MINDSPARK INTERACTIVE NETWORK, INC.®
TOOLBAR END USER LICENSE AGREEMENT
1. Toolbar Installation
If you download the toolbar (the “Toolbar”), you will be:
You must be 13 years of age or older to install or to use the Toolbar. If you are not yet 13, do not download the Toolbar.
If you are at least 13 but not yet 18 years of age, please have your parent or legal guardian review this END USER LICENSE 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 END USER LICENSE AGREEMENT, do not let your child use the 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 firstname.lastname@example.org.
This End User License Agreement is a legal contract between you and Mindspark Interactive Network, Inc (“Mindspark”). If you do not understand or agree with any part of the rules outlined in this END USER LICENSE AGREEMENT, please do not use the Toolbar. If you have any questions or concerns regarding what is written here, please let us know by emailing us to email@example.com. Do not use the Toolbar until these questions and concerns have been answered to your satisfaction and you agree to abide by the END USER LICENSE 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.
We encourage you to read the terms and policies linked in this EULA and in connection with the Toolbar carefully. By using any of the Toolbars and accessing the services in connection with the Toolbar, you are accepting the practices described in the respective policies. Mindspark is a part of the IAC family of businesses, which includes a variety of brands such as Ask.com, College Humor, Dictionary.com, Match.com. For a list of IAC business, please visit www.iac.com.
THIS PRODUCT AND ALL THE SEARCH RELATED FEATURES ARE FREE. CERTAIN TOOLBAR FEATURES MAY REQUIRE REGISTRATION AND/OR PAYMENT TO ACCESS THE FULL FUNCTIONALITY OF A FEATURE. THIS PRODUCT IS NOT SPYWARE OR ADWARE.
2. Features on the Toolbar
By downloading a Toolbar provided by Mindspark, you will be installing a toolbar in your Internet browser (and any supported email functions and/or chat functions), with one or more of the following features (these features may vary for different versions of the Toolbar and/or if you utilize any customization tools offered by the version for the Toolbar you download) and may also include one or more additional software downloads or features provided by third party vendors (the "Mindspark Products"):
SEARCH BOX: This is a search box located within the toolbar that will help you 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.
ASK® HOMEPAGE, NEW TAB PAGE: As part of the download process for the Toolbar, you may be given the option to reset your homepage and/or reset your new tab page to an Ask® home page and new tab product. (Note: If you do not wish to reset your homepage and/or new tab page to the Ask homepage and/or Ask new tab product(s), you can opt-out of these features by checking or un-checking the appropriate box(es) during the download process for the Toolbar.) The Ask homepage and new tabs product is subject to the Policies/Terms of Service linked to in the footer of the pages.
Live Sports: Check in on your favorite teams right from your computer.
Hulu: Get a front-row seat to small screen favorites.
Show Recaps: Catch up on episodes you may have missed.
TV News: Get the scoop on your favorite stars and series.
TV Listings: Find out when new episodes of the hottest shows are airing.
Watch Movies: Reserve a front-row seat to big screen favorites.
Networks: Easily tune in to top networks in one convenient place.
SAFE PC REPAIR: The Safe PC Repair toolbar features help to improve your computer’s performance and includes the following additional software downloads or features provided by third party vendors:
IOLO TECHNOLOGIES SOFTWARE: The Safe PC Repair Toolbar requires an additional download of certain software owned by iolo Technologies. The use of such software is governed by the End User License Agreement available at: http://www.iolo.com/company/legal/eula/.
BATTLES: This button provides you with access to the Battle Lobby where you can choose other MyOwnSuperHero users as opponents to challenge.
MISSIONS: This button provides you with access to Mission Control where you can select from a variety of challenging missions to attempt.
UPGRADE: This button prompts you to upgrade your Superhero with new equipment and/or virtual assets.
GUFFINS: The Guffins toolbar may include buttons with the following features:
VIEW: This button allows you to view your Guffins pet and check on your pet's attributes including its energy, health, happiness and cleanliness levels.
PLAY: This button prompts you to play with your Guffins pet. Playing with your pet will increase its happiness level.
FEED: This button prompts you to feed your pet. Feeding your pet will increase its energy, health and happiness levels.
WASH: This button prompts you to wash your pet. Washing your pet will increase its cleanliness level.
SLEEP: This button prompts your pet to sleep. Sleeping will increase your pet's health and energy levels.
SEND A PET: This button allows you to select and send a pet to a friend, via their Facebook wall or by e-mail.
CHANGE LOOK: This button allows you to make style changes to your adopted pet, including the pet's color, background and name.
Memory Performance Index ("MPI") - This button allows you to track your performance during a particular session. A user can use the MPI to track his/her performance, skill improvement, or to compare their cognitive ability to that of other users.
GAMES - This button allows you to access a selection of games which will test various aspects of your memory.
STATUS - Using this button, you can access a report of your progress for each specific game. Your scores will be displayed alongside comparison scores from other users.
Play – direct access to SoundDabble sounds in single sound play mode.
Sequence – direct access to SoundDabble and the ability to play a sequence of sounds.
Record – direct access to the SoundDabble recorder which enables you to record your own messages and sounds.
My Sounds – quick access to your recorded sounds.
Home page– Accessed through the “Home” button, this area provides you with direct access to Scrapbook Creator.
EZ Create – This button provides the user with a ‘ready-made’ scrapbook with selected theme, decorations and photos taken automatically from their Facebook account.
Printables – This button gives you access to a selection of printable kits containing items for classic scrapbooking.
My Scrapbooks – This button provides access to your gallery of scrapbooks you have created and saved.
The Gallery – This button give you access to a public gallery of scrapbooks created and shared by site members.
MARINE AQUARIUM LITE: The Marine Aquarium Lite Toolbar includes one or more of the following additional software downloads or features provided by third party vendors:
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
ButterflyFieldTM: The Butterfly Field toolbar provides instant access to customizable butterfly screensaver features, information on butterfly species, a screen saver settings menu, etc.
ButterflyFieldTM Software Notification: The Butterfly Field toolbar may include a separate software application available as a widget and displayed as a button on the Butterfly Field Toolbar (the “ButterflyField Software”). The ButterflyField Software includes a ButterflyField screen saver widget that allows you to view and modify a collection of digital butterflies directly from the Butterfly Field Toolbar and use this ButterflyField Software as a Windows screensaver or launch it manually from your Toolbar. In addition, the ButterflyField Software includes an animated screensaver, options to alter the number and types of butterflies that appear and options to change the background that appears in the screensaver. Privacy Notice for the ButterflyField Software: Information collected. In order to use the ButterflyField Software, the application tracks and collects certain non-identifiable information such as how many times the software is opened in aggregate and on average for all users, time spent, error reports, etc. In addition, certain additional software settings may be saved to a local file in the your computer’s registry. How information is used and shared. Information collected is used and shared in accordance with the privacy section in this EULA. In addition, the information is used to help us understand our users including their interaction with the application, administer our Services, diagnose technical problems, and general analytical purposes. We may share the information with third parties to facilitate our use of the information collected. ButterflyFieldTM Open Source License and Copyright Notice: The ButterflyField Software includes features and functionalities that incorporates the following additional open software and is subject to the notices provided in the following notice located here.
Video Download ConverterTM: The Video Download Converter (“VDC”) toolbar provides the ability to download and convert videos into various formats selected from the option menu.
Elite Unzip Toolbar provides the ability to compress and decompress files, which incorporates the following open source software:
IMPORTANT NOTE: Verified VPN functionalities will not work on Ask.com, MyWebSearch.com, or MyWay.com; therefore, your IP address and other data may be disclosed on such domains.
3. Third Party Features on the Toolbar
By downloading the Toolbar, you will be installing a toolbar in your Internet browser (and any supported email functions and instant messenger functions) with the following features provided by third party vendors:
WIDGETS: When using the Ask Homepage located at home.tb.ask.com, you may have the ability to add certain widgets to customize your homepage. Users who have the Toolbar may also be able to add widgets directly to their toolbar. The widgets available on the Ask Homepage are provided by one or more third party vendors. Your use of each widget is governed by separate terms of service associated with such widget. You may find such terms of service via a link within the widget itself, or on the website of the relevant widget provider.
partner 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.
THIRD-PARTY WEBSITES: There may be places accessible through the Toolbar and associated applications where you may click on a link to access other websites that do not operate under this EULA. For example, if you click on an advertisement, you may be taken to a website that we do not control. These third-party websites may independently solicit and collect information, including personal information, from you and, in some instances, provide us with information about your activities on those websites. We recommend that you consult the privacy statements of all third-party websites you visit.
NO REGISTRATION OR PERSONAL INFORMATION IS REQUIRED FOR THE GENERAL USE OF THE TOOLBAR. CERTAIN TOOLBAR FEATURES MAY REQUIRE REGISTRATION TO ACCESS THE FULL FUNCTIONLAITY OF A FEATURE OF THE OR ASSOCIATED WEBSITES OR SERVICES, SUCH AS LISTED HEREIN AND IN THE APPLICABLE PRIVACY POLICIES.
UNIFIED REGISTRATION: As a service to our users, we may consolidate registration data for the products listed herein, including other products that we control, and certain other specified websites, services or applications accessible via the Toolbar, so that users are only required to provide registration information once, and would then be able to use the same unique ID and password to access all such websites, services or applications.
Passwords. In order to access certain 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 owner 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. You represent and warrant that you are either the owner or an authorized user of the computer where the Toolbar is installed. If you provide any information in connection with the use of any other services Licensor offers, 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.
5. Un-installation/Removal of the Toolbar
The Toolbar can be easily uninstalled. If you want to uninstall this product, there are several ways to do so:
6. Privacy and Use of Data
Registration, Information from other Sources and Information about
If you choose to submit your name, email address, or other account or registration information, we generally use this information to provide you personalized service. We may use such information to contact you to respond to a request from you, or in connection with your use of the Toolbar. We do not associate your search queries or selected search results in any manner with your name, email address, or account or registration information, unless required to do so by legal process or unless specifically instructed to do so by you. If you have registered with us, to review, revise, or delete the account information that we have collected about you online and have maintained, please log in to your profile/account page and edit accordingly. We may also periodically obtain both personal and non-personal information about you from IAC businesses, business partners, social networks, contractors and other third parties and add it to our account information or other information we have collected.
If you choose to login to a feature accessible via the Toolbar via a social networking site, you are granting Mindspark permission to access and use general information about you, as provided by the social network, for purposes of establishing a unique account for you. For example, if you choose to use the services in connection with Facebook and Facebook Connect™ and you choose to set your privacy controls to include "Everyone", you are granting Facebook permission to share with Mindspark and others general information about you, including without limitation access to your and your friends' names, profile pictures, gender, user IDs, and connections. Facebook may also make information about the location of your device and your age available to application owners in order to help them implement appropriate security measures and control the distribution of age-appropriate content. We strongly recommend that you review the policies of any social networks you use to make sure you are comfortable with the ways they use information you share with them.
We may also collect and store personal information about other people that you provide to us. If you use any products in connection with the Toolbar to send others (friends, relatives, colleagues, etc.) a product such as a gift, information that may interest them or messages (such as invitations) through our system, or otherwise communicate with them in connection with the services associated with the Toolbar, we may store your personal information, and the personal information of each such recipient. If you use any products in connection with the Toolbar to store other people's contact information or event info (such as birthdays, anniversaries, etc.), we will store such information until you delete it. Similarly, if you use any products in connection with the Toolbar to upload, share and/or distribute content (including videos, comments or other submissions), and such content contains personal information about others, such information may be stored in order to allow for such uploading, sharing and/or distribution. Please understand that although information, once deleted, is not available in connection with the Toolbar, it may remain stored indefinitely in our back-up and archival records.
Search Queries. The Toolbar, in the course of processing a given search query, sends a request to our servers. This request may include the keyword query, search query text, time of day, browser type, default language setting, IP address, an anonymous unique ID, the address of the last URL you visited before clicking through to the website, the data in any undeleted cookies that your browser previous accepted from us 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 may 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. 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).
Information about the search queries you submit in connection with the Toolbar and how you interact with search results may also be used to personalize the content and advertisements that we present to you. You may receive such customized ads in connection with the Toolbar or on websites of other Mindspark or affiliate businesses, and on third-party sites with advertising managed by Mindspark or another affiliate business.
Configuration Requests. The Toolbar also sends a configuration request when you start your browser and/or visit our Website. This request is approximately 5k in size and may include only anonymous data such as IP address, browser type, browser language, and information about the specific release date and distribution source of your Toolbar, the address of the last URL you visited before clicking through to the Website, the data in any undeleted cookies that your browser previous accepted from us, as outlined above and as otherwise provided. Such information is anonymous, non-personally identifiable, and is used only for purposes of delivering search services and content in accordance with your preferences.
We do not sell, rent or trade any personally identifiable information you provide when using the Toolbar or associated websites. 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.
We do not screen, filter or monitor user submissions to the Mindspark Product websites, nor do we scrape or glean personal information from any such submissions; however, to the extent that any video, comment or other user submission contains personal information (whether name, likeness, address, telephone number or otherwise, and whether such information pertains to the submitter or someone else), such personal information may be viewed by other users of the website. Such postings are governed by the policies made available at the relevant Mindspark Product′s website. Also, whenever you voluntarily disclose personal information on publicly-viewable web pages, that information will be publicly available and can be collected and used by others. We cannot control who reads your posting or what other users may do with the information you voluntarily post, so we encourage you to exercise discretion and caution with respect to your personal information. Once you have posted information, you may not be able to edit or delete such information.
7. Legal Terms and Conditions
Subject to the terms and conditions of this END USER LICENSE AGREEMENT (this "Agreement), Mindspark Interactive Network, Inc. and its parent and subsidiary companies (collectively, "Licensor", "we", "us" or "our") grant you a non-exclusive, revocable, limited license, to (a) download and install the most current generally available version of the Toolbar (including all updates thereto), and (b) use the Toolbar you download and install solely for your personal, non-commercial purposes. "Toolbar" means the toolbar and all features available through the toolbar. "Websites" means all the websites associated with the features of the Toolbar.
7.1. License Conditions
Mindspark Interactive Network, Inc. owns the Toolbar. The Toolbar, including all code, content, protocols, software, and documentation provided to you by Licensor are Licensor's property or the property of Licensor's licensors, and are protected by U.S. and international copyright, trademarks, patents and other proprietary rights and laws relating to Intellectual Property Rights. "Intellectual Property Rights" means, collectively, rights under patent, trademark, copyright and trade secret laws, 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 or the Websites. All rights not expressly granted hereunder are expressly reserved to Licensor and its licensors. You understand that we, in our sole discretion, may modify or discontinue or suspend your right to access any of our services or 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.
You cannot buy, sell, or tamper with the Toolbar. You may not rent, sell, lease, sublicense, distribute, assign, copy (other than a single copy for your own backup purposes), or in any way transfer the Toolbar or use the Toolbar for the benefit of any third party. You may not install the Toolbar on any computer without permission from the owner of that computer. 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 the Toolbar or the Websites, 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 services. You may not modify, reverse-engineer, decompile, disassemble, or otherwise discover the Toolbar, or attempt to do so for any reason. 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 the sole property of Licensor.
Toolbar Updates. We reserve the right to add additional features or functions to the existing Toolbar. When installed on your computer, the Toolbar periodically communicates with our servers. We may require the updating of the Toolbar on your computer when we release a new version of the Toolbar, or when we make new features available. This update may occur automatically or upon prior notice to you and may occur all at once or over multiple sessions. You understand that we may require your review and acceptance of our then-current END USER LICENSE AGREEMENT before you will be permitted to use any subsequent versions of the Toolbar. You acknowledge and agree that we have no obligation to make available to you any subsequent versions of the Toolbar.
You may use our Toolbar and Websites 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 Licensor Toolbar and Websites. You agree not to use the Toolbar, Websites, or any other services provided by Licensor 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
7.2. Content and Infringement
Links and Search Results. The Toolbar and Websites may provide access to search results or other links to other third party websites or resources, including social networking sites. 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, goods or services available on or through any such site or resource.
Access to Content and Third Party Features through the Toolbar, Applications and Websites. 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, application and Websites, 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, application or the Websites 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 Licensor be liable in any way for any Content created by or originating with entities other than Licensor, 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 Websites. The Toolbar and Websites are exposed to various security issues, and should be regarded as unsecure. By accepting this Agreement, you acknowledge and accept that the Toolbar, Websites, and any information you download or offer to share by means of the Toolbar or Websites, 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 the Content you display on or thorough the use of the Websites. It is your obligation to ensure that the display of any 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 display on the Websites.
Licensor respects and expects its users to respect the rights of copyright holders. On notice, Licensor will act appropriately to remove Content that infringes the copyright rights of others. Licensor 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:
Please contact Mindspark Interactive Network, Inc.’s (f/k/a IAC Consumer Applications & Portals, Inc.) Copyright Agent for Notice of claims of copyright infringement as follows:
One North Lexington, 9th Floor
White Plains, NY, 10601
ATTN: Copyright Agent/Legal Dept.
Objectionable Content. Licensor will also act appropriately to remove Objectionable Content. "Objectionable Content" includes, but is not limited to:
If we become aware that, while using any Website, you have uploaded, posted or shared Objectionable Content, we may disable your account.
Ownership of Content you Submit. Unless otherwise set forth in the terms of service for any of the Websites, you retain ownership of all rights in the content that you display on or through the use of the Websites. However, you grant us permission to use such Content in any way we see fit, for instance for the purposes of promotion of our 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 Interactive Network. None of the Submissions shall be subject to any obligation of confidence on the part of Mindspark Interactive Network, and Mindspark Interactive Network shall not be liable for any use or disclosure of any Submissions. Without limitation of the foregoing, Mindspark Interactive Network 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.
7.3. Disclaimer of Warranty
YOUR ACCESS AND USE OF THE SOFTWARE, WEBSITES AND SERVICES IS AT YOUR SOLE RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SOFTWARE. WE PROVIDE THE SOFTWARE, THE WEBSITES AND THE CONTENT 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. MINDSPARK INTERACTIVE NETWORK, INC. MAKES NO GUARANTEES AS TO THE SITES AND INFORMATION LOCATED WORLDWIDE THROUGHOUT THE INTERNET WHICH YOU MAY ACCESS AS A RESULT OF THE USE OF THE SOFTWARE, INCLUDING AS TO: (I) THE ACCURACY, CURRENCY, CONTENT, OR QUALITY OF ANY SUCH SITES AND INFORMATION, OR (II) WHETHER ANY SEARCH USING THE SOFTWARE MAY LOCATE UNINTENDED AND OBJECTIONABLE CONTENT.
MINDSPARK EXPRESSLY DISCLAIMS ALL WARRANTIES RELATING TO PRODUCTS 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.
You may terminate this Agreement at any time by uninstalling and destroying all copies of the Toolbar in your possession or control and ceasing to use or access the Websites. We may terminate this Agreement or your account (or any part thereof), disable the Toolbar or cease providing any service at any time in our sole discretion. You agree that we shall not be liable to you or any third-party for any termination or disabling of the Toolbar, services or ceasing to operate the Websites. For termination of specific Mindspark Products, or accounts associated with any of the other Websites, please refer to the separate terms of service applicable to the relevant site(s), which are available for review at the relevant site.
7.5. Limitation of Liability
YOU UNDERSTAND AND AGREE THAT NONE OF US, OUR SUBSIDIARIES, OUR AFFILIATES, OUR SUPPLIERS, OUR ADVERTISERS, OUR MERCHANT PARTNERS, NOR OUR OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS (THE "COVERED PARTIES") ARE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, AND COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, HOWSOEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE RESULTING FROM: (A) THIS AGREEMENT OR THE USE OF, OR THE INABILITY TO USE, THE SOFTWARE, SITES OR SERVICES, (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, (C) THE STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SITES, THE SOFTWARE, APPLICATION OR SERVICES, (D) RELIANCE ON CONTENT OR POSTINGS ON THE SITES OR SERVICES, OR (E) ANY OTHER MATTER RELATING TO THIS AGREEMENT, THE SOFTWARE, THE APPLICATION, THE SITES OR THE SERVICES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUR DIRECT LIABILITY OR THE DIRECT LIABILITY OF ANY OTHER COVERED PARTY TO YOU HEREUNDER EXCEED $100.00. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MIGHT NOT APPLY TO YOU.
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 OUR 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 IAC CONSUMER APPLICATIONS & PORTALS OF ANY UNAUTHORIZED USE OF YOUR ACCOUNT OR ANY OTHER BREACH OF SECURITY KNOWN TO YOU.
7.7. 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.
7.8. Notice to Government End Users
Any Toolbar, software 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 Toolbar" and "Commercial Computer Toolbar 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 Toolbar clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Toolbar - Restricted Rights at 48 C.F.R. 52.227-19, as applicable.
These END USER LICENSE AGREEMENT, and the relationship between you and us are governed by the laws of the State of New York, without regard to its conflict of law provisions. You and we agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York County, New York.
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.
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 Websites, related services, or this Agreement, including any terms of service/use or privacy policies applicable to any of the Websites, 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.
If you have any questions about this Agreement or the Toolbar or Websites, feel free to contact us at: firstname.lastname@example.org.
Effective June 28, 2013
© 2013 Mindspark Interactive Network, Inc. All rights reserved.