Last Updated August 19. 2011

Welcome to Zwinky.com, operated by Mindspark Interactive Network, Inc. ("we" or "us" or "Mindspark"). When using the services offered on or through www.Zwinky.com (together with any successor site(s), the "Site"), you agree to the following terms and conditions (the "Terms of Service"). We reserve the right, at our discretion, to change, modify, add or remove portions of these Terms of Service at any time. You can always check out the most current version of these Terms of Service at this page. You can determine when these Terms of Service was last revised by referring to the "Last Updated" legend at the top of these Terms of Service. In addition, when using particular services on or through the Site, you shall be subject to any posted guidelines applicable to such services, including any terms or conditions applicable to services provided in conjunction with any of our content and service partners. All such rules and guidelines are hereby incorporated by reference into these Terms of Service. If you do not understand or agree with these Terms of Service please do not use the Site or the Services (as defined below) and do not register to be a member of the Site. If you have any questions or concerns regarding these Terms of Service, please let us know by emailing us at tos@help.zwinky.com. Do not use the Services until these questions and concerns have been answered to your satisfaction, and you agree to abide by the terms and conditions of these Terms of Service.

We reserve the right, at any time and from time to time, temporarily or permanently, in whole or in part, to: (a) modify or discontinue the Services, including, but not limited to (i) restricting the time the Services are available, (ii) restricting the amount of use of the Services permitted, and (iii) restricting or terminating any user's right to use the Services, with or without notice; (b) charge fees in connection with the use of the Services; (c) modify and/or waive any fees charged in connection with the Services; and/or (d) offer opportunities to some or all users of the 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 Services, in whole or in part, or of any service, content or feature offered through the Services. Your continued use of the Services following the posting of changes to these terms will mean you accept those changes.

Overview

The Site offers a multi-purpose service which, in combination with the MyWebSearch Toolbar, allows you to, among other things, create and modify Avatars (as defined below) and other graphics; access online chat forums, link with your profiles on certain social networking sites, create a Zwinky Profile Page, search for and interact with other Zwinky users; post ZNotes on Zwinky Profile Pages; navigate the Site environment, play games, virtually acquire virtual items in the Site environment; and accrue, purchase and spend standalone ZBucks (as defined below), or ZBuck credits for your ZCard (as defined below) (together with the Site, collectively, the "Services"). These Terms of Service apply to the Services; outside of the Services, use of the MyWebSearch Toolbar itself is governed by an End User License Agreement and Privacy Policy available here. All content and services made available through the Site that were not made available as of the "Last Updated" date above, shall automatically be deemed to be part of the Services when first made available through the Site.

Eligibility

You must be an individual of 13 years of age or older to register or use the Services. If you are not yet 13 years old, do not use the Services. Use of the Services is void where prohibited. By using the Services, you represent and warrant that 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 you agree to be legally bound by these Terms of Service, just as if you had signed this agreement.

If you are at least 13 but not yet 18 years of age: Please have your parents or legal guardian review these Terms of Service with you, discuss any questions you might have, and give you their permission to register and use the Services with both your and their full understanding of these Terms of Service. By using the Services, you are telling us that you and your parent or guardian have joined in this agreement.

If you are a parent or guardian: Parents and guardians are advised to exercise supervision over their children's on-line activities. If you do not agree to these Terms of Service, do not let your child use the Services. If you have any further questions about our Services please take a look at our Frequently Asked Questions page or contact us at parentconcern@help.zwinky.com. If you are the parent or guardian of a child under 13 and believe that he or she is using the Services, please contact us at parentconcern@help.zwinky.com.

Restrictions on Use of Materials

You acknowledge that the Services may 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 here after developed. The entire Content, taken together, is protected under U.S. copyright laws as a collective work, and we own a copyright in the selection, coordination, arrangement and enhancement of such Content. Subject to your compliance with this Agreement, and solely for so long as you are permitted by us to access and use the Services, 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, and are in compliance with these Terms of Service. 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 the Site, 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 us. We do not transfer title to the Software to you. Except as otherwise expressly authorized in writing in advance by us, you agree not to reproduce, redistribute, sell, modify, rent, lease, loan, adapt, translate, create derivative works based (whether in whole or in part) on, decompile, reverse engineer, disassemble, or otherwise reduce all or any part of the Services, including the Avatars, the Avatar accessories and other Content; the Software; or any part of the virtual environment on the Services.

The Zwinky.com name and logo are the exclusive property of Mindspark Interactive Network, Inc. Certain other trademarks appearing on the Services are the property of their respective owners. Our partners may also have additional proprietary rights in the content which they make available through the 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 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.

Information Submitted Through the Services

Your submission of information through the Services is governed by our Privacy Policy located at http://info.zwinky.com/zwinkyinfo/privacy.html (the "Privacy Policy"). These Terms of Service incorporate by reference the terms and conditions of the Privacy Policy. You represent and warrant that any information you provide in connection with your use of the Services, including, but not limited to, information you provide on the Site's registration form (such information being the "Registration Data"), is and shall remain true, accurate, and complete, and that you will maintain and update such information regularly. You agree that if any information you provide is false, inaccurate, obsolete or incomplete, or we have reasonable grounds to suspect that the information you provide is false, inaccurate, obsolete or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).

Zwinky Avatars

A Zwinky avatar (the "Avatar") is a visual representation that you create using our Services in order to portray yourself to others. Through the Services you may create or modify your Avatar. Your interactions with other Zwinkies through the Services will be through your Avatar. Your use of your Avatar and interaction with other users of the Services will be governed by these Terms of Service and any other guidelines or rules posted on the Services. You agree that you will not gain any right, title or interest whatsoever in any objects or Avatars you use, create or modify through the Services or the MyWebSearch Toolbar, and that copyright ownership shall remain with us. If, by operation of law or otherwise, you accrue any right, title or interest (including, without limitation, trademark, copyright, right of publicity or patent rights) in or to any Avatar, or any other portion of the Services, you hereby assign, transfer and convey, and agree to assign, transfer and convey, all such right, title and interest to us. To the extent that, by operation of law or otherwise, any of such rights, title or interest cannot be assigned, you (a) agree to waive enforcement worldwide of any "artist's rights" or "moral rights" that cannot be assigned; and (b) you grant us the exclusive, worldwide, irrevocable, perpetual license to use, reproduce, distribute, create derivative works of, publicly perform and publicly display any item encompassing such unassignable rights, in any medium or format, whether now known or later developed. You (or your parent or guardian) agree to execute, at our request and expense, all documents and other instruments necessary or desirable to confirm our rights as set forth in these Terms of Service. You acknowledge and agree that the sale of Avatars, Avatar accessories or other virtual items via online auction sites or other channels outside the Services is strictly prohibited. Subject to these Terms of Service, you are hereby granted a personal, nonexclusive, nontransferable, limited license to view, email, distribute, reproduce, print, cache and store the Avatars and Avatar accessories. We reserve the right to revoke such license at any time for any or no reason.

ZBucks, ZCard and Virtual Items in the Site Environment

Through your use of the Services, your Avatar may accrue virtual "ZBucks" that may be used and virtually spent in the Site environment. ZBucks are a limited license right distributed at Mindspark's discretion, may only be used with respect to virtual items made available in the Site environment, and are not redeemable for monetary value. Standalone ZBucks may give you the right to use "standard" virtual items offered through the Site environment.

In addition to the ZBucks that you may virtually accrue, you may also purchase ZBuck credits to add to your "ZCard". ZCards can be used for both "standard" and "premium" virtual items available through the Site environment. To purchase ZBucks for your ZCard, payments must be made through PayPal. In addition to these Terms of Service, transactions with PayPal are subject to that company's terms & conditions which may be found at www.paypal.com. Please note: we may limit the number of ZBuck credits, or the total monetary value of ZBuck credits, that you may purchase at one time, or over a given period of time, in our sole discretion. Newly purchased ZBuck credits may not be available for immediate use.

You must always get permission from the credit card holder or bill payer before buying ZBuck credits for your ZCard. If you are not yet 18 years of age, you must ask your parents before buying any ZBuck credits for your ZCard and your parents must assist you with any transaction with PayPal. If you make any unauthorized purchases of ZBuck credits, or if any of your purchases of ZBuck credits leads to charge-reversals, chargebacks, disputed charges, dispute fees, or any allegation of payment fraud, we may terminate your account, with or without notice, in our sole and absolute discretion.

All purchases of ZBuck credits for your ZCard are FINAL and non-refundable, except in our sole and absolute discretion. Once you purchase ZBuck credits, you cannot return them, and if your account is cancelled or terminated by you or by us, for any reason, you will lose and forfeit any outstanding ZBuck credits on your ZCard.

The virtual items that you may virtually acquire (through ZBucks, the ZCard or otherwise) or use in the Site environment are a limited license right granted by Mindspark and you do not acquire any ownership right to any such virtual items. Mindspark may terminate such license right and withdraw or discontinue any virtual item in the Site environment or may remove your right to use any particular virtual item or service. Virtual items will be available for use as soon as reasonably practicable. We reserve the right to revise or modify products, product information, or the number of ZBucks or ZBuck credits required to virtually acquire any product without notice or liability. We may also limit a "standard" or "premium" virtual product's availability, without notice or liability, in our sole discretion. Any exchanges of ZBucks or ZBuck credits for virtual items are non-reversible.

Aside from the limited license to use virtual items as described above, you agree that you will not gain any right, title or interest whatsoever in the ZBucks, ZBuck credits, or virtual item(s), and that you may not trade, sell, transfer or transact ZBucks, ZBuck credits, or virtual item(s) in any manner except as permitted in the Site environment. You may not sell or trade the time taken to accrue ZBucks. Any transaction in ZBucks, ZBuck credits, or virtual item(s) via online auction sites or other channels outside the Services is strictly prohibited. You may not use cheat programs, including non Zwinky software programs, to accrue ZBucks or virtually acquire ZBuck credits. We may immediately terminate your account if it comes to our attention that you have accrued, virtually acquired or used ZBucks or ZBuck credits in any non-permitted manner.

Registration

In order to use most of the Services, you must become a registered user of the Services. To register and create an account with the Services, you must first download the MyWebSearch Toolbar. (To see the End User License Agreement for the MyWebSearch Toolbar go to http://info.zwinky.com/zwinkyinfo/eula.html.) You agree that Zwinky user names are the property of Mindspark Interactive Network, Inc., 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, a Zwinky 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.

You are responsible for maintaining the confidentiality of any password you may use to access the Services, and agree not to transfer your user name or password, or lend or otherwise transfer your use of or access to the 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 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.

Profile Page

When you register for an account with the Services, a Profile Page will automatically be created for you and certain Registration Data from your registration form will automatically be pre-populated in your Profile Page, including user name, the date you registered as a Zwinky, gender, age, location and last log on date. For users who are known to be under 18, gender, age and location will not be filled in by default. You may choose to add information (such as interests, favorite weblinks, quotes and keyword tags) to or delete information from your Profile Page, but your user name, the date you registered as a Zwinky and your last log on date are required information for your Profile Page. We may also ask you a series of questions, many of which are optional, regarding your interests that will allow other users to search for people with common interests. Please note that your Profile Page (including any ZNotes that may have been left for you) may be viewed by the public (both registered and unregistered users), so you should not include any information in your Profile Page that you do not want others to see. Users who are known to be under 18 will not be permitted to display gender, age, location, or tags on their Profile Pages.

Searching for other Zwinkies

A registered user of the Services may find other Zwinkies with common interests, by searching other Zwinkies by certain categories, including, but not limited to, interests, favorite links, tags, gender, age, username, email address, and location. Users who are known to be under 18 will not be searchable by age, gender, location, or tags.

Interactive Forums

The Services provide users an opportunity to post and/or exchange information, ideas, and opinions in chatrooms and message boards and via ZNotes(collectively, "Interactive Forums"). ZNotes will be posted on a user's Profile Page and may be viewed by the public. A user may remove a ZNote from his or her Profile Page at any time. If you enter a chat forum, your user name and Avatar will be visible to other registered users in the same chat forum, and you will have the ability to post information in a chat forum. Once you have posted information in a chat forum, you will not be able to edit or delete such information.

When you communicate with other Zwinkies in Interactive Forums, you are subject to these Terms of Service (see "Community Standards and Conduct" below) and any rules or guidelines posted on the Services. Please note that Interactive Forums are a public space and you should refrain from posting anything that is private or would compromise your safety; the Services should not be used to arrange in-person meetings with other Zwinkies. We also encourage parents to monitor and participate in their children's activities on the Internet.

You acknowledge and agree that we reserve the right (but have no obligation) to:

i. use word filters to automatically remove inappropriate language from the Interactive Forums;

ii. alter, remove, or refuse to post or allow to be posted or stored any communications in the Interactive Forums;

iii. monitor from time to time the chat forums;

iv. monitor through automatic means, the Znote postings;

v. store transcripts of chat forums in the event a user has reported an occurrence of abusive conduct (see the Privacy Policy located at http://info.zwinky.com/zwinkyinfo/privacy.html); and

vi. contact any third party who may have an interest in preserving the safety of users (such as law enforcement) regarding the content of any posting and supplying identifying information regarding the author to such third party, along with the circumstances surrounding the transmission thereof.

The Fashion Design Studio Virtual Goods Design Policy

By checking the “I have read and agree to the Virtual Goods Design Policy and the Zwinky Terms of Service” box before you enter FDS, you acknowledge and agree to be bound by the Fashion Design Studio Virtual Goods Design Policy, part of the Zwinky Terms of Service.

Please note:

  1. Any item created in violation of this policy will be deleted from the designer's Wardrobe and/or the Wardrobe of any Zwinky it was gifted to.
  2. Any ZCard and/or ZBucks spent on the creation of this item will NOT be refunded to the designer's account.
  3. Multiple violations may result in the permanent termination of the designer's Zwinky account

FDS designs are deemed inappropriate and in violation of this policy if they are found to contain ANY of the following content:

  • Content that infringes any third party's intellectual property rights (e.g., copyright, trademark [including logos], privacy rights, etc.);
  • Content that contains profanity;
  • Content that contains drugs, drug paraphenalia, or illegal substances
  • Content that contains nudity, sexually explicit content or pornography;
  • Content that contains hateful, defamatory, or discriminatory content or incites hatred against any individual or group;
  • Content that contains personal information (e.g. email, phone number, address, etc.);
  • Content that exploits minors;
  • Content that depicts unlawful acts or extreme violence;
  • Content that depicts animal cruelty or extreme violence towards animals;
  • Content that offers or promotes the sale of real or virtual currency;
  • Content that promotes fraudulent schemes, multi level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or
  • Content that violates any law.

Designs that violate this policy will be flagged and reported to The Zwinky Team. Flagged designs will be reviewed by The Zwinky Team. If a design is found by the Zwinky Team in its sole discretion to be in violation of this policy, the item will be removed from the wearer’s Wardrobe. The designer and any Zwinky who may have been gifted the design will be notified of the removal. The designer will NOT receive a refund for the cost of the item.

To learn more about reporting inappropriate FDS designs, please visit this link: http://support.zwinky.com/ics/support/KBAnswer.asp?questionID=630

By uploading materials or otherwise submitting any materials to the Website or to us (collectively, the "Materials"), you automatically grant (or warrant that the owner of such Materials has expressly granted) us a perpetual, royalty-free, irrevocable, non-exclusive, worldwide right and license to use, reproduce, modify, adapt, publish, translate, 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, and to sublicense the foregoing rights, through multiple tiers, to the maximum extent permitted by applicable law. In addition, you warrant that all so-called "moral rights" in those materials have been waived.

Notwithstanding the foregoing, to the extent that any Materials contain creative suggestions, recommendations, designs, including within the Fashion Design Studio, ideas, notes, drawings, or other information (collectively, the "Submissions"), the Submissions shall be deemed, and shall remain, our property. None of the Submissions shall be subject to any obligation of confidence on our part, and we shall not be liable for any use or disclosure of any Submissions. Without limitation of the foregoing, we shall exclusively own, and you assign to us, all right, title and interest in and to the Submissions of every kind and nature throughout the universe and we shall be entitled to unrestricted use of the Submissions for any purpose whatsoever, commercial or otherwise, without compensation to the provider of the Submissions.

Information in our Interactive Forums may be provided both by our staff and by third party users of the Services. Please note that other users of the Services may post messages or make statements in the Interactive Forums that are inaccurate, misleading, deceptive or offensive. We neither endorse nor are responsible for any opinion, advice, information or statements made in the Interactive Forums by third parties. Without limitation, we are not responsible for any information or materials made available through the Interactive Forums (including without limitation errors or omissions in Interactive Forum postings or links or images embedded in Interactive Forum messages) or results obtained by using any such information or materials. Under no circumstances will we, or our employees, officers, directors, shareholders, agents, representatives or affiliates, be liable for any loss or damage caused by your reliance on such information or materials. The opinions expressed in the Interactive Forums reflect solely the opinions of the individuals who submitted such opinions, and may not reflect our opinions. In addition, we have no control over, and shall have no liability for, any damages resulting from, the use (including without limitation republication) or misuse by any third party of information voluntarily made public through any Interactive Forum or any other part of the Services. IF YOU CHOOSE TO MAKE ANY OF YOUR PERSONALLY IDENTIFIABLE OR OTHER INFORMATION PUBLICLY AVAILABLE IN AN INTERACTIVE FORUM, YOU DO SO AT YOUR OWN RISK. Your privilege to use the Services, including the Interactive Forum features, depends on your compliance with the "Community Standards and Conduct" guidelines set forth in these Terms of Service. We may revoke your registration privileges and/or take any other appropriate measures to enforce these guidelines if violations are brought to our attention. Further, we may, in our sole discretion, terminate your membership or participation in any community, chat room or other feature of the Services for any reason.

Community Standards and Conduct

You acknowledge that all Materials, whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Materials originated. This means that you are entirely responsible for all Materials that you post, email or otherwise transmit via the Services. We do not control all of the Materials posted via the Services and, as such, do not guarantee the accuracy, integrity or quality of such Materials. You understand that by using the Services, you may be exposed to Materials that are offensive, indecent or objectionable. Under no circumstances will we be liable in any way for any Materials, including, but not limited to, for any errors or omissions in any Materials, or for any loss or damage of any kind incurred as a result of the use of any Materials posted, emailed or otherwise transmitted via the Services.

You agree not to:

  • Post, transmit, or otherwise make available, through or in connection with the Services:
    • Anything that is or may be (a) threatening, harassing, degrading, abusive, hateful or intimidating; (b) defamatory; libelous or invasive of another's privacy; (c) fraudulent or tortious; (d) vulgar, obscene, indecent, pornographic or otherwise objectionable; or (e) protected by copyright, trademark, trade secret, right of publicity or other proprietary right without the express prior consent of the owner of such right.
    • Any material that would give rise to criminal or civil liability; that encourages conduct that constitutes a criminal offense; or that encourages or provides instructional information about illegal activities or activities such as "hacking," "cracking," or "phreaking."
    • Any virus, worm, Trojan Horse, easter egg, time bomb, spyware, or other computer code, file, or program that is harmful or invasive or that may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software or equipment.
    • Any unsolicited or unauthorized advertising, promotional material, "junk mail," "spam," "chain letter," "pyramid scheme" or investment opportunity, or any other form of solicitation.
    • Any Materials 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).
  • Use the Services to defame, abuse, harass, stalk, threaten or otherwise violate the legal rights of others, including without limitation others' privacy rights or rights of publicity, or harvest or collect personally identifiable information about users of the Services.
  • Use the Services to arrange in-person meetings with other Zwinkies.
  • Harm minors in any way.
  • Impersonate any person or entity, including without limitation any of our officials, forum leaders, guides or hosts; falsely state or otherwise misrepresent your affiliation with any person or entity; or express or imply that we endorse any statement you make.
  • Interfere with or disrupt the operation of the Services or the servers or networks used to make the Services available; or violate any requirements, procedures, policies or regulations of such networks.
  • Restrict or inhibit any other person from using the Services, including without limitation by hacking or defacing any portion of the Services; or disrupt the normal flow of dialogue, cause a screen to "scroll" faster than other users of the Services or an Interactive Forum are able to type, or otherwise act in a manner that negatively affects other users' ability to engage in real time exchanges;
  • Use the Services to distribute or otherwise publish any material containing any solicitation of funds, promotion, advertising, or solicitation for goods or services without our express prior written consent; or use the Services in a commercial manner.
  • Reproduce, duplicate, copy, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of or access to the Services.
  • Remove any copyright, trademark or other proprietary rights notice from the Services or Content or Materials originating from the Services.
  • Frame or mirror any part of the Services or Software without our express prior written consent; or forge headers or otherwise manipulate identifiers in order to disguise the origin of any Materials transmitted through the Services.
  • Create a database by systematically downloading and storing content from the 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;
  • Use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or in any way gather Content or Materials from the Services or reproduce or circumvent the navigational structure or presentation of the Services.

In order to permit us to protect the quality of our products and services, you hereby consent to our employees and representatives being able to access your account and records for any reason, in our sole discretion. Further, you acknowledge that you are responsible for obtaining or providing all access lines, telephone and computer equipment (including modem), or other devices, necessary to access the Services, and paying all charges related thereto.

Reporting Abusive Behavior

You are solely responsible for your interactions with other users of the Services. We reserve the right, but have no obligation, to monitor disputes between you and other users of the Services. However, if another user is abusive to you, we provide you a way to report such abusive conduct by filling out a form on the Report Abuse page at http://feedback.zwinky.com/index_abuse.jsp?key=zwabuse. We reserve the right to terminate the account of any user who has been abusive to another user.

Illegal behavior

You will comply will all applicable laws, regulations, and ordinances as a condition of use of the Services. We will terminate your account upon receiving reliable information involving your violation of any law, and will cooperate with law enforcement agencies on such matters.

Links

The Services may provide, or third parties may provide, links to other World Wide Web sites, social networking sites or resources, including sites where you may be able to purchase real-world versions of virtual goods available in the Site environment. 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, or any specific goods or services, and that we do not endorse and are not responsible or liable for any content, advertising, products, services or other materials (collectively, "Third Party Materials") on or available from such sites or resources. You understand that you may be exposed to Third Party Materials that are offensive, indecent or objectionable. 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 Third Party Materials available on or through any such site or resource. Aside from purchases of ZBucks via PayPal, which are subject to these Terms of Service, any use of or transactions with or through third party sites are governed by the terms & conditions and/or privacy policies of such sites, and we shall not be considered a party to any such use or transactions.

U.S. Export Controls

Any Software downloaded from the Site is further subject to United States export controls. No Software may be downloaded from the Site or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, Sudan or any other country to which the U.S. has embargoed goods; or (ii) 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 Software, 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.

PLEASE NOTE THE FOLLOWING IMPORTANT DISCLAIMERS OF WARRANTIES:

THE SERVICES ARE PROVIDED 'AS IS' AND YOU USE THEM AT YOUR SOLE RISK. WE EXPRESSLY DISCLAIM 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, WE MAKE NO WARRANTY THAT THE SERVICES OR ANY VIRTUAL ITEMS WILL MEET YOUR REQUIREMENTS, OR WILL UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR THAT THE QUALITY OF ANY PRODUCTS (VIRTUAL OR REAL), SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.

WE SPECIFICALLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THIRD PARTY SITES, SERVICES OR MERCHANDISE.

ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE 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 OUR PERSONNEL OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVICED FOR IN THESE TERMS OF SERVICE.

Limitation of Liability

We use diligent efforts to maintain the Services, but we are not responsible for any defects or failures associated with the Services or any damages (such as lost profits or other consequential damages) that may result from any such defects or failures. In addition, we 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 Services, including as to: (i) the accuracy, currency, content, or quality of any such sites and information, or (ii) whether any search using the Services may locate unintended and objectionable content.

YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE 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, LOSS OF SECURITY OF INFORMATION YOU HAVE PROVIDED IN CONNECTION WITH YOUR USE OF THE SITE (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (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 SERVICES; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; (v) ANY MATERIALS OR CONTENT MADE AVAILABLE THROUGH THE SERVICES BY US OR ANY THIRD PARTY; AND/OR (vi) ANY OTHER MATTER RELATING TO THE SERVICES. IN NO EVENT SHALL OUR 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 TO US, IF ANY, FOR ACCESSING THIS SITE, THE SERVICES OR THE SOFTWARE.

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.

Indemnification

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. AND OUR PARENT COMPANIES, 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 SITE AND/OR 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 NOTIFY US IMMEDIATELY OF ANY UNAUTHORIZED USE OF YOUR ACCOUNT OR ANY OTHER BREACH OF SECURITY KNOWN TO YOU.

Termination and Modification

You agree that we, in our sole discretion, may terminate your password, account (or any part thereof) or use of the Services, and remove and discard any Materials within the Services, 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 these Terms of Service. We may also, in our sole discretion and at any time, discontinue providing the Services, or any part thereof, with or without notice. You agree that any termination of your access to the Services under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that we 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 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. In the event that your account is terminated, any outstanding ZBuck credits on your ZCard will be lost and forfeited.

Jurisdictional Issues

The Site is controlled and operated by Mindspark from the United States, and is not intended to subject Mindspark to the laws or jurisdiction of any territory other than that of the United States. Mindspark does not represent or warrant that the Site or any part thereof is appropriate or available for use in any particular jurisdiction. Those who choose to access the Site do so on their own initiative and at their own risk, and are responsible for complying with all local laws, rules and regulations. We may limit the Site's availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.

Governing Law and Other Miscellaneous Terms

These Terms of Service do not, and shall not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and Mindspark. These Terms of Service 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 of Service 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 and you waive any jurisdictional, venue or inconvenient forum objections to such courts. If any provision of these Terms of Service 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. Mindspark may assign these Terms of Service, in whole or in part, at any time with or without notice to you. You may not assign, transfer or sublicense these Terms of Service or any or all of your rights or obligations under these Terms of Service without Mindspark's express prior written consent. No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof. This is the entire agreement between you and Mindspark relating to the subject matter herein and shall not be modified by you except in writing, signed by both parties. These Terms of Service will inure to the benefit of Mindspark's successors, assigns and licensees. Without limitation, you agree that a printed version of these Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

Copyright and Copyright Notices

We respect the intellectual property of others, and we ask our users to do the same. We may, in appropriate circumstances and at our 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 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 our Copyright Agent for Notice of claims of copyright infringement at:

Registered Copyright Agent
Zwinky.com
c/o Mindspark Interactive Network, Inc.
One North Lexington, 9th Floor
White Plains, NY, 10601
Facsimile: (914) 591-0205
copyright@help.zwinky.com

PLEASE NOTE: By submitting a notice of alleged copyright infringement, you are granting Mindspark permission to share your name and contact information with the user who posted the allegedly infringing material

Information or Complaints

Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please send an email to customerservice@help.zwinky.com. You may also contact us by writing to Mindspark Interactive Network, Inc., 1 North Lexington, 9th Floor, White Plains, NY, 10601, Attention: Customer Service, or by calling us at 914-591-2000. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

Filtering

Pursuant to 47 U.S.C. Section 230(d) as amended, we hereby notify you that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. Information identifying current tools and providers of such protections may be found at http://kids.getnetwise.org/tools/, and is also accessible by searching the Internet for "parental control protections", "parental control software", or some similar search query.

© Mindspark Interactive Network, Inc. All rights reserved.