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END USER LICENSE
AGREEMENT ("EULA" OR "AGREEMENT")
IMPORTANT - PLEASE READ CAREFULLY THIS
EULA, INCLUDING THE EXACT ADVERTISING PRIVACY POLICY, THE FREQUENTLY ASKED
QUESTIONS LOCATED AT www.exactadvertising.com/all/faq.html,
AND THE OFFICIAL RULES FOR ANY CONTESTS OR SWEEPSTAKES PROVIDED BY EXACT
ADVERTISING, WHICH ARE ALL PART OF THIS EULA AND ARE INCORPORATED HEREIN BY
REFERENCE. THIS EULA CONTAINS IMPORTANT INFORMATION THAT YOU SHOULD KNOW
BEFORE ACCEPTING OR DOWNLOADING THE EXACT ADVERTISING SOFTWARE. YOU MUST BE AT LEAST 18 YEARS OF AGE IN
ORDER TO AGREE TO THE TERMS OF THIS AGREEMENT.
The eXact
Advertising Software, consisting of the FunCade
Software (Mah Jongg, Mr.
Munch and Alu's Revenge), Bullseye
and NaviSearch 404 ("NaviSearch").
(Mah Jongg, Mr. Munch, Alu's Revenge, Bullseye and NaviSearch are collectively referred to herein as the
"Software") is offered to you by eXact
Advertising LLC and/or its affiliates ("EXACT", "we"
"us" or "our"). Mah Jongg, Mr. Munch and Alu's
Revenge are online arcade games. Bullseye delivers
relevant contextual information to you in the form of advertisements,
promotions and other content based on the URLs and/or search terms you enter
when navigating the Internet. These advertisements, promotional messages and
other notifications or information may be displayed on your computer screen
at any time while you are online (and not necessarily while you are using any
product with which you downloaded the Software) and may be in the form of
pop-ups, pop-unders or sliders. EXACT may display
these advertisements in a separate independent window controlled by EXACT on
behalf of its advertising clients and not on the Web site that you may be
viewing when the advertisement appears. EXACT's
advertising clients may be competitors of the publishers whose
Web site you may be viewing or may have recently viewed. Advertisements
delivered by EXACT on behalf of its clients are distinguishable from other
advertisements because all such advertisements contain one of the following
trademarks "Bullseye" Network Offer"
or "3rd Party Offer by eXact Advertising"
in the title bar of the advertisement. To see representative full-size
examples of each type of advertisement that may be displayed along with the
frequency with which each type of advertisement may be displayed, go to http://www.bullseye-network.com/aboutbb.html,
which is incorporated herein by reference and is part of this Agreement. And,
NaviSearch delivers relevant search results to you
in cases where you mistype a URL address. When you download NaviSearch, it may become your default 404 Error and
Natural Search Language handler. If you install another default 404 Error and
Natural Search Language handler after you install NaviSearch,
NaviSearch may periodically prompt you to see if
you would like NaviSearch to be your default 404
Error and Natural Search Language handler. The Software does not collect
personally identifiable information from you and does not record your
browser’s behavior.
BY
DOWNLOADING AND INSTALLING THE SOFTWARE, YOU AGREE TO BE LEGALLY BOUND BY
THESE TERMS AND CONDITIONS. THESE TERMS AND CONDITIONS CONTAIN IMPORTANT
INFORMATION YOU SHOULD KNOW BEFORE ACCEPTING THE SOFTWARE. If you wish to
uninstall one or more programs of the Software, you can do so through the
add/remove function in your control panel. If you wish to uninstall Mah Jongg, Mr. Munch and Alu's Revenge, you should access your control panel by
going to (a) START (the button on the bottom of your computer); (b) Choose
SETTINGS; (c) Choose CONTROL PANEL; (d) Choose ADD/REMOVE PROGRAMS; (e)
Select FunCade; and (f) Click on ADD/REMOVE. If you
wish to uninstall Bullseye, you should access your
control panel by going to (a) START (the button on the bottom of your
computer); (b) Choose SETTINGS; (c) Choose CONTROL PANEL; (d) Choose
ADD/REMOVE PROGRAMS; (e) Select BULLSEYE NETWORK; and (f) Click on
ADD/REMOVE. If you wish to uninstall NaviSearch,
you should access your control panel by going to (a) START (the button on the
bottom of your computer); (b) Choose SETTINGS; (c) Choose CONTROL PANEL; (d)
Choose ADD/REMOVE PROGRAMS; (e) Select NAVISEARCH; and (f) Click on
ADD/REMOVE. While you may choose to uninstall the Software from your computer
at any time by following these instructions, some third party applications
may attempt to delete, disable or modify the Software with or without notice
to you. You agree that you will only uninstall the Software from your
computer by following the above instructions and you will not initiate,
permit, authorize or assist any third party or application to remove the
Software from your computer, or disrupt its operation or the operation of any
other user.
1.
Owner of Computer; All Users Bound
You represent and warrant that you are at least 18 years of age, you are the
owner of the computer and that you have authorized the download and
installation of the Software or that the owner of the computer has authorized
you to do so. You agree, with respect to all users of the computer that you
have caused the Software to reside, to provide a copy of these terms and
conditions and to obtain their consent to these terms and conditions before
allowing them to use the Software. Alternatively, if you have the legal right
to accept this Agreement on behalf of one or more users of the computer, that
you have caused the Software to reside, then you hereby accept this Agreement
on behalf of all such other users. You understand that the presence of the
Software on any computer is voluntary and that you may remove it at any time.
2.
License Grant
Subject to the terms and conditions of this Agreement, EXACT grants to you a
non-exclusive, non-transferable, revocable, limited license, to install and
use the most recent version of the Software in object code format solely for
personal, non-commercial purposes. Without limitation, you may not (a) modify
or create any derivative works of the Software or any accompanying
documentation; (b) decompile, disassemble, reverse engineer or otherwise
attempt to derive the source code of the Software, or (c) redistribute,
sublicense or otherwise transfer rights to the Software. EXACT may, from time
to time, either automatically or through other means, distribute an update,
upgrade or other modification to the Software. You understand that we, in our
sole discretion, may modify the Software at any time or suspend or terminate
any license hereunder. You agree that you will not use, or encourage others
to use, any unauthorized means for the removal of Software from a computer.
3.
Ownership
You acknowledge that the Software is the property of EXACT or its licensors,
and is protected by U.S.
and international copyright, trademarks, patents and other proprietary rights
and laws relating to "Intellectual Property Rights".
"Intellectual Property Rights" means, collectively, rights under
patent, trademark, copyright and trade secret laws, and any other
intellectual property or proprietary rights recognized in any country or
jurisdiction worldwide, including without limitation, moral or similar
rights. All rights not expressly granted hereunder are expressly reserved to
EXACT and EXACT's licensors. EXACT ADVERTISING,
BULLSEYE, FUNCADE and NAVISEARCH are trademarks of EXACT.
4.
Content and Infringement
You understand that all third party content, including, without limitation
all data, links, articles, search results, graphic or video messages and all
information, text, software, music, sound, graphics or other materials made
available or accessible through the Software or on our Web sites
("Content"), whether publicly available or privately transmitted,
is the sole responsibility of the entity from whom it originated. EXACT does
not endorse or control such Content. You understand and agree that by using
the Software, you may be exposed to Content that may be offensive, indecent
or objectionable in your community. You agree to accept all risks associated
with the use of any Content, including any reliance on the accuracy or
completeness of such Content. Under no circumstances will EXACT or its
licensors be liable in any way for any Content, including, but not limited
to, for any errors or omissions in any Content, or for loss or damage of any
kind incurred as a result of the use of any Content posted or transmitted via
the Software. By accepting this Agreement, you indicate that you understand,
acknowledge and agree that by using the Service, you may be subject to
various risks, including the exposure of data you have downloaded or have
offered to share, and that you accept all such risk as solely your risk and
responsibility. In addition, all Content made available or accessed through
the use of the Software is the property of the applicable Content owner and
may be protected by applicable laws, including without limitation, those
relating to Intellectual Property Rights. Finally, any suggestions, ideas or
innovations that you voluntarily and optionally disclose to us through any
means may be used or not used, at EXACT's sole
discretion, and EXACT will have no obligation to pay to you for any such
suggestions, ideas and inventions.
5.
Your Obligations
The services described herein are subject to, and you agree that you shall at
all times comply with, all applicable laws. You agree not to use the Software
or any other software or services provided by EXACT to conduct any business
or activity or solicit the performance of any activity, which is prohibited by
law, or any contractual provision by which you are bound.
6.
Privacy.
You consent to the use and collection of your information in accordance with eXact's privacy policy located at http://www.exactadvertising.com/privacypolicy.html.
This Privacy Policy is part of this Agreement and you agree that use of data
as described in the privacy policy is not an actionable breach of your
privacy or publicity rights.
7.
DISCLAIMER OF WARRANTY
YOUR ACCESS AND USE OF THE SOFTWARE AND ANY CONTENT IS AT YOUR SOLE RISK. WE
PROVIDE THE SOFTWARE AND THE CONTENT ON AN "AS IS," AND "AS
AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS, IMPLIED
OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, CUSTOM, TRADE,
QUIET ENJOYMENT, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION OR
NON-INFRINGEMENT. WE MAKE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE
SERVICES PROVIDED BY THIRD PARTIES ACCESSIBLE ON OR THROUGH THE SOFTWARE OR
THE CONTENT OR OTHER EXACT PRODUCTS OR SERVICES. NEITHER WE NOR OUR
DIRECTORS, MEMBERS, OFFICERS, EMPLOYEES, PARENTS, SUBSIDIARIES, AFFILIATES,
AGENTS, CONTRACTORS, THIRD PARTY VENDORS, FACILITIES, INFORMATION PROVIDERS,
LICENSORS, NOR ANY EXCHANGES, CLEARING ORGANIZATIONS OR OTHER SUPPLIERS
PROVIDING DATA, INFORMATION, OR SERVICES (EACH A "PROVIDER") MAKE
ANY REPRESENTATION OR WARRANTY: (A) AS TO THE TIMELINESS, SEQUENCE, ACCURACY,
COMPLETENESS, RELIABILITY OF THE CONTENT OR THE SERVICE OR ANY INFORMATION,
SERVICE OR TRANSACTION PROVIDED THEREBY, OR (B) THAT THE SOFTWARE WILL BE
AVAILABLE OR WILL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER, OR (C)
THAT ERRORS OR DEFECTS RELATED TO THE SOFTWARE WILL BE CORRECTED. WE ALSO DO
NOT WARRANT THAT THE SOFTWARE OR THE INFORMATION AVAILABLE THROUGH THE
SOFTWARE OR THE CONTENT IS APPROPRIATE, ACCURATE OR AVAILABLE FOR USE IN ANY
PARTICULAR JURISDICTION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL
PART OF THIS AGREEMENT. The above exclusions may not apply in jurisdictions
that do not allow the exclusion of certain implied warranties.
8.
Termination
We may terminate this Agreement or cease offering the Software, at any time
and for any reason in our sole discretion. You may terminate this Agreement
at anytime by uninstalling the Software from your computer and destroying any
other copies of the Software that may have been made. However, if you
uninstall some programs of the Software but not others, this Agreement will
still govern your use of the programs of the Software that remain installed
on your computer.
9.
Limitation of Liability
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL EXACT, ITS PARENT,
SUBSIDIARIES, OR AFFILIATES OR THEIR EMPLOYEES, DISTRIBUTORS, LICENSORS,
SUPPLIERS, PARTNERS, ADVERTISERS, DIRECTORS, MEMBERS OR AGENTS (EACH A
"PROTECTED PARTY”, COLLECTIVELY "PROTECTED PARTIES") BE
LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL
OR EXEMPLARY DAMAGES OR OTHER RELIEF ARISING OUT OF, OR RELATED TO, THIS
AGREEMENT OR TO YOUR USE OR INABILITY TO USE ANY OR ALL OF THE SERVICE
INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST
OPPORTUNITY, GOODWILL, OR OTHER INTANGIBLE LOSSES (EVEN IF EXACT HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL PROTECTED
PARTIES' MAXIMUM CUMULATIVE LIABILITY UNDER THIS AGREEMENT EXCEED THE LESSER
OF FIFTY DOLLARS ($50) OR THE REVENUE EXACT ACTUALLY RECEIVED DIRECTLY
ATTRIBUTABLE TO THE SOFTWARE ON YOUR COMPUTER. BECAUSE SOME STATES OR
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR
LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED
BY LAW.
10.
Applicable Law
This Agreement 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
laws, and you hereby consent to the personal and exclusive jurisdiction of the
state and federal courts located in New
York, New York. You
agree that any and all disputes, controversies and claims relating in any way
to the Software, this Agreement or the breach thereof (including the
arbitration of any claim or dispute and the enforceability of this paragraph)
shall be submitted to and resolved by means of a confidential arbitration administered by the
American Arbitration Association under its then current Commercial
Arbitration Rules and conducted in New York, New York. The arbitrator's award
shall be binding and may be entered as a judgment in any court of competent
jurisdiction. You and EXACT may litigate in any court of competent
jurisdiction only to stay or compel arbitration under this Agreement or to
confirm, modify, vacate or enter judgment on the award rendered by the
arbitrators and to enforce the judgment that is entered. To the fullest
extent permitted by applicable law, no arbitration under this Agreement shall
be joined to an action involving any other current or former user of the
Software, whether through class arbitration proceedings or otherwise.
However, to the extent you have in any manner violated or threatened to
violate EXACT’s rights in any of its
Intellectual Property Rights, EXACT may seek injunctive or other appropriate
relief in any court of competent jurisdiction and you irrevocably consent to
jurisdiction and venue in such courts. The United Nations Convention
on Contracts for the International Sale of Goods does not apply to this
Agreement. You agree that regardless of any statute or law to the contrary,
any claim or cause of action arising out of or related to use of the Service
or the EXACT Privacy Policy must be filed within one (1) year after such
claim or cause of action arose or be forever barred.
11.
Export Controls.
The Software may not be downloaded or otherwise exported (or reexported): (a) into (or to a national or resident of)
Cuba, Iraq, Libya, Yugoslavia, North Korea, Iran, Sudan, Syria or any other
country to which the United States has embargoed goods or (b) to anyone on
the U.S. Treasury's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Deny Orders. By downloading and installing the
Software, you are agreeing to the foregoing and you represent and warrant
that you are not located in, under the control of, or are a national or
resident or any such country or on any such list, and that you will otherwise
comply with applicable export control laws.
12.
Successor Agreements
The terms of this Agreement may change from time to time. You should check
back at our Web Site located at http://www.exactadvertising.com
to determine if any material changes have been made. We will prominently post
material changes on the Web Site and will also attempt to provide you with an
on-line notice informing you when such material changes have been made to
this Agreement, which notice shall contain an active link that you can use to
view a web page containing or linking to the revised Agreement. You agree
that your continued use of the Software after the effective date of any
change will constitute your affirmative consent to this revised Agreement. If
you do not accept such revisions, do not access or use the Software.
13.
General
This Agreement, as modified from time to time as described above, and
including the EXACT Privacy Policy, FAQ's and any other policies incorporated
by reference, sets forth the entire understanding and agreement between the
parties. Without limiting any other remedy available to us, we may suspend or
terminate this Agreement and your access and use of the Software if we have
reason to believe that you have failed to comply with your obligations under
this Agreement. Upon termination, cancellation, suspension or expiration of
this Agreement for any reason and by either party, you agree to cease all use
of the Software. No delay or failure to enforce any provision of this
Agreement will constitute a waiver of such provision by EXACT or acts as estoppel against later enforcement. This Agreement
constitutes the entire agreement between you and EXACT with respect to the
specific subject matter addressed herein, and governs your use of the
Software, superseding any prior agreements between you and EXACT or its affiliates
or related entities relating to such subject matter, but this Agreement may
be supplemented by any other agreement you enter into with EXACT or its
affiliates or related entities pursuant to a registration to access
additional software or services provided by EXACT. You may not assign any of
your rights or delegate any of your obligations under this Agreement without
the prior written consent of EXACT. Any purported assignment without such
consent will be null and void. EXACT shall not be deemed to be in breach of
this Agreement due to any delay or failure of performance or interruption in
the availability of the Software resulting directly or indirectly from any
act of nature or other cause beyond the reasonable control of EXACT. If any
provision of this Agreement is found by a court of competent jurisdiction to
be invalid, the parties nevertheless agree that the court should endeavor to
give effect to the parties' intentions as reflected in the provision, and
that the other provisions of this Agreement remain in full force and effect.
All provisions of this Agreement that are intended to survive expiration,
cancellation or termination of this Agreement shall so survive. The section
headings used in this Agreement are for convenience only and have no legal or
contractual effect.
Last Updated February 27, 2006
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