only use the service described herein at its business locations ("Venue" or "Venues"). The Subscriber agrees that it will not use the service in a manner that conflicts with any terms of this agreement and it is in full compliance with any applicable law regarding the use of the service described herein.

2. MODIFICATIONS, NOTICE
Nextune may from time to time modify these terms and post a copy of the amended Agreement at http://www.Nextuneonpremise.com/terms.php. If you do not agree to (or cannot comply with) the Agreement as amended, your only remedy is to cancel your Subscription Service. You will be deemed to have accepted the Agreement as amended if you continue to use the Service after any amendments are posted.

3. SUBSCRIPTION REQUIREMENTS
You must be at least 18 years of age and be a duly authorized representative by your company to agree to and enter into this Agreement on behalf of your company and to register for use of the Service. If you are under 18 or not a duly authorized representative of your company, you must present this Agreement to an authorized agent of your company, and he or she must check the box on the New Account Registration form to enter into this Agreement. By checking the box indicating your acceptance to this Agreement, you represent that (i) you have read, understood and agree to be bound by this Agreement, (ii) you are at least 18 years old, and (iii) you are an authorized representative for your company with rights to enter into agreements on behalf of your company.

4. DESCRIPTION OF SERVICE
(a) The Service allows you to play music Streams (as defined below) and sound recordings ("Tracks") and related digital content ("Materials") in the Subscriber Venues. To access certain elements of the Service, you may need to install or activate Nextune's proprietary software application; from time to time, you may also have the option to (or be required to for certain functionality) install other software made available through the Service, including Nextune’s NEXUS software (collectively, all such software is called the "Client"). You may also need to install certain third-party software. \

(b) You are responsible for any hardware, systems and/or software program(s) you use and any associated fees and expenses (i) to connect to or use the Internet, and/or (ii) other than the Client, to use any Materials.

(c) The Service, the Tracks and/or the Materials (including any Nextune promotional offers or codes redeemable for the Service, the Tracks and/or the Materials) are only for use as a background music source in your Venues and are not for any other commercial or personal use. Your rights under this Agreement are non-transferable (except as otherwise expressly authorized by Nextune). By using the Service, you acknowledge and agree that you have no right to transfer your rights or access to the Service to any other party or through any other means. 

5. REGISTRATION
(a) To use the Service, you will generally be required to register and provide certain information, including the location where the service will be used, a user name, a password and a valid email address ("Registration Data"). You may also be required to provide billing and/or additional information. You agree to provide accurate Registration Data and to update your Registration Data as necessary to keep it accurate.

(b) You agree that you will not allow others to use your member name, password and/or account and you are solely responsible for maintaining the confidentiality and security of your account. You agree to notify Nextune immediately of any unauthorized use of your password and/or account. Nextune shall not be responsible for any losses arising out of the unauthorized use of your user name, password and/or account and you agree to indemnify and hold harmless Nextune, its partners, parents, subsidiaries, agents, affiliates and/or licensors, as applicable, for any improper, unauthorized or illegal uses of the same.

6. USE OF SERVICE, SOFTWARE, TRACKS AND MATERIALS
(a) Software - The Client, and all other software made available by Nextune on or through the Service, are protected by intellectual property laws and your use of them is governed by this Agreement as well as any applicable end-user license agreements. A copy of the current Client End-User License Agreement ("Nextune EULA") is contained in the software available from Nextune, Inc.

(b) Tracks and Materials - The Tracks and Materials are owned by Nextune, its business partners, affiliates and/or licensors, as applicable, and are protected by copyright and other intellectual property laws. You agree not to use the Tracks and Materials in a way that would violate any laws and/or infringe the copyright(s) therein.  You further agree that the content rights holders that license their musical or other content to Nextune for use in the Service are intended third-party beneficiaries under this Agreement with the right to enforce the provisions that directly concern their content. You understand that your use of the Tracks and Materials is subject to the Usage Rules discussed below.

(c) You may not authorize any one else, encourage or allow any Tracks or Materials used or obtained by you to be reproduced, modified, displayed, publicly performed or displayed, broadcast, transferred, distributed or otherwise used by anyone else. You agree to advise Nextune promptly of any such unauthorized use(s).

7. USAGE RULES
(a) Your access to and/or use of any Track(s) may be limited by the rules assigned to the Track(s) by Nextune ("Usage Rules") and described in this section. You may not attempt (or support others' attempts) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with any Usage Rules or Tracks. Nextune reserves the rights to modify the Usage Rules at any time.

(b) A "Sample" is a portion of a Track or, in some cases, an entire Track or promotional music video that you can play (and, if applicable, view) via the Service on a promotional basis at no cost to you. You may play as many Samples as you like. You may not attempt (or support others' attempts) to capture, copy, download or transfer a Sample.

(c) A "Stream" is a Track that you play directly from and while you are logged on to the Service.  As a subscriber to any tier of the Subscription Service, you may play as many Streams as you like in your Venue while your subscription is current. In all cases, you may not attempt (or encourage others) to capture, copy, or download a streamed Track.  Nextune may also offer free Streaming access as part of promotions and/or free Service tiers. In all cases, Nextune may count the number of times that you stream each Track for royalty accounting and analysis purposes.

8. PROMOTIONAL CODES
If you have received a valid promotional code for Nextune, you should follow the instructions that you received with such promotion to redeem that code. If you have properly inputted a valid promotional offer, your account will be credited for the applicable promotional offer.  Promotional offers may include credit in a specific Dollar amount that you may apply in your account toward purchases and/or credit toward a particular tier of Subscription Service membership.   Nextune promotional offers are subject to any expiration dates that may be messaged with the offer and are not redeemable for cash (and any unused portion may not be returned for cash or any other value).  If no expiration date is stated, Nextune reserves the right to expire any promotional codes following one year from their distribution.  Nextune has the right to request alternative forms of payment and/or close customer accounts if a fraudulently obtained promotional offer or gift certificate is presented.

9. THE SUBSCRIPTION SERVICE
Nextune’s Subscription Service (sometimes called ONPREMISE MUSIC, ONPREMISE PLUS, ONPREMISE Music System Rental) all include unlimited Streaming to any PC, laptop or other Internet-enabled device located in your Venues. Each tier (Service Term) of the Subscription Service requires you to pay to become a Subscriber, and you will be charged on a recurring basis for your continued Subscription. If we make any changes to these terms and conditions that you do not wish to accept, your only remedy is to cancel your subscription service in accordance with section 15 of this agreement.

10. WARRANTIES AND REPRESENTATIONS
(a) The Company at all times holds title to the Service, including any equipment provided under the Service and not purchased by the Subscriber. The Company warrants the Service to be fully licensed for use by the Subscriber pursuant to this Agreement, including the public performance of the musical works contained in the Service (ASCAP and BMI) in the Subscriber Venue(s). The Company shall indemnify and hold harmless the Subscriber from any third party claims pursuant to the Subscriber's use of the Subscription Service provided, the Subscriber is not in breach of any of the terms of this Agreement.

(b) The Subscriber represents it is not currently licensed by ASCAP, SESAC or BMI and the Subscriber shall promptly notify the Company in the event the Subscriber becomes licensed by ASCAP, SESAC or BMI.

11. AGREEMENT TO PAY
(a) By completing a Subscription Service registration, you authorize Nextune to charge applicable recurring subscription fees to your designated billing payment method. Monthly subscribers are billed on a monthly cycle (though Nextune may also offer multi-month, annual and other billing cycles, in which case you will be billed according to the billing cycle that you registered for), which begins upon Subscription Service registration (or at the end of a limited free trial period, if applicable to a promotion that you joined through) and ends 30 days (or annually for annual members or otherwise depending upon your Service Term) thereafter (each a "Subscription Period").



(b) If you are joining Nextune under a subscription plan with an extended service term option (e.g., 1 year subscription billed monthly), Nextune will charge your billing payment method for each applicable installment without further advance notice.  If your billing payment method changes during the term of your subscription plan, you must immediately update the billing payment method associated with your Nextune account.  If Nextune is unable to charge your billing payment method for an installment, Nextune may: (i) immediately suspend or terminate your Service.

12. BILLING AUTHORIZATIONS - FREE TRAIL
(a) You may be required to provide billing payment method to register for a free trial offer to the Subscription Service. In that event, you agree that Nextune may obtain a pre-authorization for the fee amount that you will be charged if you complete the free trial and continue a Subscription Service membership. It is possible that some financial institutions may perceive these requested amounts as actual pending charges. These are not actual charges however, and Nextune will not be responsible for any results, such as an overdraft fee, that may occur to your account because of them.

(b) If you join a free Nextune Subscription Services trial, you will not be billed for the free offer during the free offer period. However, you will be billed for any other services that you purchase.  If you have provided Nextune with billing information in order to access your free trial, you must cancel your trial membership before the end of your free trial period or your membership will continue and you will be charged the applicable Subscription Services fee until you cancel.

13. RIGHT TO CANCEL
The Subscriber has the right to cancel the Service at aytime subject to the provision "EARLY TERMINATION" contained in this Agreement. If you cancel your subscription, Nextune will not refund any remaining portion of your subscription fees.  Cancellation will take effect at the end of the billing period during which you deliver notice to Nextune. To cancel your Service, please access your Account at www.onpremisemusic.com.

14. EARLY TERMINATION
(a) If you have elected an extended ONPREMISE Music Service term (i.e. 1 year, 2 year, 3 year, etc.) or any ONPREMISE Music System Rental, the Subscriber agrees to pay a termination fee equal to the difference of the service fee the Subscriber would have been charged for the actual time of the Subscriber's Service. For example, if the Subscriber elected a 3 year extended service period and terminated service after one year without cause, the fee charged for early termination would be the difference in the one year subscription fee and the 3 year subscription fee.

 Cause is defined as a failure of Nextune to cure a default under this Agreement after 30 days written notice by Subscriber to cure such default.

(b) Subscribers who have elected to rent the ONPREMISE Music System will be charged the full purchase price of the ONPREMISE Music System less 50% of the rental payments paid up until the date of early termination. In addition, any applicable sales taxes or federal taxes will apply.

(c) Nextune may at any time lose the right to make certain Tracks and/or Materials available entirely or for certain uses permitted as part of your tier of Service. In such event, you may no longer be able to play these Tracks. You agree that in the event Nextune loses any such right to a particular Track or Tracks will not constitute a default by Nextune or give rise to a waiver of this Early Termination provision provided the loss of such rights do not include substantially all Tracks available from Nextune.


15. RIGHT TO CHANGE SUBSCRIPTION FEES
All subscription fees are subject to change on a renewal basis upon notice from Nextune. If you have elected an extended service period (i.e. 1 year, 2 year or 3 year), then any Subscription Fee changes will not affect your then current service term but may take effect automatically upon renewal of a new service term unless you cancel your service in accordance with provision "RIGHT TO CANCEL" contained herein.

16. CUSTOMER SUPPORT
Please direct any questions concerning the Client, the Service, billing and/or Usage Rules to a Nextune customer service representative by visiting www.onpremisemusic.com/support and using the Email form.

17. RESTRICTIONS
You may not use the Service to transmit to a location outside of the Venue or, display, perform or otherwise make available any messages, content or materials (i) that are illegal, obscene, threatening, of a "spamming" nature, defamatory, or invasive of privacy; (ii) that constitute political campaigning or commercial solicitation or that contain software viruses or other computer code designed to interfere with the functionality of any computer systems; or (iii) that infringe third-party rights or harm minors in any way. You may not interfere with or disrupt the Service or any networks connected to or by the Service. In addition, you may not use a false email address or otherwise mislead as to your identity or to the origin of a message or content. By posting messages, inputting data, or engaging in any other form of communication through the Service, you agree that Nextune may copy, sublicense, adapt, transmit, publicly perform or display any such content to provide and/or promote the Service and/or to respond to any legal requirement, claim or threat. If Nextune 's use of such content exploits any proprietary rights you may have in such material, you agree that Nextune has an unrestricted, royalty-free, non-exclusive and perpetual worldwide right do so. You agree that any loss or damage of any kind that occurs as a result of the use of any messages, content or material that you upload, post, transmit, display or otherwise make available through your use of the Service is solely your responsibility.

18. CHARGES / BILLINGS
(a) You agree to pay for all Subscription Fees and Materials and any other items or services that you may purchase through the Service and Nextune may charge your billing payment method for any such payment(s). Nextune may, in its discretion, post charges to your billing payment method individually or may aggregate your charges with other purchases you make on the Service.

(b) You are responsible for keeping your account secure and confidential and you will be responsible for any charges that are incurred by any person through your account. All charges will be billed to the billing payment method you designate when you first make incur a charge. If any of your billing information changes, you must update that information in the "Billing Information" section of the "My Account" area.  If your credit card company or Paypal (or their intermediary service providers) updates your billing information for you by providing revised billing information to us for your existing account, we will use that information to continue to bill your existing account (for example, if you lost your credit card but maintained your Visa or MasterCard account with a new account number, Visa or MasterCard may automatically send us your new account number.)

19. RIGHT TO CHANGE PRICES
(a) All prices for products within the Service are subject to change by Nextune at any time subject to Taxes and section 13, 14 and 15 of this agreement. Prices quoted do not include any applicable taxes, including sales taxes. Nextune reserves the right to change this policy at any time.

(b) You 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.

19. EXPLICIT CONTENT
Certain music content may be subject to the Recording Industry Association of America ("RIAA") "Parental Advisory Label" (as defined at http://www.riaa.com/issues/parents/advisory.asp). The RIAA assigns the Parental Advisory Label to an entire album and not the individual songs on the album. Nextune makes every reasonable effort to identify these Tracks in advance with an "explicit" rating notice in the form of an (X) within the Service ("Explicit Tracks"). However, Nextune does not assume any responsibility to accurately label Explicit Tracks. The Subscriber bears the responsibility to sample the tracks it choooses to determine their suitability for their public performance. Nextune shall have no liability or responsibility to you for any content or materials, including Explicit Tracks, that may be available in connection with the Service that you might find to be offensive, indecent or objectionable.

20. YOUR USE OF NEXTUNE WEBSITES AND ELEMENTS OF THE SERVICE
(a) You may not use any “deep-link”, “page-scrape”, “robot”, “spider” or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of any Nextune websites, the Service or any Tracks or Materials or in any way reproduce or circumvent the navigational structure or presentation of the Service to obtain or attempt to obtain any materials, documents or information through any means not purposely made available through the Service.  Nextune reserves the right to bar any such activity, including via software and other electronic means.

(b) You may not attempt to gain unauthorized access to any portion or feature of the Service, or any other systems or networks connected to the Service or to any Nextune server, or to any of the services offered on or through any Nextune websites, by hacking, password “mining” or any other illegitimate means. You may not probe, scan or test the vulnerability of any Nextune websites and/or the Service or any connected network, nor breach any of Nextune’s security or authentication measures.

(c) You may not reverse look-up, trace or seek to trace any information on any other user of or visitor to any Nextune website or the Services, or exploit the Service or any service or information made available or offered by or through the Site, in any way where the purpose is to reveal any third party information. 

(d) You agree that you will not take any action that imposes an unreasonable or disproportionately large load on the infrastructure of Nextune’s websites, Service or other systems. You agree not to use any device, software or routine to interfere or attempt to interfere with the proper working of the Service.

21. INTERNATIONAL CONSIDERATIONS
Due to requirements from our content licensors, the Service is only available to residents of the United States . You understand and agree that you may not sign up for, access, or attempt to use the Service in Venues from countries outside of the U.S. or Canada.

22. PRIVACY & CONFIDENTIALITY
(a) Nextune will not use any information obtained from you in connection with the service for any other purpose other than to provide you with the service. Any information provided by you in any form is considered confidential and for the express purpose of providing you access, assistance or instruction in using the serivce. This does not include any information made public by you or any information that is already in the public domain when provided to Nextune.

(b) For additional information regarding Nextune 's use of information collected in connection with the Service, please refer to Nextune 's Privacy Policy, a copy of which is available at http://www.NextuneOnPremise.com/privacypolicy.html and which is expressly made part of this Agreement.

23. COPYRIGHT INFORMATION
As noted above, the Service, the Tracks, the Client and the Materials contain and/or comprise copyrighted or other proprietary subject matter, and your use of them is governed by this Agreement, certain end-user license agreements, and applicable law. Notices. Nextune 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, Tracks, Materials and/or the Client constitutes copyright infringement, please send a notice to Nextune.

24. PATENT AND TRADEMARK
All trademarks, service marks, trade names, slogans, logos, and other indicia of origin that appear on or in connection with the Service are the property of Nextune, Inc.

25. VIOLATION OF INTELLECTUAL PROPERTY RIGHTS
If Nextune receives a notice alleging that you have engaged in behavior that infringes Nextune 's or other's intellectual property rights or reasonably suspects the same, Nextune may suspend or terminate your account without notice to you.

26. NEXTUNE REMEDIES
You agree that any unauthorized use of any Nextune website, the Service, the Tracks, the Materials, the Client or any related software or materials would result in irreparable injury to Nextune and/or its affiliates or licensors for which money damages would be inadequate, and in such event Nextune , 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 Agreement shall be construed to limit remedies available pursuant to statutory or other claims that Nextune may have.

27. INDEMNITY
You agree to indemnify and hold harmless Nextune and its agents, employees, representatives, licensors, affiliates, parents and subsidiaries from and against any and all claims, losses, demands, causes of action and judgments (including attorneys' fees and court costs) arising from or concerning your breach of this Agreement and your use of any Nextune website, the Service, the Tracks, the Client or the Materials and to reimburse them on demand for any losses, costs or expenses they incur as a result thereof.

28. TERMINATION
Nextune may in its sole discretion terminate this Agreement or suspend your account at any time upon notice to you in the event that you breach (or Nextune reasonably suspects that you have breached) any provision of this Agreement. If Nextune 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. You understand and agree that your cancellation of your account and Subscription Service is your sole right and remedy with respect to any dispute with Nextune.

29. DISCLAIMERS
You understand and agree that your use of any Nextune website, the Service, Tracks, Client, and the Materials is at your own sole risk.

THE NEXTUNE WEBSITE(S), SERVICE, TRACKS, MATERIALS AND THE CLIENT (THE "PRODUCTS") ARE PROVIDED "AS IS" AND WITHOUT WARRANTY BY NEXTUNE OR ITS AGENTS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES, LICENSORS, BUSINESS PARTNERS AND/OR SUPPLIERS (THE "NEXTUNE ENTITIES"), AS APPLICABLE, AND, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE NEXTUNE ENTITIES EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NONINFRINGEMENT. THE NEXTUNE ENTITIES DO NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE PRODUCTS WITH RESPECT TO PERFORMANCE, ACCURACY, RELIABILITY, SECURITY CAPABILITY OR OTHERWISE. YOU WILL NOT HOLD ANY NEXTUNE ENTITY RESPONSIBLE FOR ANY DAMAGES THAT RESULT FROM YOU ACCESSING (INCLUDING ANY SOFTWARE OR SYSTEMS YOU USE TO ACCESS) THE SERVICE OR USING THE PRODUCTS INCLUDING, BUT NOT LIMITED TO, DAMAGE TO ANY COMPUTER, SOFTWARE OR SYSTEMS OR PORTABLE DEVICES YOU USE TO ACCESS THE SAME . NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY PERSON SHALL CREATE A WARRANTY IN ANY WAY WHATSOEVER RELATING TO ANY OF THE NEXTUNE ENTITIES. NEXTUNE MAKES NO WARRANTY THAT ANY PARTICULAR COMPUTER DEVICE WILL BE COMPATIBLE WITH THE CLIENT OR THE CLIENT WILL FUNCTION IN ALL COMPUTERS. IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOUR SYSTEM(S) WILL FUNCTION CORRECTLY WITH THE CLIENT.

UNDER NO CIRCUMSTANCES SHALL ANY NEXTUNE ENTITY BE LIABLE FOR ANY UNAUTHORIZED USE OF ANY NEXTUNE WEBSITE, THE SERVICE, TRACKS, MATERIALS AND/OR THE CLIENT. UNDER NO CIRCUMSTANCES SHALL ANY NEXTUNE ENTITY BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF THE NEXTUNE ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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, THE NEXTUNE ENTITIES 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 US$10.

30. LAW AND LEGAL NOTICES
This Agreement and any other terms or documents referred to herein represent your entire agreement with Nextune with respect to your use of the Service. 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 laws of the State of Washington , excluding its conflicts of law rules, govern this Agreement and your use of the Service, the Tracks, the Materials and the Client. You expressly agree that the courts in the State of Washington, King County, have exclusive jurisdiction over any claim or dispute with Nextune or relating in any way to your account or your use of any Nextune website, the Service, the Tracks, the Materials and the Client. You further agree and expressly consent to personal jurisdiction over you in the federal and state courts in King County in connection with any such dispute including any claim involving Nextune.

© 2005-2010 Nextune, INC.