Mindspark Interactive Network, Inc and IAC Search and Media Europe Limited (“SAM EU”) (collectively, "Mindspark", "we", or "us") is pleased to provide you its website, and the related websites, applications, e.g. tool bars, content, products, forums and services made available, or available for download on the page on which these Terms of Service are posted (collectively, along with the Search Applications described in Section 1, the "MS Services"). If you are a resident of the EEA then SAM EU is the entity with whom you enter these terms. If you are resident elsewhere then these terms are with Mindspark.
IMPORTANT: BY USING THE SERVICE, YOU AGREE TO RESOLVE DISPUTES WITH MINDSPARK THROUGH BINDING ARBITRATION (AND WITH VERY LIMITED EXCEPTIONS, NOT IN COURT), AND YOU WAIVE CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS, AS DETAILED IN SECTION 14.
If you have any questions or concerns regarding these Terms of Service, please email us at firstname.lastname@example.org. Do not use the MS Services until your questions and concerns have been answered to your satisfaction and you agree to abide by the terms and conditions of this Terms of Service. We have recently updated our policies and we are in the process of translating it into several languages. If you do not have an appropriate language option and you have any questions please contact us via the methods described below.
A. Toolbar and Search Application Services. The MS Services offer a number of features that may allow you to enter and perform Internet searches (“Search Applications”), reset your Internet browser's default homepage and/or new tab page, customize widgets, and much more. To use such MS Services you may be required you to install such services into your Internet browser.
You must be 13 years of age or older to install or to use the MS Services (or over 16 years of age if you are resident in the EEA). If you are at least 13 (or 16 in the EEA) but not yet 18 years of age, please have your parent or legal guardian review this Terms of Service with you, discuss any questions you might have, and install the MS Services for you.
NOTICE TO PARENTS AND GUARDIANS: By granting your child permission to download and access a MS Service, you agree to the terms of this Terms of Service on behalf of your child. You are responsible for exercising supervision over your children's online activities. If you do not agree to this Terms of Service, do not let your child use the MS Services or associated features. If you are the parent or guardian of a child under 13 (or 16 in the EEA) and believe that he or she is using the MS Services, please contact us at email@example.com.
You may access the MS Services for personal, non-commercial purposes. Use of the MS Services is void where prohibited. By accessing or otherwise using the MS Services, you hereby acknowledge, warrant, and represent that (i) you have read, understand, and agree to be legally bound, and to abide, by these Terms of Service, just as if you had signed a written agreement; (ii) you have the right, authority and capacity to enter into this agreement and to abide by all the terms and conditions of these Terms of Service; and (iii) if you purport to be acting on the behalf of any person or entity, you are authorized to act on behalf of such party.
We reserve the right, at any time and from time to time, to temporarily or permanently, in whole or in part, to: (a) modify or discontinue the MS Services, including, but not limited to (i) restricting the time the MS Services are available, (ii) restricting use of certain MS Services to users in specified geographic regions, (iii) restricting the amount of use of the MS Services permitted (which may vary depending on membership level), and (iv) restricting or terminating any user's right to use the MS Services, with or without notice; (b) charge fees in connection with the use of all or part of the MS Services; (c) modify and/or waive any fees charged in connection with the MS Services; and/or (d) offer opportunities to some or all users of the MS Services. You agree that neither we nor any of our affiliates shall be liable to you or to any third party for any modification, suspension or discontinuance of the MS Services (in whole or in part), any content, or features offered through the MS Services. Your continued use of the MS Services following the posting of changes to these Terms of Service will constitute your acceptance of such changes. We may acquire or develop new MS Services from time to time that require additional terms of service. In such case, we will add these additional provisions in a product specific addendum or section that will only apply to such new MS Service and will not vary the terms of these Terms of Service in relation to your use of existing MS Services (and, as such, we will not be required to notify you of such additional terms unless you also use the new MS Services).
Subject to the terms and conditions set forth herein, and any applicable third party restrictions, Mindspark grants you a revocable, non-transferable, non-exclusive and non-sublicensable, limited right and license, to access and use the MS Services. Mindspark reserves all rights to ownership or use not expressly stated herein, and disclaim any and all implied licenses.
Post, email or otherwise transmit any submission that (a) is defamatory, abusive, harassing, threatening, or an invasion of a right of privacy of another person; (b) is bigoted, hateful, or racially or otherwise offensive; (c) is violent, vulgar, obscene, pornographic or otherwise sexually explicit; or (d) otherwise harms or can reasonably be expected to harm any person or entity;
Post, email or otherwise transmit any submission that infringes any intellectual property and/or proprietary rights of any party;
Post, email or otherwise transmit any illegal, unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation;
Post, email or otherwise transmit any 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;
Interfere with or disrupt the MS Services or servers or networks connected to the MS Services, or disobey any requirements, procedures, policies or regulations of networks or third party providers connected to, or providing the MS Services;
Collect or extract data through any robot, bot, software, or other automated method, otherwise “scrape” data posted on or through the MS Services, or manually extract data from the MS Services for any commercial purpose, or authorize any third party to do any of the foregoing;
Interfere with or disrupt the MS Services or servers or networks connected to the MS Services, or disobey any requirements, procedures, policies or regulations of networks or third party providers connected to, or providing the Services.
ALL MS SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND YOU USE THEM AT YOUR SOLE RISK. MINDSPARK EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY OTHER WARRANTY ARISING UNDER THE UNIFORM COMMERCIAL CODE, USAGE OF TRADE, COURSE OF CONDUCT OR OTHERWISE. WITHOUT LIMITATION, MINDSPARK MAKES NO WARRANTY THAT THE MS SERVICES WILL MEET YOUR REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE MS SERVICES WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF THE MS SERVICES OBTAINED WILL MEET YOUR EXPECTATIONS.
THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF AN MS SERVICES REMAINS SOLELY WITH YOU.
MINDSPARK EXPRESSLY DISCLAIMS ALL WARRANTIES RELATING TO SERVICES PROVIDED BY THIRD PARTIES.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MINDSPARK SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MINDSPARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE MS SERVICES; (II) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (III) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE MS SERVICES; OR (IV) ANY OTHER MATTER RELATING TO THE MS SERVICES. IN NO EVENT SHALL MINDSPARK'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE MS SERVICES.
IF ANY OF THE EXCLUSIONS SET FORTH IN THIS SECTION IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN ALL SUCH EXPRESS, IMPLIED AND STATUTORY WARRANTIES SHALL BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE DATE ON WHICH YOU FIRST ACCESS THE MS SERVICES, AND NO WARRANTIES SHALL APPLY AFTER SUCH PERIOD.
Mindspark may in its sole discretion and at any time terminate your use of the MS Services and/or disable your use of the MS Services, for any or no reason, including, without limitation, if we believe that you have violated or acted inconsistently with the term or policies applicable to your use of the MS Services. We may do so without advance notice, such as (but not limited to) if we discontinue the MS Services or any aspect or features of them. Further, you agree that Mindspark shall not be liable to you or any third-party for any termination of your access to the MS Services.
The provisions of these Terms of Service pertaining to disclaimers, exclusion of damages, limitations of liability and indemnification shall survive termination.
You acknowledge that the MS Services contain software, graphics, photos, or other material (collectively, "Content") that are protected by copyrights, patents, trademarks, trade secrets or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereafter developed. All Mindspark generated Content and Content provided to Mindspark by its partners and licensors is copyrighted individually and/or as a collective work under the U.S. copyright laws; further, Mindspark owns a copyright in the selection, coordination, arrangement and enhancement of all Content in the MS Services. Unless otherwise specified, modification of the Content or use of the Content for any other purpose, including use of any such Content on any other website, the MS Services or networked computer environment is strictly prohibited.
The Mindspark, MyWay, MyWebSearch, Ask and Ask.com name, logos and affiliated properties, are the exclusive property of Mindspark Interactive Network, Inc. and/or our corporate affiliates. All other trademarks appearing on the MS Services are trademarks of their respective owners. Our partners or service providers may also have additional proprietary rights in the content which they make available through the MS Services. The trade names, trademarks and service marks owned by us, whether registered or unregistered, may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion. Nothing contained on the MS Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any of our trade names, trademarks or service marks without our express prior written consent.
Further, we own and assert a copyright in the selection, coordination, arrangement and enhancement of this website. Our partners may also have additional proprietary rights in the content that they make available through the MS Services. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way commercially exploit, any of the content on this website.
A) 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 MS 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.
B) Mindspark Copyright Protection Policy. 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 MS Services or other services by anyone who uses them to repeatedly infringe the intellectual property rights of others. If you believe a MS Service, or elements, infringe your copyright rights, Please contact Mindspark Interactive Network, Inc.'s Copyright Agent at:
Mindspark Interactive Network, Inc.
29 Wells Avenue, Suite 300
Yonkers, NY 10701
ATTN: Copyright Agent/Legal Dept.
Please ensure you communication includes the following:
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,(sufficient for us to locate it) 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.
C) Objectionable Content. Mindspark may also act to remove Objectionable Content. The decision to remove Objectionable Content shall be made at Mindspark's sole discretion. "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 user;
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.
D) 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 marketing and/or promotion of the MS 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.
E) Repeat Infringer Policy. Mindspark will terminate a user's access to a MS Service if, under appropriate circumstances, the user is determined to be a repeat infringer.
F) No Intended Third Party Beneficiaries. No third party is an intended beneficiary of this License.
The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), the MS Services, or the Website shall be BINDING ARBITRATION administered by the American Arbitration Association. The one exception to the exclusivity of arbitration is that you have the right to bring an individual claim against the Company in a small-claims court of competent jurisdiction. But whether you choose arbitration or small-claims court, you may not under any circumstances commence or maintain against the Company any class action, class arbitration, or other representative action or proceeding.
By using the MS Services in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and the Company (except for matters that may be taken to small-claims court). AS FURTHER SET FORTH IN SECTION 14, YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can, but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. For details on the arbitration process, see our Arbitration Procedures.
Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against the Company (except for small-claims court actions) may be commenced only in the federal or state courts located in New York County, New York. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.
This Agreement, and any dispute between you and the Company, shall be governed by the laws of the state of New York without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act.
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
Mindspark and you agree that Mindspark and you will resolve any disputes, claims or controversies on an individual basis, and that any disputes, claims, and controversies arising out of or relating to these Terms of Service (such as with respect to their validity or enforceability) or the MS Services (for example, relating to any person’s access to or use of the MS Services, or the provision of content, products, services, or technology on or through the MS Services, or the handling of information collected on the MS Services), will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Mindspark and you further agree that Mindspark and you shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to these Terms of Service (such as with respect to their validity or enforceability) or the MS Services (for example, relating to any person’s access to or use of the MS Services, or the provision of content, products, services, or technology on or through the Service, or the handling of information collected on the MS Services).
If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in federal court located in New York County, New York.
This Class Action Waiver section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Mindspark, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms of Service (such as with respect to their validity or enforceability) or the MS Services (for example, relating to any person’s access to or use of the MS Services, or the provision of content, products, services, or technology on or through the MS Services, or the handling of information collected on the MS Services).
If you have any questions about this Terms of Service or our information-handling practices, or wish to review, amend or delete any personal information we are storing, please contact us by email or postal mail as follows:
Mindspark Interactive Network, Inc.
29 Wells Avenue, Suite 300
Yonkers, NY 10701
ATTN: Privacy Officer/Legal Dept.