Last Updated: February 3, 2009
We reserve the right, at our discretion, to change, modify, add, remove or otherwise revise portions of these Terms of Service, or any incorporated policies, rules or guidelines, at any time. Please check the MyWay Site periodically for changes. Your continued access to the MyWay Site and/or use of any MyWay Services following the posting of changes to these terms constitutes your acceptance of the revised Terms of Service.
MyWay is a multi-purpose service which allows you to use or access a wealth of products and services, including e-mail, search services, forums, games, shopping services, news, financial information and a broad range of other content (collectively, the "MyWay Services"). MyWay Services may be offered by MyWay itself, or by a third party partner/service provider. Unless stated otherwise, these Terms of Service apply to all MyWay Services, including those currently offered as well as any new products or services that we may add in the future.
General Terms of Service and Restrictions on Use of Materials
You may access the MyWay Site, and use the MyWay Services for personal, non-commercial purposes. By accessing or otherwise using the MyWay Site and/or MyWay Services, you are acknowledging and agreeing that 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. If you do not comply with the Terms of Service at any time, MyWay reserves the right to terminate your access to all or some of the MyWay Services, which may include disabling your MyWay email account. MyWay may discontinue or alter any aspect of the MyWay Services, including, but not limited to, (i) restricting the time the MyWay Services are available, (ii) restricting the amount of use permitted, and (iii) restricting or terminating any user's right to use the MyWay Services, at MyWay's sole discretion and without prior notice or liability. You are responsible for all charges associated with connecting to the MyWay Services through an available access number. You are also responsible for obtaining or providing all access lines, telephone and computer equipment (including modem), or other device, necessary to access the MyWay Services. You further certify that you are an individual and that you are 13 or older.
In order to use certain MyWay Services you must become a registered user of the MyWay Site. You agree that MyWay user names are the property of MyWay, and we reserve the right, in our sole discretion, to change, remove or replace any user name for any reason. We may refuse to grant you, and you may not use, an MyWay user name that is already being used by someone else; that may be construed as impersonating another person; that belongs to another person; that violates the intellectual property or other rights of any person; that is offensive; or that we reject for any other reason in our sole discretion. Please note that your user name may be viewed by the public, so you should not choose a user name that personally identifies you.
If you elect to register to use the MyWay Services and/or utilize the MyWay Site, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the MyWay registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it accurate. If you provide any information that is untrue, inaccurate, or incomplete, or MyWay has reasonable grounds to suspect that such is the case, MyWay has the right to suspend or terminate your account and refuse any and all current or future use of the MyWay Site and/or MyWay Services (or any portion thereof).
In addition to any other Registration Data, to register with MyWay you will be required to choose a password and an account name. You are solely responsible for maintaining the confidentiality of any password you may use to access the MyWay Services, and agree not to transfer your user name or password, or lend or otherwise transfer your use of or access to the MyWay Services, to any third party. You are fully responsible for all activity that occurs in connection with your user name or password. You agree to immediately notify us of any unauthorized use of your user name or password or any other breach of security related to your account or the MyWay Services, and to ensure that you "log off"/exit from your account (if applicable) at the end of each session. We are not liable for any loss or damage arising from your failure to comply with any of the foregoing obligations.
Forums; Email Service
MyWay may offer users access to Forums, and may also provide registered users with access to email services. A "Forum" refers to a bulletin board, virtual community or other means for users to engage in public commentary or discussion. Both Forums and email are offered as part of the MyWay Services. Forums and e-mail are offered for personal, non-commercial use only. You shall not, without MyWay's express written approval, distribute or otherwise publish via any of the MyWay Services any material containing any solicitation of funds, promotion, advertising, or solicitation for goods or services.
As with all MyWay Services, your privilege to use MyWay email and participate in the Forums is dependent on your continued compliance with these Terms of Service, specifically including the Community Standards and Conduct listed below. MyWay may revoke your privileges, terminate your registration/account or take any other measures deemed by MyWay to be appropriate, in its sole discretion, to enforce these Terms of Service if violations are brought to our attention.
In addition to any other rights or remedies available to it, MyWay reserves the right to immediately suspend, terminate, access and investigate the email or user account of any user upon receipt of a subpoena or law enforcement request, or when MyWay believes, in its sole discretion, that a user is transmitting or is otherwise connected with the distribution of unsolicited bulk email messages (SPAM) or any harassing email messages, or with any fraudulent, misleading or illegal activities. Because of the difficulty associated with quantifying damages, if actual damages cannot be reasonably calculated then you agree to pay MyWay liquidated damages of $5 for each piece of unsolicited bulk Email transmitted from or otherwise connected with your account or the maximum liquidated damages permitted under law, whichever is greater; otherwise you agree to pay MyWay's actual damages, to the extent such actual damages can be reasonably calculated.
Notwithstanding the foregoing, in order to permit MyWay to protect the quality of its products and services, you hereby consent to MyWay employees being able to access your account and records on a case by case basis to investigate complaints or other allegations or abuse. MyWay shall not disclose the existence or occurrence of such an investigation unless required by law.
You should consider all Forum communications to be public and not private communications. Although MyWay reserves the right to remove without notice any Forum posting for any reason, we have no obligation to delete content that you may find objectionable or offensive. By uploading materials to any Forum or submitting any materials to us, you automatically grant (or warrant that the owner of such materials has expressly granted) us and our service partners a perpetual, royalty-free, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate, and create derivative works from and distribute such materials or incorporate such materials into any form, medium, or technology now known or later developed throughout the universe. In addition, you warrant that all so-called "moral rights" in those materials have been waived.
MyWay reserves the right to monitor some, all, or no areas of the Forums for adherence to these or other rules that may be published from time to time. You acknowledge that by providing you with the ability to distribute content, MyWay is acting as a passive conduit for such distribution and MyWay is not undertaking any obligation or liability relating to any content or activities in any Forum or email.
Email Storage and Delivery; Termination of Inactive Accounts
The amount of Email storage space per member may be limited. Email accounts may be archived at such time intervals as IWON or its third party service provider(s) determine in their sole discretion. Some Email messages may not be processed due to space constraints, outbound message limitations or disruptions in the system(s). You agree that IWON is not responsible or liable for the deletion or failure to store messages or other information.
Email accounts may be terminated and/or deleted from our system if they remain inactive for a period of ninety (90) or more days. In the event of a suspension or deletion of an email account, messages (whether sent, received, in draft form or archived) and address book entries will no longer be accessible.
If, on your own or at our request, you submit content (e.g., postings to Forums, responses to surveys, etc.), communications, creative suggestions, ideas, notes, drawings, or other information (collectively, "Submissions"), you hereby grant to MyWay and its affiliates a royalty-free, perpetual, irrevocable, sub-licensable, transferable, worldwide license to use, copy, modify, incorporate into other works, display, perform, transmit and distribute such Submissions or any portion thereof, in or through any medium, whether now known or hereafter created.. MyWay shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the submitter. None of the Submissions shall be subject to any obligation of confidence on the part of MyWay, and MyWay shall not be liable for any use or disclosure of any Submissions. You represent and warrant that you own the contents of any Submission or otherwise have sufficient rights in the Submission to grant to MyWay the license set forth above.
Community Standards and Conduct
You acknowledge that all content, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such content originated. This means that you are entirely responsible for all content that you post, email or otherwise transmit via the MyWay Services. MyWay does not control all of the content posted on or via the MyWay Site or MyWay Services and, as such, does not guarantee the accuracy, integrity, completeness, non-infringement or quality of such content. You understand that by using the MyWay Site or MyWay Services, you may be exposed to content that is offensive, indecent or objectionable. Under no circumstances will MyWay be liable in any way for any content, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed or otherwise transmitted on or via the MyWay Site or MyWay Services.
You agree to not use the MyWay Services (including, without limitation, the email service and the Forums) to:
- upload, post, email or otherwise transmit any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
- harm minors in any way;
- impersonate any person or entity, including, but not limited to, an MyWay official, forum leader, guide or host, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the Service;
- solicit other users of the MyWay Site to join or become members of any online or other service;
- upload, post, email or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
- upload, post, email or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
- upload, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation, except in those areas that are designated for such purpose;
- upload, 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;
- disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the MyWay Services or an MyWay Forum are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
- interfere with or disrupt the MyWay Services or servers or networks connected to the MyWay Services, or disobey any requirements, procedures, policies or regulations of networks or third party providers connected to, or providing the MyWay Services;
- intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
- "stalk" or otherwise harass another member or user of the MyWay Services; or
- collect or store personal data about other users, or members.
Links/External Sites and Resources
MyWay and its service providers utilize diligent efforts to maintain the MyWay Services, but MyWay and its service providers are not responsible for any defects or failures associated with the MyWay Services, including, without limitation, the email service, or any damages (such as lost profits or other consequential damages) that may result from any such defects or failures. In addition, MyWay and its service providers make no guarantees as to the sites and information located worldwide throughout the Internet to which you may access as a result of the use of the MyWay Services, including as to: (i) the accuracy, currency, content, completeness, non-infringement or quality of any such sites and information, or (ii) whether any search using the MyWay Services may locate unintended and objectionable content.
PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:
THE MYWAY SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND YOU USE THEM AT YOUR SOLE RISK. MINDSPARK INTERACTIVE NETWORK, INC. 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 AND NON-INFRINGEMENT.
WITHOUT LIMITATION, MYWAY MAKES NO WARRANTY THAT THE MYWAY SERVICES WILL MEET YOUR REQUIREMENTS, THAT THEY WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE MYWAY SERVICES WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED THROUGH THE MYWAY SERVICES WILL MEET YOUR EXPECTATIONS.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE MYWAY SERVICES, INCLUDING EMAILS SENT VIA THE MYWAY SERVICES, IS DONE AT YOUR SOLE RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU FROM MYWAY PERSONNEL OR THROUGH THE MYWAY SERVICES SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY NOT EXPRESSLY PROVIDED FOR IN THESE TERMS OF SERVICE.
Disclaimer Regarding Financial Information
The MyWay Services allows you to obtain information on companies, stock prices, bonds, and other investments or financial matters. The MyWay Services, including all such financial information, is provided for informational purposes only, and no information you may obtain is intended by MyWay to be used for trading or investing purposes. MyWay shall not be responsible for the accuracy, usefulness or availability of any information transmitted via the MyWay Services, and shall not be liable for any trading or investment decisions made based on such information.
Disclaimer Regarding Shopping Retailers
The MyWay Services provides shopping services to help you locate and potentially purchase products from online and offline retailers. MyWay does not, however, control these independent retailers and MyWay does not provide any assurance, warranty or guarantee of any kind that you will be satisfied with their products or services.
When shopping by means of services provided by MyWay you acknowledge and agree that:
MyWay does not endorse any of the products or services linked to, from or through the MyWay Services, nor has MyWay taken any steps to confirm the accuracy or reliability of any of the information provided by third parties through MyWay or their own Web sites. MyWay expressly disclaims any and all representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party. We advise you to exercise your own judgment and investigate as you deem necessary before proceeding with any online or offline transaction with any of these third parties.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MINDSPARK INTERACTIVE NETWORK, INC. 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 MYWAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE MYWAY SERVICES AND/OR PARTICIPATE IN THE MYWAY SWEEPSTAKES ; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE MYWAY SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE MYWAY SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE MYWAY SERVICES OR OPERATION OF THE MYWAY SWEEPSTAKES. IN NO EVENT SHALL MYWAY'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 MYWAY SITE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR PASSWORD AND ACCOUNT. FURTHERMORE, YOU ARE ENTIRELY RESPONSIBLE FOR ANY AND ALL ACTIVITIES WHICH OCCUR UNDER YOUR ACCOUNT. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS MINDSPARK INTERACTIVE NETWORK, INC., ITS PARENTS, AFFILIATES 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 MYWAY SITE OR MYWAY SERVICES, YOUR VIOLATION OF THESE 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 MYWAY OF ANY UNAUTHORIZED USE OF YOUR ACCOUNT OR ANY OTHER BREACH OF SECURITY KNOWN TO YOU.
Termination and modification
You agree that MyWay, in its sole and absolute discretion, may terminate your password, account (or any part thereof) or use of the MyWay Services, and remove and discard any Submissions or other content within the MyWay Services, for any reason, including, without limitation, for lack of use or if MyWay believes that you have violated or acted inconsistently with the letter or spirit of the Terms of Service. MyWay may also in its sole discretion and at any time discontinue providing the MyWay Services, or any part thereof, with or without notice. You agree that any termination of your access to the MyWay Services under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that MyWay may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the MyWay Services. Further, you agree that MyWay shall not be liable to you or any third-party for any termination of your access to the MyWay Services.
The provisions of these Terms of Service pertaining to disclaimers, exclusion of damages, limitations of liability and indemnification shall survive termination.
COPYRIGHT AND COPYRIGHT NOTICES
You acknowledge that the MyWay Site and MyWay Services contain information, software, photos, video, text, graphics, music, sounds 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 MyWay-generated Content and Content provided to MyWay by its partners and licensors is copyrighted individually and/or as a collective work under the U.S. copyright laws; further, MyWay owns a copyright in the selection, coordination, arrangement and enhancement of all Content and in the MyWay Site as a whole. The MyWay name and logo are trademarks of Mindspark Interactive Network, Inc. All other trademarks appearing on the MyWay Site or MyWay Services are trademarks of their respective owners. MyWay's partners may also have additional proprietary rights in the Content which they make available through the MyWay Services. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit, any of the Content, in whole or in part, except that you may download one copy of the materials on any single computer for your personal, non-commercial home use only, provided you keep intact all copyright and other proprietary notices. Modification of the materials or use of the materials for any other purpose, including use of any such material on any other Web site or networked computer environment is strictly prohibited. In the event you download software provided by MyWay, the software, including any files, images incorporated in or generated by the software, and data accompanying the software (collectively, the "Software") are licensed to you by MyWay. MyWay does not transfer title to the Software to you. You may not redistribute, sell, export, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-readable form.
MyWay respects the intellectual property of others, and we ask our users to do the same. MyWay may, in appropriate circumstances and at its discretion, terminate the accounts of users who infringe the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide MyWay's Copyright Agent 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 MyWay 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; and
- a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner's behalf.
Please contact MyWay's Copyright Agent for notice of claims of copyright infringement at:
MyWay, c/o of Mindspark Interactive Network, Inc.
Attn: Legal Department
One North Lexington, 9th Floor
White Plains, NY, 10601
Governing Law and Other Miscellaneous Terms
These Terms of Service (and any further rules, policies or guidelines incorporated by reference herein) shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to these terms shall be filed only in the state or federal courts located in New York County in the State of New York and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. If any provision of these terms shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between you and MyWay relating to the subject matter herein and shall not be modified by you except in writing, signed by both parties. The Terms of Service will inure to the benefit of MyWay's successors, assigns and licensees.
These Terms of Service (and any further policies or documents incorporated by reference herein) constitute the entire understanding between MyWay and users of the MyWay Site and MyWay Services concerning the subject matter hereof and may not be modified except by revised Terms of Service posted by MyWay. These Terms of Service, which may be modified or amended by MyWay from time to time, in its sole discretion, supersedes all prior understandings and agreements, whether written or verbal with respect to the subject matter hereof. If any of the provisions of these Terms of Service will contravene, or be invalid under, the laws of the particular jurisdiction where performed, such contravention or invalidity will not invalidate the whole agreement, rather these Terms of Service will be construed as if not containing the particular provision or provisions held invalid, and the rights and obligations of the parties will be construed and enforced accordingly.
No failure or delay by MyWay in exercising any right, power or privilege under these Terms of Service will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under these Terms of Service.
The section titles in these Terms of Service are for convenience only and have no legal or contractual effect.
These Terms of Service are binding upon and shall ensure to the benefit of both parties and their respective successors, heirs, executor, administrators, personal representatives and permitted assigns. Users may not assign their rights or obligations hereunder without MyWay's prior written consent.
© 2009 Mindspark Interactive Network, Inc. All rights reserved.