AFFINITY TOOLBARS: END USER LICENSE AGREEMENT


This End User License Agreement ("Agreement"), applies to Affinity Toolbars (each, an "Affinity Toolbar" or "Toolbar"), including without limitation versions of the Toolbar which are co-branded with third party brands or bear other brands owned by or licensed to Mindspark Interactive Network, Inc. ("Mindspark", "we" or "us"). Upon the Installation of the Toolbar, the following features will be added to your Internet browser (these features may vary for different versions of the Toolbar and/or if you utilize any customization tools offered by the version of the Toolbar you download):
Toolbar Search Functions: The Toolbar installs into your Internet browser and allows you to search the Internet with MyWebSearch® and may provide other search features as further described herein. These search features, as well as other non-search-related features may be customizable by you. Use of the MyWebSearch search services is subject to the MyWebSearch Terms of Service and Privacy Policy that you can find here and here, respectively.
Default Search, Address Bar Queries, DNS Errors: If you consent to make MyWebSearch your default search service, your Internet browser default search feature will be set to MyWebSearch and you will access MyWebSearch search services (i) by entering queries in your browser chrome search box; (ii) by entering queries in your browser address bar, and/or (iii) in response to misspelled, incorrectly formatted or unresolved DNS submissions in your browser address bar.
Home Page: During the download process, you may be given the option to reset your Internet browser's default homepage to home.mywebsearch.com or some other webpage. If you exercise/consent to this option, the specified webpage will become your default home page and will appear each time you open your Internet browser.
You must be 13 years of age or older to install or to use an Affinity Toolbar. If you are not yet 13, do not download an Affinity Toolbar.
If you are at least 13, but not yet 18 years of age, please have your parent or legal guardian review this Agreement with you, discuss any questions you might have, and install the Toolbar for you.
If you are a parent, or a guardian, you are responsible for exercising supervision over your children's on-line activities. If you do not agree to the Agreement, do not let your child use an Affinity Toolbar or associated features. If you are the parent or guardian of a child under 13 and believe that he or she is using the Toolbar, please contact us at eula@help.mywebsearch.com.
THIS PRODUCT AND ALL THE FEATURES LISTED ABOVE ARE FREE. NO REGISTRATION OR PERSONAL INFORMATION IS REQUIRED FOR GENERAL USE OF THE TOOLBAR. CERTAIN TOOLBAR FEATURES MAY REQUIRE REGISTRATION TO ACCESS THE FULL FUNCTIONALITY OF A FEATURE. THIS PRODUCT IS NOT SPYWARE OR ADWARE.
This Agreement is a legal contract between you and Mindspark Interactive Network, Inc. If you do not understand or agree with any part of the rules outlined in this Agreement, please do not use the Affinity Toolbar. If you have any questions or concerns regarding what is written here, please let us know by emailing us at eula@help.mywebsearch.com. Do not use the Affinity Toolbar until these questions and concerns have been answered to your satisfaction and you agree to abide by the Agreement. By using the Toolbar, you represent and warrant that you have the right, authority and capacity to enter into this agreement and to abide by all its terms and conditions, just as if you had signed it. This Agreement applies to the Toolbar and all features and functionalities developed by Mindspark. If you are installing a version of the Toolbar that includes third party features and functionalities or accesses third party content, such third party features, functionalities and content are subject to such third party's terms of service.
In this Agreement "Website" shall refer to the MyWebSearch website (including all web pages in the mywebsearch.com domain) and "Services" shall refer to the search and other services offered through the Toolbar.
1. License Grant
Subject to the terms and conditions of this Agreement, Mindspark grants you a non-exclusive, revocable, limited license, to (a) download and install the most current generally available version of the Toolbar, and (b) use the Toolbar you download and install solely for your personal, non-commercial purposes. The term Toolbar includes all updates thereto which we make available to you.
2. License Conditions
You may not rent, sell, lease, sublicense, distribute, assign, copy, or in any way transfer the Toolbar or this Agreement or use the Toolbar for the benefit of any third party in any manner. You may not modify, decompile, disassemble, or otherwise reverse-engineer the source code of the Toolbar, or attempt to do so for any reason. Further, you may not access, create or modify the source code of the Toolbar in any way. You do not have the right to and may not create derivative works of the Toolbar. All modifications or enhancements to the Toolbar remain our sole property. You understand that we, in our sole discretion, may modify or discontinue or suspend your right to access any of our services or to use the Toolbar at any time, and we may at any time suspend or terminate any license hereunder and disable the Toolbar or any of its component features.
We reserve the right to add features or functions to the Toolbar. When installed on your computer, the Toolbar periodically communicates with our servers to request automatic updates when we release a new version of the Toolbar, or when we make new features available.
You may use our Toolbar and Website only for lawful purposes. The services we provide are subject to, and you agree that you shall at all times comply with, all local, state, national, and international laws, statutes, rules, regulations, ordinances and the like applicable to use of the Toolbar and Website. You agree not to use the Toolbar, Website, or any other services provided by Mindspark to conduct any business or activity or solicit the performance of any activity, which is prohibited by law, or any contractual provision by which you are bound.
3. Mindspark Features on the Affinity Toolbar
By downloading the Affinity Toolbar, you will be installing a toolbar in your Internet browser (which may include both your active browser and any other compatible Internet browser(s) resident on your computer), and any supported email functions and/or chat functions with one or more of the following features provided by Mindspark Interactive Network, Inc.:
SEARCH BOX: This is a search box located within the toolbar that allow you to search the Internet with search results from our search results partner.
SEARCH ASSISTANT: This provides relevant links and results when you make a search request in your browser address bar or if your browser address (DNS) request is invalid, misspelled or incorrectly formatted.
HOMEPAGE, NEW TAB PAGE: As part of the download process for the Toolbar, you may be given the option to reset your Internet browser's homepage to a Mindspark homepage product and/or reset your new tab page to a Mindspark new tab product. If you do not wish to reset your homepage and/or new tab page to the Mindspark homepage and/or Mindspark new tab product(s), you can decline/opt-out of these features by checking or unchecking the appropriate box(es) during the download process for the Toolbar. The Mindspark homepage product is subject to the Policies/Terms of Service linked to in the footer of the homepage itself.
FUNWEBPRODUCTS: Certain versions of the Toolbar may include features of or links to one or more of Mindspark's FunWebProducts™ suite of websites and applications or other Mindspark- or Mindspark affiliate-provided websites or products. The FunWebProducts applications include Webfetti™, Zwinky® Smiley Central® Kazulah™, MyFunCards™, Popular Screensavers™, CursorMania™ IWON® and others. Any such features or websites are governed by their own terms of use/terms of service and privacy policies. All such terms and policies are readily accessible via links in the footers of each website.
In addition, an Easy Installer will be downloaded to install this software. It does not install any other software and is automatically deleted the first time you turn off or reboot your computer after installation of the above-described products.
You will also have access to websites and applications related to the features described above. THE TOOLBAR AND ALL FEATURES LISTED ABOVE ARE FREE.
4. Third Party Features on the Affinity Toolbar
By downloading an Affinity Toolbar, you will be installing a toolbar in your Internet browser (and any supported email functions and/or chat functions) that may include one or more of the following features provided by third party vendors:
PARTNER FEATURES, LINKS, RSS FEEDS: The Toolbar may include features, links to, or RSS (or other) feeds from third party partners. Mindspark is not responsible for third party features or content. If you are installing a version of the Toolbar that includes third party features and functionalities or accesses third party content, such third party features, functionalities and content are subject to such third party's terms of service and privacy policies, which may be found on the relevant partner's website.
5. Ownership
You acknowledge and agree that the Toolbar is licensed, not sold to you. You acknowledge that the Toolbar, including all code, protocols, software and documentation provided to you by us in conjunction with the Toolbar or our services are our property or the property of our licensors, and are protected by U.S. and international copyright, trademarks, patents and other proprietary rights and laws relating to trade secrets, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral or similar rights. You may not delete, alter, or remove any copyright, trademark, or other proprietary rights notice we have placed on the Toolbar. All rights not expressly granted hereunder are expressly reserved to us and our licensors.
You represent and warrant that you are either the owner or an authorized user of the computer where the Toolbar is installed. You may use the Toolbar, Website or Services only for lawful purposes, and you agree that you shall at all times comply with, all local, state, national, and international laws, statutes, rules, regulations, ordinances and the like applicable to the use of our Toolbar, Website and Services. You agree not to use the Toolbar, Website or Services to conduct any business or activity or solicit the performance of any activity, which is prohibited by law or by any contractual provision by which you are bound.
6. Registration
NO REGISTRATION OR PERSONAL INFORMATION IS REQUIRED for general use of the Toolbar. If any features or associated websites or services of the Toolbar require registration or the provision of personal information, such requirement will be made known to you when you first use such feature, associated website or specific service. The collection and usage policies applicable to collected information may vary between different Toolbar features, associated websites or services, but in each case, the relevant policies will be made available either via a link within the Toolbar itself, or via a link within the feature or associated website.
Registration for third party sites: Collection and use of personal information by third party websites associated with or accessible from the Toolbar, is governed by the separate terms of service for each third party site.
Passwords. In order to access certain Website- or Toolbar-related services, you may be required to accept additional terms and conditions and/or establish an account including a unique ID and password. You are the sole and exclusive guardian of any password and ID combination issued or chosen by to you. Maintaining the confidentiality and security of your Password(s) and ID(s) is solely your responsibility. You are fully responsible for all transactions undertaken by means of any account opened, held, accessed or used via your password and ID. You shall notify us immediately and confirm in writing any unauthorized use of accounts or any breach of security, including without limitation any loss, theft or unauthorized use of your password(s), and/or ID(s) or any related account. If we have reasonable grounds to suspect that the security of your Password and/or ID has been compromised, we may suspend or terminate your account, refuse any and all current or future use of the services, and pursue any appropriate legal remedies. We shall not be responsible for any losses incurred in connection with any misuse of any Password or ID.
Information you provide upon registration. If you provide any information in connection with the use of any other Website- or Toolbar-related services, you must provide and maintain accurate, complete and current information. If we have reasonable grounds to suspect that your information is inaccurate, not current or not complete, we may suspend or terminate your use of the Toolbar or associated websites, and pursue any appropriate legal remedies. You agree that we shall have the right to use the information you provide to us for the purposes described in this Agreement and in furtherance of your use of our services.
7. Un-installation/Removal of the Affinity Toolbar
The Affinity Toolbar can be easily uninstalled. If you want to uninstall this product, there are several ways to do so:
  • From your computer's "Start" button, select "Settings", then "Control Panel"; (ii) Double-click on "Add/Remove Programs" for Windows XP or "Programs and Features" for Windows Vista; (iii) Select "My Web Search" (Product name)** or "(Affinity Toolbar name)**; (iv) Click "Remove"; (v) You must reboot your computer to completely remove the toolbar.
  • You can also click on the settings button on the right hand corner of the Toolbar, then select "Uninstall (Product name)" under "Toolbar Options".
  • If the Zwinky FunWebProduct application is a part of the Toolbar you download, we note that the Zwinky icon appearing in your computer's system tray is an integral part of the Zwinky experience. If you wish to change the settings so that, upon starting your computer, the Zwinky icon will not automatically appear in the system tray, you can enter Zwinktopia via http://www.zwinky.com, click on "Edit Preferences" and uncheck the checkbox next to "Automatically load the Zwinky icon in the system tray on startup".
8. Privacy
The Affinity Toolbar does not collect any personal information about you (such as your name, email address, etc.). Further, it does not: (a) collect or report back to us (or anyone else) any information about your activities on sites you visit on the Internet; (b) collect any search queries or information that you provide to any other web-sites; (c) serve pop-ups when you are on other websites; or (d) collect or report back to us (or anyone else) any data regarding your computer keystrokes or other data unrelated to the services the Toolbar provides.
Search Queries. The Toolbar, in the course of processing a given search query, sends a request to our servers. This request includes the keyword query, time of day, browser type, default language setting, IP address, an anonymous unique ID, and a code which identifies the marketing or distribution source of the toolbar used by you to conduct your search. If the search query is being generated as the result of a misspelled URL or search term entered in to the browser address bar, we also receive the misspelled URL address or search term. We use this information in order to properly process your search request. For example, this data provides us with: information on which language you prefer to use; aggregated click information for the purpose of ensuring that our search partners are appropriately compensating us; information that allows us to make accurate payments to our distributors; aggregated usage and retention information; and aggregated search query information for the purpose of further monetizing commercially oriented search keywords. All information collected from a search query is recorded on a non-personally identifiable basis and is kept strictly anonymous. The information collected is stored in a query log for up to six months. In addition, all information about search activity is evaluated only on an aggregated basis (except in response to a customer service inquiry or legal process).
Cookies. The Toolbar also uses "cookies". We do this for two reasons. First, we use the cookies to store a code designating a marketing or distribution source for the Toolbar. This information allows us to properly distinguish between Toolbar versions for purposes of analyzing retention and usage per marketing or distribution source, on an aggregated basis. Second, the Toolbar uses cookies to store user preferences. For example, we use a cookie to record which search engine you have selected as your default provider. Upon accessing the search results pages, cookies may also be placed on your computer, to store your use preferences. We do not use cookies to track your use of the Internet in any other way or to store any personally-identifiable information, and we do not disclose cookie information to third parties (other than as required by legal process). Certain third party partners/service providers may also use cookies in relation to services they provide on or via the Toolbar. For example, when you click on a third party offer presented via an Affinity Toolbar product, such third party may place an affiliate cookie on your computer to facilitate your interaction with the third party. Please note - third party sites, offers and/or cookies are not controlled by us. Such content is subject to policies of its respective third party owner (found on the third party’s website). We strongly suggest that you familiarize yourself with the policies of any third party vendor you choose to engage.
Configuration Requests/Communications with our Servers. The Toolbar sends a configuration request when you start your browser. This request is approximately 5k in size and includes only anonymous data such as IP address, browser type, and information about the specific release date and distribution source of your Toolbar, as outlined above. In addition, periodically when using the Toolbar, small communications may be sent to our servers indicating certain user preferences, as outlined above. All such information is anonymous, non-personally identifiable, and is used only for purposes of delivering search and Toolbar services and content in accordance with your preferences.
If the Toolbar is ever sold or all or substantially all of the assets relating to the Toolbar and/or associated websites are transferred to another entity, we may transfer all information provided by or collected from you, including personally identifiable information, in order to ensure continuity of your service. We will disclose information, including personally identifiable information, data acquired by cookies, and other data, where required by a subpoena, interception order or other lawful process. We also reserve the right to disclose such information when we believe, in our sole judgment and to the extent consistent with applicable law, that such disclosure is necessary to protect the rights or safety of others or to enforce, or protect our rights under, this agreement. If you wish to withdraw your consent to the communication and data usage as described herein, you should uninstall the Toolbar from your computer.
9. Access and Interference
You agree that you will not use any robot, spider, other automatic or manual device or process to interfere or attempt to interfere with the proper working of any of the Toolbar, Website or Services, except to remove our Toolbar from a computer of which you are an owner or authorized user. You may not violate or attempt to violate the security of our Website or Toolbar. We reserve the right to investigate occurrences which may involve such violations, and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations. You agree that it is your responsibility to install anti-virus software and related protections against viruses, Trojan horses, worms, time bombs, cancelbots or other techniques that may have the effect of damaging, destroying, disrupting or otherwise impairing a computer's functionality or operation.
10. Disclaimer of Warranty
YOUR ACCESS AND USE OF THE TOOLBAR, WEBSITE AND SERVICES IS AT YOUR SOLE RISK. WE PROVIDE THE WEBSITE, TOOLBAR AND SERVICES ON AN "AS IS," AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION OR NON-INFRINGEMENT. WE MAKE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE TOOLBAR, WEBSITE OR SERVICES AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF THE TOOLBAR OR USE OF THE WEBSITE OR SERVICES.
WE DO NOT MAKE ANY REPRESENTATION OR WARRANTY: (A) AS TO THE TIMELINESS, SEQUENCE, ACCURACY, COMPLETENESS, OR RELIABILITY OF THE TOOLBAR, WEBSITE OR SERVICES (B) THAT THE TOOLBAR, WEBSITE OR SERVICES WILL BE AVAILABLE OR WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, OR (C) THAT ERRORS OR DEFECTS RELATED TO THE TOOLBAR, WEBSITE OR SERVICES WILL BE CORRECTED. WE ALSO DO NOT WARRANT THAT THE TOOLBAR, WEBSITE OR SERVICES, OR THE INFORMATION AVAILABLE THEREFROM, IS APPROPRIATE, ACCURATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION.
MINDSPARK EXPRESSLY DISCLAIMS ALL WARRANTIES RELATING TO PRODUCTS, FEATURES AND/OR SERVICES PROVIDED BY THIRD PARTIES.
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.
THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
11. Termination
You may terminate this Agreement at any time by uninstalling and destroying all copies of the Toolbar in your possession or control.
We may discontinue or alter any aspect of the Services, including, but not limited to, (i) restricting the time the Services are available, (ii) restricting the amount of use permitted, and (iii) restricting or terminating any user's right to use the Services, at our sole discretion and without prior notice or liability. We may also, in our sole discretion, terminate your use of the Services and/or disable your use of the Toolbar, for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement or any other terms or policies applicable to your use of the Toolbar, Website or Services. Further, you agree that we shall not be liable to you or any third-party for any termination of your access to the Services.
12. Content and Infringement
Links and Search Results. The Toolbar and Website may provide access to search results or other links to third party websites or resources. Because we have no control over such sites and resources, you acknowledge and agree that we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content (defined below), goods or services available on or through any such site or resource.
Access to Content through the Toolbar and Website. You understand that all content, including, without limitation all data, links, articles, graphic or video messages and all information, text, software, music, sound, graphics or other materials ("Content") made available or accessible through the Toolbar, Services and Website, whether publicly available or privately transmitted, is the sole responsibility of the entity or person from whom it originated. You understand and agree that by using the Toolbar, Services or the Website you may be exposed to Content that may be offensive, indecent or objectionable in your community. You agree to accept all risks associated with the use of any Content, including any reliance on the accuracy or completeness of such Content. Under no circumstances will Mindspark be liable in any way for any Content created by or originating with entities other than Mindspark, including, but not limited to, any errors or omissions in any such Content, or for loss or damage of any kind incurred as a result of the transmission or posting of such Content by means of the Toolbar or links to such Content from the Website.
The Toolbar and Website are exposed to various security issues, and should be regarded as unsecure. By accepting this Agreement, you acknowledge and accept that the Toolbar, Website, and any information you download or offer to share by means of the Toolbar or Website, may be exposed to unauthorized access, interception, corruption, damage or misuse, and should be regarded as insecure. You accept all responsibility for such security risks and any damage resulting therefrom.
Copyright Protection of Content you display using our services. You are solely responsible for any Content you contribute, submit or display on or thorough your use of the Toolbar, Website or Services. It is your obligation to ensure that such Content, including photos, text, video and music files, is not violating any copyright. You must either own or have a license to use any copyrighted Content that you contribute, submit or display.
Mindspark respects and expects its users to respect the rights of copyright holders. On notice, Mindspark will act appropriately to remove Content that infringes the copyright rights of others. Mindspark reserves the right to disable the access to the Toolbar, Websites or other services by anyone who uses them to repeatedly infringe the intellectual property rights of others. If you believe that our services contain elements that infringe your copyright rights, please provide our Copyright Agent with the following information:
  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
  • a description of the copyrighted work that you claim has been infringed;
  • a description of where the material that you claim is infringing is located on the site;
  • your address, telephone number, and email address;
  • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
  • a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Please contact Mindspark Interactive Network, Inc.'s Copyright Agent for Notice of claims of copyright infringement as follows:
Mindspark Interactive Network, Inc.
One North Lexington, 9th Floor
White Plains, NY, 10601
ATTN: Copyright Agent/Legal Dept.
email: dmca@mindspark.com
Objectionable Content. Mindspark may also act to remove Objectionable Content. "Objectionable Content" includes, but is not limited to:
  • Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, or libelous,
  • Content that is hateful, or advocates hate crimes, harm or violence against a person or group,
  • Content that may harm minors in any way;
  • Content that has the goal or effect of "stalking" or otherwise harassing another
  • Private information about any individual such as phone numbers, addresses, Social Security numbers or any other information that is invasive of another's privacy;
  • Content that is vulgar, offensive, obscene or pornographic,
  • Unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
  • Material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
If we become aware that, while using the Toolbar, Website or Services, you have uploaded, posted or shared Objectionable Content, we may disable your account.
Ownership of Content you Submit. Unless otherwise set forth at the point of submission, you retain ownership of all rights in any Content that you submit, through the use of the Website. However, you grant us permission to use such Content in any way we see fit, for instance for the purposes of promotion of the Services. If, at our request, you send content (such as contest submissions, polling questions) or you send us creative suggestions, ideas, notes, drawings, or other information (collectively, the "Submissions"), such Submissions shall be deemed, and shall remain, the property of Mindspark. None of the Submissions shall be subject to any obligation of confidence on the part of Mindspark, and Mindspark shall not be liable for any use or disclosure of any Submissions. Without limitation of the foregoing, Mindspark shall exclusively own all now known or hereafter existing rights to the Submissions of every kind and nature throughout the universe and shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions.
13. Limitation of Liability
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL MINDSPARK INTERACTIVE NETWORK, INC. BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY, GOODWILL, OR OTHER INTANGIBLE LOSSES (EVEN IF MINDSPARK INTERACTIVE NETWORK, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) OR OTHER RELIEF ARISING OUT OF, OR RELATED TO, THIS AGREEMENT OR TO: (i) YOUR USE OR THE INABILITY TO USE THE TOOLBAR, WEBSITE OR SERVICES. IN NO EVENT WILL OUR DIRECT LIABILITY OR THE DIRECT LIABILITY OF ANY OTHER COVERED PARTY TO YOU HEREUNDER EXCEED $100.00.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR DAMAGES, IN SUCH STATE OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
14. Indemnification
YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS MINDSPARK INTERACTIVE NETWORK, INC., ITS PARENTS, AFFILIATE AND SUBSIDIARY COMPANIES, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS AND AGENTS FROM ANY AND ALL THIRD PARTY CLAIMS, LIABILITY, DAMAGES AND/OR COSTS (INCLUDING, BUT NOT LIMITED TO, ATTORNEYS' FEES) ARISING FROM YOUR USE OF THE TOOLBAR, WEBSITE AND/OR SERVICES, YOUR VIOLATION OF THE TERMS OF SERVICE OR YOUR INFRINGEMENT, OR INFRINGEMENT BY ANY OTHER USER OF YOUR ACCOUNT, OF ANY INTELLECTUAL PROPERTY OR OTHER RIGHT OF ANY PERSON OR ENTITY. YOU AGREE TO IMMEDIATELY NOTIFY MINDSPARK INTERACTIVE NETWORK, INC. OF ANY UNAUTHORIZED USE OF YOUR ACCOUNT OR ANY OTHER BREACH OF SECURITY KNOWN TO YOU.
15. Export Controls
The Toolbar and the underlying information and technology may not be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) any country to which the U.S. has currently embargoed goods; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Toolbar, you agree to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list, and that you will otherwise comply with all applicable export control laws.
16. Notice to Government End Users
The Toolbar and associated software, programs and documentation hereunder downloaded or otherwise installed for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), is provided with Restricted Rights as "commercial Items," as that terms is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Pursuant to Federal Acquisition Regulation 12.212 (48 C.F.R. §12.212), the U.S. Government shall have only those rights specified in the license contained herein. The U.S. Government shall not be entitled to (i) technical information that is not customarily provided to the public or to (ii) use, modify, reproduce, release, perform, display, or disclose commercial computer software or commercial computer software documentation except as specified herein. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 C.F.R. 52.227-19, as applicable.
17. Applicable Law
The substantive laws of the State of New York in the United States of America, without regard to conflict of laws principles, shall govern all matters relating to or arising from this Agreement, and the use (or inability to use) the Toolbar, Website and Services. You hereby submit to the exclusive jurisdiction and venue of the appropriate State and Federal courts located in New York County, New York, with respect to all matters arising out of or relating to this Agreement, or the Toolbar, Website or Services.
18. Severability
If any provision of this Agreement is found by a court or other binding authority to be invalid, you agree that every attempt shall be made to give effect to the parties' intentions as reflected in that provision, and the remaining provisions contained in this Agreement shall continue in full force and effect.
19. Limitation of Actions Brought Against Us; No Waiver
You agree that any claim or cause of action arising out of your use of the Toolbar, software, the Website, related Services, or this Agreement, including any terms of service/use or privacy policies applicable to the Website, must be filed within one year after such claim or cause of action arose or it shall forever be barred, notwithstanding any statute of limitations or other law to the contrary. Our failure to enforce or exercise any provision of this Agreement or related right shall not constitute a waiver of that right or provision.
20. Customer Concerns.
If you encounter any problem with the Toolbar, or would like to send us your feedback, our Customer Service may be reached at customercare@help.mindspark.com.
LAST UPDATED: June 21, 2012
©2012 Mindspark Interactive Network, Inc. All rights reserved.