IMPORTANT: BY USING THE SERVICE, YOU AGREE TO RESOLVE DISPUTES WITH THE OPERATOR OF FOODILY THROUGH BINDING ARBITRATION (AND WITH VERY LIMITED EXCEPTIONS, NOT IN COURT), AND YOU WAIVE CERTAIN RIGHTS TO PARTICIPATE IN CLASS ACTIONS, AS DETAILED IN SECTIONS 19 AND 20.
Mindspark Interactive Network, Inc. (“Mindspark,” “we,” “our”) operates the “Service,” which in this document is defined to include all of the following:
• our official Foodily mobile apps for iOS
• the Content, services, activity and transactions that are offered, made available or facilitated through any of the above
These Terms of Service apply to the Service, and they govern your use of the Service and your relationship with us in connection with the Service. You accept and agree to these Terms of Service by doing any one of the following:
• Accessing or using the Service
• Clicking to accept these Terms of Service
• Accepting these Terms of Service through any other method we specify
If you violate these Terms of Service, or if you do not agree to these Terms of Service, your access to and other use of the Service is unauthorized.
These Terms of Service contain many important points, including important warranty disclaimers and limitations on Mindspark’s liability, including as explained in sections 16 and 17; and an explanation of how these Terms of Service will be updated, as detailed in section 2 below:
As used in these Terms of Service:
• The term “Content” includes any recipes, other posts, comments, faves, recommends, lists, information, graphics, photos, links, audio files, videos, software, programs and other material.
• The term “posting” refers to any act of submitting or sending Content to the Service, or creating Content on the Service, such as uploading a photo for your profile page or entering information about a recipe.
2. Changes to the Terms of Service
Mindspark may amend these Terms of Service at any time and at Mindspark’s sole discretion, by posting the updated version on foodily.com (such as via a link to it in the footer). Unless you reject the update as described below, you will be deemed to accept the changes and they will take effect at the earlier of:
• 12:00 p.m. Eastern time on the 10th day after posting to foodily.com (if there is no update to the Disputes/Arbitration section) or on the 30th day (if there is an update to the Disputes/Arbitration section); or
• your acceptance of them via a click-through process or some other method that we specify.
To reject a proposed update, you must, by the deadline on the day specified above, and without accepting the update, take all of the following steps:
1. Using your email address that we have on file for your account, send us an email to firstname.lastname@example.org (sending a blank email is fine), then
2. Click on the verification link in the automated response email we will send you, while connected to the Internet, and then either:
a. Confirm that the page that is displayed contains a statement by us explicitly acknowledging your successful rejection of the update; or
b. If requested by the page that you see, log into your Service account from that page, and follow the steps shown there to verify and submit your rejection of the update.
The content of the email you send to email@example.com will have no effect on any version of the Terms of Service and probably won’t be read. If you don’t receive the verification link from us within four hours, or if you are asked to click on a verification link but the page does not property load, then instead of step 2 above you must cease using the Service and send a letter to Mindspark Interactive Network, Inc., Attn: Legal, 29 Wells Avenue., Suite 300, Yonkers, NY 10701, containing (i) your first name and last name, as they appear in our account records, (ii) your email address, as it appears in our account records, and (iii) a statement that you reject the update to the Terms of Service. This letter must be postmarked by the day of the deadline above, and we may communicate with you via the email address associated with your account to request your confirmation of the rejection, in which case you must then provide that confirmation for it to be effective. Unless we explicitly state otherwise in the proposed update to the Terms of Service, no other rejection method is valid.
If you follow the process above to reject the update, then the update will not take effect between us and you, and your account on the Service will be closed as described in section 8.
If you do not follow the process above to reject the update, then it will apply on a going-forward basis as of the date and time it takes effect.
3. Changes to the Service
We reserve the right to change and improve the features and functionality of the Service at any time and at our sole discretion. This includes adding, modifying or removing specific features and functionality of the Service. Additionally, we reserve the right to suspend or stop the Service altogether. We reserve the right to impose fees for new or existing aspects of the Service and to modify existing fees.
4. Eligibility Restrictions
To use the Service, you must (i) have reached the age of majority in the jurisdiction where you live (in most U.S. states, that’s 18 years old), (ii) have valid consent from your parent or legal guardian to use the Service and be bound by these Terms of Service, or (iii) be an emancipated minor. If you are the parent or legal guardian of a minor that creates an account, you accept these Terms of Service on the minor’s behalf and are jointly responsible with the minor for all use of the Service and compliance with the Terms of Service.
6. IMPORTANT DISCLAIMERS REGARDING FOOD AND COUPONS
The Service contains or links to recipes and food ingredients from around the world, and more are added every day. Foodily is not responsible for any adverse health consequences resulting from the preparation or consumption of foods mentioned on the Service. Terms used on the Service to categorize or describe Content (such as diet, vegetarian, low-fat, low-sodium, gluten-free, mild or low-sugar) may be inaccurate or inappropriate, as may search results based on such terms. You are solely responsible for screening your Foodily search results and other Content for ingredients and preparation techniques that are objectionable or harmful, and you should ask your physician for help. Foodily makes no promise that any food will or will not have any particular effect on health or fitness, or that any food is appropriate for any particular person or category of persons. You agree not to rely on any Content as medical or dietary advice.
Consuming raw or undercooked meats, poultry, seafood, shellfish, eggs, unpasteurized milk and certain other foods may increase your risk of foodborne illness or death. Some food preparation instructions on the Service, if followed, may increase this or other risks, or they may reduce risk, but not to a level that is appropriate for you. Consuming some foods may be harmful no matter how you prepare them. And some preparation techniques and tools themselves are dangerous. You should not expect the Service to note or explain these or any other risks.
As part of our provision of the Service, we may distribute coupons and/or discount codes (“Coupons”). You agree that we are not liable or responsible to you in the event of an error in or invalidity of a Coupon, or if a business refuses to honor the Coupon. We are not responsible or liable to you in the event you are dissatisfied with any third party products or services purchased with the Coupons.
Please see additional important disclaimers and warnings throughout these Terms of Service, including in Section 16.
7. General Requirements and Prohibitions
• Comply with any policies or other requirements we post on the Service.
• Provide us with only accurate information about yourself, and keep it up-to-date.
• Use a unique password that never has or will be used anywhere else.
• Protect the confidentiality of your password. You will be responsible for any and all statements and transactions made, and any other acts or omissions that occur, through your account.
• Access our Service only from devices that have an up-to-date operating system and up-to-date security software.
• Notify us of any suspected unauthorized activity, or any breach of confidentiality of your password.
You agree not to do any of the following:
• Violate any applicable law or legal requirement.
• Engage in fraud or misuse of the Service.
• Engage in conduct that is harmful to us or another user.
• Attempt to access, search or otherwise use the Service (such as by attempting to retrieve information from or about the Service) through the use of any engine, software, tool, agent, device or mechanism (including spiders, scrapers, robots, crawlers, data mining tools or the like) other than (i) generally available third-party web browsers that provide accurate and complete User-Agent information in the HTTP header, such as Safari, Firefox, Chrome and Internet Explorer and (ii) our apps.
• Access our Service using anything that has been created (or modified with plugins or otherwise) in a manner that facilitates automated or faster-than-normal access to, searching of or other use of the Service.
• Disregard our robots.txt files (but in the event of a conflict between these Terms of Service and a robots.txt file, the relevant provisions of the one that is more restrictive of your actions shall apply).
• Submit content that (i) infringes, misappropriates or violates a third party’s copyright, trademark, trade secret, patent, moral rights or other intellectual property rights, rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any legal requirement; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, dishonest, obscene, sexually explicit, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) a third party might consider to be their private or confidential information (such as their credit card number, social security number, or their non-public phone number or email address).
• Misrepresent your relationship with us or with the Service.
• Sell, transfer, license or assign your account, followers, username, or any account rights, or offer to do so, or resell, re-license or sub-license the Service (in whole or in part).
• Stalk, bully, abuse, harass or threaten anybody.
• Display to others, mirror or frame the Service, or any individual element within the Service, except that you may use embedding tools that we may choose to provide specifically to permit the embedding of aspects of our Service, consistent with any additional restrictions we impose for the use of such tools;
• Alter the way that an aspect of the Service is displayed or delivered to other users.
• Access, tamper with, or use non-public areas of the Service, our computer systems, or the technical delivery systems of us or our providers;
• Attempt to access our API without first obtaining our permission and agreeing to our API-specific terms;
• Attempt to probe, scan, or test the vulnerability of the Service or breach any security or authentication measures;
• Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Service.
• Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure intended to protect, limit access to or control the Service;
• Disclose your password or other login credentials to third parties or permit third parties to use them or the Service on your behalf or under your account.
• Permit third parties to observe your logging into the Service or to collect information about the login process.
• Request, receive or use third party’s password or other access credentials.
• Access the Service to determine whether a third party holds any type of account or to learn about or verify information about the account.
• Disclose any of the following confidential information without our prior written consent:
o all Mindspark software, algorithms (including the optimization or manipulation of said algorithms), technology and non-public documentation relating to the Service;
o the existence of, and information about, non-public beta features in the Service; and
o any other information made available by Mindspark that is marked confidential or would normally be considered confidential under the circumstances in which it is presented.
• Access the Service if we have requested that you refrain from such access.
• Send any unsolicited or unauthorized advertising, promotional materials, junk email, spam or other form of solicitation;
• Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Service;
• Collect from the Service or use any information found on the Service about an identified or identifiable individual.
• Impersonate or misrepresent your affiliation with any person or entity.
• Assist or permit any third party to engage in any act or omission that would violate these Terms of Service.
8. User Account Termination or Modification
At any time, regardless of whether your account is being closed, we reserve the right to retire your username or Foodily page name, or assign it to a new user, in each case at any time and without prior notice to you. We may choose to exercise this right if your use of a particular username or Foodily page name is unlawful or violative of a third party’s trademark, or in other situations where we believe it would be appropriate to do so. You do not have any property interest in or any right to use or prevent others from using any specific username or Foodily page name.
We do not claim ownership of any Content that you post on the Service.
For recipes and other Content you post, you give us the following permission: you grant us an irrevocable, non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, distribute and perform it or derivatives of it, with or without attribution, including for advertising-related purposes. You agree that we are forever free to use any ideas, concepts or know-how that you provide to us.
You acknowledge and agree that Mindspark is not responsible for the use or other handling of your Content by third parties.
You represent and warrant that: (a) you own the Content posted by you on or through the Service or otherwise have the right to grant the rights and licenses set forth in these Terms of Service; (b) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; and (c) you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service.
Mindspark reserves the right to take down or delete any Content from the Service for any or no reason, without prior notice.
You agree that the Service is not a backup service, and you will not rely on the Service for the purposes of backup or storage. You agree to make a secure copy of any important Content before posting it to the Service. Mindspark will not be liable to you for any modification, suspension, or discontinuation of the Service, or the loss of any Content. You acknowledge that the Service may be subject to breaches of security, and that the submission and storage of Content may not be secure.
You agree that Mindspark is not responsible for, and does not endorse, Content posted within the Service. Mindspark does not have any obligation to prescreen, monitor, edit, or remove any Content. You bear legal responsibility for your Content and for any violation by your Content of these Terms of Service. Likewise, you agree and acknowledge that Mindspark does not control, is not responsible for, and will not be liable to you based on other users’ Content.
10. Communications Decency Act Notice
Commercially available parental control protections (such as computer hardware, software or filtering services) may assist you in limiting access to material on the Internet that is harmful to minors. Current providers of such protections include McAfee and Symantec, as well as others available from this Bing search. Please note that we did not create these parental control tools, we have not tested or evaluated them and we do not endorse them. Any use of such tools is at your sole risk. You should not assume that these or any other third-party parental control protections will work well or at all in connection with the Service.
11. Account Security
We make no representations or promises regarding security. You are solely responsible for maintaining the confidentiality of your account information, such as your username and password, and for restricting access to your computer and other devices. In addition, you accept full responsibility and liability for all activities that occur under your account or password.
You agree that Mindspark may in its sole discretion place advertising and promotions on the Service, including on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without notice to you.
13. Ownership of the Service and Related Rights
As between you and Mindspark, all rights, title and interest in and to the Service, including, without limitation, patents, copyrights, trademarks, trade names, service marks, trade secrets and other intellectual property rights, and any goodwill associated therewith, are owned by or licensed to Mindspark.
The Foodily and Mindspark names and logos are trademarks of Mindspark, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Mindspark. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of Mindspark, and may not be copied, imitated or used, in whole or in part, without prior written permission from Mindspark.
The Terms of Service do not grant you any right, title or interest in any of the above.
The relationship between you and us is that of independent contractors, and nothing in these Terms of Service shall be construed to create or imply any other relationship such as a partnership or an employer/employee or agency relationship.
14. Reporting Suspected Copyright Infringement
Pursuant to the Digital Millennium Copyright Act (“DMCA”), Mindspark has adopted and implemented a policy that provides for the termination in appropriate circumstances of users who are repeat copyright infringers. If you believe that your copyright or the copyright of a person on whose behalf you are authorized to act has been infringed, please provide Mindspark’s Copyright Agent a written Notice containing the following information:
1. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works.
2. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.
3. Contact information for the notifying party, including your name, address, telephone number, and email address.
4. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
5. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
6. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You must send that written Notice to Mindspark’s Copyright Agent, Annie Cappeller, through one of the following three contact points:
• Mail: 29 Wells Avenue., Suite 300, Yonkers, NY 10701
• Email: firstname.lastname@example.org
• Fax: 914-206-4559
Our Copyright Agent’s telephone number is 914-591-2000 but you cannot use this number to submit a Notice or to otherwise inform us of alleged copyright infringement. To be valid, a Notice must be in writing and must follow the instructions above.
Additional Terms For Our iOS App
You acknowledge that Apple is not responsible for addressing any claims you have or any claims of any third party relating to the app or your possession and use of the app, including, but not limited to (i) product warranty or liability claims; (ii) any claim that the app fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; or (iv) claims that the app infringes a third party’s intellectual property rights.
In the event of any failure of the iOS version of the app to conform to any applicable warranty that has not been effectively disclaimed by these Terms of Service, you may notify Apple, and Apple will refund the purchase price for the app (if any) to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the app, and, as between Apple and Mindspark, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty of Mindspark will be Mindspark’s responsibility, but only to the extent provided by these Terms of Service. Please read the entire Terms of Service, as other sections of these Terms of Service limit Mindspark’s liability in this regard.
Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service. Upon your acceptance of the Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against you as a third party beneficiary thereof.
You agree to indemnify, defend and hold harmless Mindspark and the members of its corporate family, and their agents, partners, employees, contractors and advertisers, at your own expense and immediately after receiving a written notice from us, from and against any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, resulting from any complaint, claim, demand or liability arising out of or related to any of your Content or your acts or omissions in relation to the Service, your breach of these Terms of Service, or your violation of any law or third party rights. The members of Mindspark’s corporate family, and the agents, partners, employees, contractors and advertisers of them and of Mindspark are third-party beneficiaries of this indemnity. Other than them, Apple and Apple’s subsidiaries, there are no other third-party beneficiaries of the Terms of Service.
16. Disclaimer of Representations and Warranties
YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DISCLAIM ALL WARRANTIES AND REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (2) OF INFORMATIONAL CONTENT OR ACCURACY, (3) OF NON-INFRINGEMENT, (4) OF PERFORMANCE, (5) OF TITLE, (6) THAT THE SERVICE WILL OPERATE IN AN ERROR FREE, TIMELY, SECURE, OR UNINTERRUPTED MANNER, IS CURRENT AND UP TO DATE AND ACCURATELY DESCRIBES ANYTHING, OR IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (7) THAT ANY DEFECTS OR ERRORS IN THE SERVICE WILL BE CORRECTED, (8) THAT THE SERVICE IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM, (9) THAT WE WILL ENFORCE THE TERMS OF SERVICE AGAINST OTHERS TO YOUR SATISFACTION OR (10) THAT ANY FOOD WILL OR WILL NOT HAVE ANY EFFECT ON HEALTH OR FITNESS, OR THAT ANY FOOD OR FOOD PREPARATION TECHNIQUE IS OR IS NOT APPROPRIATE FOR ANY PARTICULAR PERSON OR CATEGORY OF PERSONS. EFFORTS BY MINDSPARK TO MODIFY THE SERVICE SHALL NOT BE DEEMED A WAIVER OF THESE LIMITATIONS OR ANY OTHER PROVISION OF THESE TERMS OF SERVICE. Some jurisdictions limit or do not allow the disclaimer of implied warranties, and as a result some or all of this section may not apply to you. In cases where such laws apply, the warranties will be disclaimed only to fullest extent permitted by law.
17. Disclaimer of Liability
IN NO EVENT SHALL MINDSPARK OR ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, REPRESENTATIVES, INTERNAL OPERATING UNITS, AFFILIATES, PARENTS, SUBSIDIARIES, SUBLICENSEES, SUCCESSORS AND ASSIGNS, INDEPENDENT CONTRACTORS, AND RELATED PARTIES (COLLECTIVELY, WITH MINDSPARK, THE “MINDSPARK ENTITIES”) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE OR WITH THE DELAY OR INABILITY TO USE SAME, OR FOR ANY BREACH OF SECURITY, OR FOR ANY INFORMATION, PRODUCTS, AND SERVICES OBTAINED THROUGH OR VIEWED ON THE SERVICE, OR OTHERWISE ARISING OUT OF THE USE OF SAME, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, REGULATION, COMMON LAW PRECEDENT OR OTHERWISE, EVEN IF THE MINDSPARK ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES AND EVEN IF SUCH DAMAGES RESULT FROM ANY MINDSPARK ENTITY’S NEGLIGENCE OR GROSS NEGLIGENCE. ADDITIONAL DISCLAIMERS BY MINDSPARK APPEAR WITHIN THE BODY OF THE SERVICE AND ARE INCORPORATED HEREIN BY REFERENCE. TO THE EXTENT ANY SUCH DISCLAIMERS PLACE GREATER RESTRICTIONS ON YOUR USE OF THE SERVICE OR THE MATERIAL CONTAINED THEREIN, SUCH GREATER RESTRICTIONS SHALL APPLY. Some jurisdictions restrict or do not allow the limitation of liability in contracts, and as a result the contents of this section may not apply to you. In cases where such laws apply, liability of the Mindspark Entities shall be limited to the fullest extent permitted by law.
18. Governing Law
Any and all disputes, claims, and controversies arising out of or relating to these Terms of Service (such as with respect to their validity or enforceability) or the Service (for example, relating to any person’s access to or use of the Service, or the provision of content, products, services, or technology on or through the Service, or the handling of information collected on the Service), shall be governed by and construed exclusively in accordance with the laws and decisions of the State of New York applicable to contracts made, entered into and performed entirely therein, without giving effect to its conflict of laws provisions (except for Sections 5-1401 and 5-1402 of the New York General Obligations Law). The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
Mindspark and you agree that these Terms of Service affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
In the event of a dispute, claim, or controversy arising out of or relating to these Terms of Service (such as with respect to their validity or enforceability) or the Service (for example, relating to any person’s access to or use of the Service, or the provision of content, products, services, or technology on or through the Service, or the handling of information collected on the Service), Mindspark or you must give the other notice of the dispute, claim, or controversy, and the notice must include a brief written statement that sets forth the name, address, and contact information of the party giving it, as well as the facts giving rise to the dispute, claim, or controversy and the relief requested. You must send any such notice to Mindspark by mail to Mindspark Interactive Network, Inc., Attn: Legal, 29 Wells Avenue., Suite 300, Yonkers, NY 10701 AND by email to email@example.com. To the extent that Mindspark has your contact information, it will send any such notice to you by U.S. Mail and your email address. Mindspark and you will attempt to resolve any dispute, claim, or controversy through informal negotiation within thirty (30) days from the date that any notice of dispute, claim, or controversy is sent. Mindspark and you shall use reasonable, good faith, efforts to settle any dispute, claim, or controversy through consultation and good faith negotiations. After 30 days, Mindspark or you may resort to the other alternatives described in this Section. Notwithstanding the foregoing, the notice and 30 day negotiation period required by this paragraph shall not apply, however, to disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Sites.
Except as otherwise specifically set forth below, any dispute, claim, or controversy of any kind between Mindspark and you arising out of or relating to these Terms of Service (such as with respect to their validity or enforceability) or the Service (for example, relating to any person’s access to or use of the Service, or the provision of content, products, services, or technology on or through the Service, or the handling of information collected on the Service), if unresolved through informal discussions within thirty (30) days of the sending of the notice described above, shall be resolved by binding confidential arbitration to be held in the U.S. state in which you reside. For residents outside the United States, arbitration shall be initiated in New York, New York, and Mindspark and you agree to submit to the personal jurisdiction of any state or federal court in New York, New York to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Notwithstanding the foregoing, disputes, claims, or controversies concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Sites shall not be subject to arbitration.
The arbitration shall be conducted by a single arbitrator, governed by JAMS pursuant to its Comprehensive Arbitration Rules & Procedures (collectively, “JAMS Rules”), as modified by these Terms of Service, and administered by JAMS. The JAMS Rules and fee information are available at www.jamsadr.org or by calling JAMS at 1-800-352-5267.
Mindspark shall bear the cost of any arbitration filing fees and arbitration fees for claims of up to $75,000, unless the arbitrator finds your claims, defenses or other fee-generating activity to be asserted or conducted for an improper purpose or frivolous. You are responsible for all other additional costs that you may incur in the arbitration including but not limited to attorney’s fees and expert witness costs unless Mindspark is otherwise specifically required to pay such fees under applicable law. For claims that total more than $75,000, the JAMS Rules will govern payment of filing fees and arbitration fees. The decision of the arbitrator will be in writing and binding and conclusive on Mindspark and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction. Mindspark and you agree that dispositive motions, including without limitation motions to dismiss and motions for summary judgment, will be allowed in the arbitration. The arbitrator must follow these Terms of Service and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees. Mindspark and you understand that, absent this mandatory arbitration provision, Mindspark and you would have the right to sue in court and have a jury trial. Mindspark and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
You or Mindspark may choose to pursue a claim in small claims court where jurisdiction and venue over you and Mindspark otherwise qualifies for such small claims court and where the claim does not include a request for any type of equitable relief.
You have the right to opt out and not be bound by the provisions requiring arbitration by sending written notice of your decision to opt out to Mindspark Interactive Network, Inc., Attn: Legal, 29 Wells Avenue., Suite 300, Yonkers, NY 10701 AND firstname.lastname@example.org. To be effective, this notice must be postmarked by 30 days after the first day you use the Service after April 24, 2015. If you have an account on the Service, the notice to email@example.com must be sent from the email address we have on file for that account. If you do not opt out via this method specified in this paragraph, you will be bound to arbitrate disputes, claims, or controversies in accordance with the terms of these paragraphs. If you opt out of the provisions requiring arbitration, Mindspark will not be bound by them either.
If any clause within this Disputes/Arbitration section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect. In any event, if for any reason a claim, dispute or controversy between Mindspark and you is before a court (e.g., if the arbitration provisions are found unenforceable or if pursuant to these Terms of Service the matter is not subject to arbitration), Mindspark and you agree to waive, to the fullest extent allowed by law, any trial by jury.
This Disputes/Arbitration section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Mindspark, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms of Service (such as with respect to their validity or enforceability), the Service, any person’s access to and/or use of the Service, and/or the provision of content, products, services, and/or technology on or through the Service.
20. Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
Mindspark and you agree that Mindspark and you will resolve any disputes, claims or controversies on an individual basis, and that any disputes, claims, and controversies arising out of or relating to these Terms of Service (such as with respect to their validity or enforceability) or the Service (for example, relating to any person’s access to or use of the Service, or the provision of content, products, services, or technology on or through the Service, or the handling of information collected on the Service), will be brought in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Mindspark and you further agree that Mindspark and you shall not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to these Terms of Service (such as with respect to their validity or enforceability) or the Service (for example, relating to any person’s access to or use of the Service, or the provision of content, products, services, or technology on or through the Service, or the handling of information collected on the Service).
If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims or controversies will not be subject to arbitration and must be litigated in federal court located in New York County, New York.
This Class Action Waiver section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Mindspark, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms of Service (such as with respect to their validity or enforceability) or the Service (for example, relating to any person’s access to or use of the Service, or the provision of content, products, services, or technology on or through the Service, or the handling of information collected on the Service).
These Terms of Service constitute the entire and exclusive understanding and agreement between us and you regarding the Service, and these Terms of Service supersede and replace any and all prior oral or written understandings or agreements between us and you regarding such topic. If we fail to enforce any part of these Terms of Service, it will not be considered a waiver. Any amendment to or waiver of these Terms of Service by us must be made in writing and signed by us. All of our rights and obligations under these Terms of Service (including any license rights) are freely assignable by us in connection with a merger, acquisition, or sale of assets, or by operation of law or otherwise. Nothing in these Terms of Service shall prevent us from complying with the law. We reserve all rights not expressly granted to you.