NOTICE TO USER: THIS END USER LICENSE AGREEMENT ("EULA” or “AGREEMENT")
APPLIES WITH RESPECT TO SOFTWARE APPLICATIONS AND DIGITAL CONTENT OWNED
AND PROVIDED BY PINBALL CORP, AND ITS SUBSIDIARIES (REFERRED TO IN THIS
AGREEMENT AS "WE" OR "PINBALL") FROM ANY PINBALL WEBSITE. THIS
AGREEMENT SETS FORTH YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO YOUR
USE OF ANY PINBALL SOFTWARE (DEFINED IN SECTION 1 BELOW), BUT SHALL NOT
GOVERN YOUR USE OF ANY OTHER SOFTWARE (DEFINED IN SECTION 3 BELOW).
PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING "ACCEPT," "FINISH,"
"CONTINUE" OR A SIMILAR ACKNOWLEDGMENT BELOW, OR BY USING ALL OR ANY
PORTION OF THE PINBALL SOFTWARE, YOU ACCEPT ALL THE TERMS AND
CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT IS
ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU
DO NOT AGREE, DO NOT INSTALL OR USE THE PINBALL SOFTWARE.
Special Notice for Non-English Speakers:
The Pinball Software is suited primarily for the use of English
speakers and, therefore, this Agreement is written in English and is
addressed to English speakers. If you are not proficient in English and
feel that you cannot properly understand this Agreement, we recommend
that you either retain the help of an English speaker to help you
understand and accept the terms of this Agreement or, alternatively,
refrain from installing or using the Pinball Software. In any event, if
you choose to install or Use the Pinball Software, you will be bound by
this Agreement and the Privacy Policy incorporated herein.
Special Notice for Residents of the State of Alaska, USA:
The Pinball Software may be prohibited by Alaska law. Therefore, by
installing or Using the Pinball Software, you represent and warrant
that your computer is not located in the state of Alaska. To the extent
that our systems are able to recognize that your computer is located in
the state of Alaska, we will not enable you to install the Pinball
Software.
Notice for All Users:
By installing the Pinball Software, you get free access to sponsored
content available on the Internet and other software applications. The
Pinball Software will show you a limited number of ads that pop up on
your screen in a separate browser and/or in a Slider format similar to
an Instant Messaging notification. The ads are based on keywords from
the websites you visit. Please note that you may receive Adult-oriented
ads if you utilize keywords connected to, search for or view Adult
websites. See Section 7.2 below for more details. Please also note
that, depending on your browser version, Pinball may become the default
search provider. Once installed and running, you can access the Pinball
Software from your system tray, and you can uninstall it at any time by
using the Add or Remove Programs feature of Microsoft Windows. Please
see Section 3 below for important terms and conditions regarding other
software applications distributed by Pinball.
1. Definitions.
"Pinball Software" means (a) the Search Assistant (as described in
Section 7), or any other software or digital content owned and provided
by Pinball, that accompanies this Agreement; and (b) any bug fixes,
upgrades, modified versions or updates to the Pinball Software
(collectively referred to as "Updates") that we subsequently provide to
you. "Use," "Used" or "Using" means to access, install, download, copy
or benefit from utilizing the functionality of the Pinball Software.
2. Owner of Computer; All Users Bound; Age Limitation; Software License.
You represent and warrant either that you are the owner of the computer
and that you have authorized the download and installation of the
Pinball Software or that the owner of the computer has authorized you
to do so. You agree, with respect to all users of the computer on which
you have caused the Pinball Software to reside, to provide a copy of
this Agreement and to obtain their consent to the terms and conditions
of this Agreement before allowing them to Use the Pinball Software.
Alternatively, if you have the legal right to accept this Agreement on
behalf of one or more users of the computer on which you have caused or
authorized the Pinball Software to reside, then you hereby accept this
Agreement on behalf of all such other users. You understand that the
presence of the Pinball Software on any computer is voluntary and that
you may remove it at any time. You must be at least 18 years of age to
Use the Pinball Software. By accepting the terms of this Agreement
and Using the Pinball Software, you represent that you are over the age
of 18. As long as you comply with, and subject to, the terms of this
Agreement, Pinball grants to you a non-exclusive, revocable license to
Use the Pinball Software, in binary executable form only, solely for
the purposes described in this Agreement.
3. Other Software.
In addition to the Pinball Software, you will also be given the
opportunity to access, download and/or use the technologies, services
and/or content owned by third parties (collectively, “Other Software”).
If you choose to access or use such Other Software, you acknowledge and
agree that your rights to such Other Software are governed solely by
the license terms and conditions accompanying the Other Software. For
example, you may be required to click and accept additional end user
license terms (“Other EULA”) prior to the download, installation,
copying or use of such Other Software. The Other EULA governs your use
of Other Software, and not the terms of this Agreement. However, such
Other EULA shall not affect any terms in this Agreement or your use of
the Pinball Software. You further agree that Pinball is not responsible
for any loss or damage of any sort incurred as a result of your
download, installation, or use of Other Software, and you hereby waive
and hold Pinball harmless from any losses arising under any claim you
may have against Pinball with respect to Other Software.
4. Restrictions.
You will: (a) not reverse engineer, disassemble or decompile the
Pinball Software or attempt to discover or recreate the source code to
the Pinball Software, except as otherwise required by applicable law,
(b) comply with all applicable laws, including U.S. export control
laws, in your Use of the Pinball Software, (c) not make any
modification, adaptation, improvement, enhancement, translation or
derivative work of or to the Pinball Software, (d) not remove, alter or
obscure any proprietary notices (including copyright notices) of
Pinball or its licensors in the Pinball Software, (e) not Use the
Pinball Software for purposes for which it is not designed, and (f)
only Use the Pinball Software for personal, non-commercial use.
5. Intellectual Property Rights.
The Pinball Software is the intellectual property of, and owned by
Pinball and its licensors and suppliers. The structure, organization
and code of the Pinball Software are the valuable trade secrets and
confidential information of Pinball and its licensors and suppliers.
The Pinball Software is protected by state, federal and international
copyright protections, including without limitation by United States
copyright law, international treaty provisions and applicable laws in
the country in which it is being used. Except as expressly stated
herein, this Agreement does not grant you any intellectual property
rights in the Pinball Software by implication, estoppel or any other
legal theory, and all rights not expressly granted in this Agreement
are reserved by Pinball and its assigns, licensors and suppliers.
6. Third Party Code; Notice and Attribution.
The Pinball Software includes third party software subject to open
source license terms, including, without limitation, the following
applications: Encryption Engine, Compression Algorithm, PCRE, Firefox
Plug-in Modules, and NSIS Toolkit and Plug-ins. All rights are reserved
by the licensors of such code and ownership is attributed as follows:
Encryption Engine: Copyright © 2002, Dr Brian Gladman brg@gladman.me.uk, Worcester, UK.
Compression Algorithm: Copyright © 1995-2002 Jean-loup Gailly and Mark Adler.
PCRE: THE BASIC LIBRARY FUNCTIONS Written by: Philip Hazel, Email local
part: ph10, Email domain: cam.ac.uk University of Cambridge Computing
Service, Cambridge, England. Copyright © 1997-2007 University of
Cambridge All rights reserved. THE C++ WRAPPER FUNCTIONS Contributed
by: Google Inc. Copyright © 2007, Google Inc.
Firefox Plug-ins: Copyright © 1998 Netscape Communications Corporation. All Rights Reserved.
NSIS Toolkit and Plug-ins: Copyright © 1995 – 2009 Contributors as identified at http://nsis.sourceforge.net/Main_Page
Reference to copyright ownership is for attribution purposes only and
in no event shall be deemed an endorsement by such owners of the
Pinball Software.
You acknowledge and agree that your
right to use these publicly available components of the Pinball
Software is governed by the terms applicable to each application
(“Other Software Terms”). In the event of any conflict with the express
terms of this Agreement and the Other Software Terms, the Other
Software Terms of such publicly available license shall control your
use of the relevant application. In no event shall the Pinball Software
be deemed “open source” or “publicly available” software.
7. Important Information Regarding Pinball's Search Assistant Software. Pinball Software incorporates search functionality software (the “Search Assistant Software”), described as follows:
7.1. Functionality.
The Search Assistant Software recognizes keywords from your Internet
browser to display relevant contextual advertisements. These
advertisements may be displayed on your computer screen at any time
while you are searching and shopping online (and not necessarily while
you are using any product or service related to or downloaded with the
Search Assistant Software); the advertisements pop-up on your screen in
a separate browser and/or are displayed in a Slider format similar to
an Instant Messaging notification. The Search Assistant
Software neither stores any personally identifiable information nor
records your browsing behavior. Please refer to Section 12 (below) for
further information about our privacy policies.
7.2. Display of Advertising.
The Search Assistant Software starts automatically when you start your
computer, runs in the background on your computer, displays an icon in
your system tray while running, and may periodically direct you to our
sponsors' websites and/or show you other forms of advertisements
(including the Slider format). By installing and/or using the Search
Assistant Software you grant Pinball permission to periodically show
you advertisements. The frequency of these advertisements (which will,
for example, pop up on your screen in a separate browser and/or be
displayed in a Slider format) will be limited. Depending on Internet
activity, active users may see about five (5) advertisements per day;
some may see more, some may see fewer. In addition to these ad formats,
you may also receive advertising in the form of icons that are added to
your desktop during the Search Assistant install. When you click any of
the icons you will be directed to that advertiser's offer. If you
decide that you do not want these icons on your desktop, you can easily
remove them by clicking on them and pressing the "Delete" key on your
keyboard. To see a representative example of an advertisement that may
be displayed, go to http://www.hotbar.com/about/products.aspx,
which is incorporated herein by reference. On occasion, you may search
for a website and receive an error from your browser software
indicating that the site cannot be found. When this occurs, the Search
Assistant Software includes a function that may redirect your web
browser to our sponsor's websites based on the content of the website
address, or URL, which you entered. You hereby consent to these
actions. Please note that you may receive ads for Adult-oriented
websites if you utilize keywords connected to, search for or view Adult
websites. An Adult website is one that contains or references (whether
via audio, video, audiovisual, images, sounds or text) any of the
following: profanity, violence, blood and gore, weapons, use of
alcohol, drugs, tobacco, online gambling, pornography, erotica, erotic
images, nudity, sex, sexually explicit images, and sexual references.
Pinball does not permit ads that are themselves pornographic, nor does
it permit advertisements for online "pay-for-play" gambling, either
directly or indirectly, in the United States or other jurisdictions
where such advertisements are disallowed. More generally, Pinball does
not permit ads promoting illegal products or illegal practices.
If you believe you have received an ad that violates these
prohibitions, please contact us at the web or street address listed in
the last section of this Agreement. We request that you enclose a
screenshot of the advertisement (including its ad label) in your
communication to us.
7.3. Identification of Advertisements.
The advertisements that the Search Assistant Software presents
(including those provided in a separate browser window and displayed as
Slider advertisements) are not endorsed by or affiliated with the
websites that trigger their appearance. Advertisements that the Search
Assistant Software presents are branded with a Pinball brand name in,
for example, the browser window or in a conspicuous line of text at the
bottom of a Slider advertisement. This branding will let you know that
the advertisements are brought to you by Pinball and the Search
Assistant Software and not by the website you may be viewing when the
advertisements are displayed.
8. Uninstallation.
You understand and agree that the presence of the Pinball Software on
your computer is voluntary and that you may remove the Pinball Software
from your computer at any time. The Pinball Software may be uninstalled
by going to the "Add or Remove Programs" menu on your computer and
clicking the "Remove" button next to the entry for the Pinball
Software. Specifically, to uninstall the Pinball Software, please
follow these steps: 1. Go to Start menu; 2. Select Control Panel;
3. Select Add or Remove Programs; 4. Select the Pinball Software;
5. Click Change/Remove. You may be required to restart your
computer in order for the uninstallation to take effect. Please note
that the above is the only proper way to ensure complete removal of all
Pinball files – many security applications or other software tools will
not completely or properly remove all of the Pinball files. Some
Internet content and software publishers ("Content Providers"),
including Pinball, require that their users have certain portions of
the Pinball Software (including the Search Assistant Software)
installed on their computer in order to access their content or use
their software applications. Uninstallation of such portions of the
Pinball Software may impact your ability to access such content and/or
use such software.
9. Updates. Pinball, in its
sole discretion, may provide you with Updates to the Pinball Software
as part of this Agreement. The Pinball Software will automatically
check with Pinball for the existence of any Update that Pinball has
released, and in the event that one is available, the Pinball Software
will update itself automatically. Nothing herein shall be construed or
interpreted as requiring Pinball to provide Updates. Pinball will not
install any new software or Update that in our reasonable judgment has
functionality that is materially different from the functionality of
the previously installed Pinball Software without your prior consent.
10. Disclaimer of Warranties and Remedies; Indemnity.
10.1. No Warranty; Disclaimer.
YOUR USE OF THE PINBALL SOFTWARE IS AT YOUR SOLE RISK. THE PINBALL
SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. PINBALL,
AND ITS LICENSORS AND SUPPLIERS, EXPRESSLY DISCLAIM ANY AND ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT. PINBALL, AND ITS LICENSORS AND
SUPPLIERS, MAKE NO WARRANTY THAT (i) THE PINBALL SOFTWARE WILL MEET
YOUR REQUIREMENTS, (ii) THE PINBALL SOFTWARE WILL BE UNINTERRUPTED,
TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED
FROM THE USE OF THE PINBALL SOFTWARE WILL BE ACCURATE OR RELIABLE, (iv)
THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL
PURCHASED OR OBTAINED BY YOU THROUGH THE PINBALL SOFTWARE WILL MEET
YOUR EXPECTATIONS, OR (v) ANY ERRORS IN THE PINBALL SOFTWARE WILL BE
CORRECTED. ANY OTHER SOFTWARE DOWNLOADED OR OTHERWISE OBTAINED VIA
PINBALL SOFTWARE OR THE USE OF THE PINBALL SOFTWARE ARE OBTAINED AND
USED AT YOUR OWN DISCRETION AND RISK AND PINBALL EXPRESSLY DISCLAIMS
ALL WARRANTIES IN AND TO SUCH OTHER SOFTWARE. ANY MATERIAL DOWNLOADED
OR OTHERWISE OBTAINED THROUGH THE USE OF THE PINBALL SOFTWARE,
INCLUDING OTHER SOFTWARE, IS OBTAINED AT YOUR OWN DISCRETION AND 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. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED
BY YOU FROM PINBALL OR THROUGH OR FROM THE PINBALL SOFTWARE SHALL
CREATE ANY WARRANTY.
10.2. Limitation of Damages.
NEITHER PINBALL NOR ANY OF ITS LICENSORS OR SUPPLIERS WILL HAVE ANY,
AND YOU RELEASE PINBALL AND ALL OF ITS LICENSORS AND SUPPLIERS FROM
ANY, LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT, NEGLIGENCE OR
OTHERWISE) FOR ANY DAMAGES SUSTAINED BY YOU ARISING FROM THE USE OR
INABILITY TO USE THE PINBALL SOFTWARE OR THE OTHER SOFTWARE, INCLUDING,
WITHOUT LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR
CONSEQUENTIAL DAMAGES OR LOSS OF DATA, SAVINGS, OR PROFITS OR THE COST
OF PROCURING SUBSTITUTE GOODS, EVEN IF PINBALL OR ANY OF ITS LICENSORS
OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN
NO EVENT SHALL PINBALL'S OR ANY OF ITS LICENSORS’ OR SUPPLIERS’ ENTIRE
LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED
ONE HUNDRED UNITED STATES DOLLARS (US $100.00). THE LIMITATIONS IN THIS
SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF
ANY LIMITED REMEDY UNDER THIS AGREEMENT.
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. IN
SUCH JURISDICTIONS, THE FOREGOING DISCLAIMERS SHALL APPLY TO THE
GREATEST EXTENT PERMITTED BY APPLICABLE LAW OR SHALL BE RECONSTRUCTED
TO COMPLY WITH THE DISCLAIMER'S INTENT TO THE FULLEST EXTENT PERMITTED
BY SUCH JURISDICTION.
Any representations made with
respect to, and support or assistance offered by Pinball in connection
with, the Pinball Software are offered by Pinball only and not by any
third party providing open source to Pinball.
11. Use of Information.
By installing the Pinball Software, you grant Pinball permission to
collect and use certain information. You acknowledge that you have
reviewed the Pinball Privacy Policy, which describes Pinball's
practices with respect to the collection, use and disclosure of
information in connection with your Use of the Pinball Software. A copy
of the Privacy Policy is available at http://www.hotbar.com/about/privacypolicy.htm.
Pinball reserves the right to change the provisions of its Privacy
Policy from time to time. Pinball will post any changes to the Privacy
Policy at the website address in the preceding sentence. Your Use of
the Pinball Software following the posting of such changes to the
Privacy Policy will constitute your acceptance of any such changes.
11.1. Infringement Reporting Procedure.
Pinball shall not be responsible for Other Software and/or content
hosted by non-Pinball content providers. However, if you are aware of
any infringing or illegal content hosted by a website that utilizes the
Pinball Software as an access control mechanism, please refer to
Section 8 of Pinball’s Terms of Use located at http://www.hotbar.com/about/termsofuse.htm, and follow the instructions therein to report such infringing activities.
12. Compatibility.
Pinball does not warrant that the Pinball Software will be compatible
with your hardware or other software installed on your computer system.
Compatibility issues may cause your computer's performance to suffer.
In the event that the Pinball Software is not compatible with your
hardware or other software installed on your computer system, the
Pinball Software can be uninstalled. Please refer to Section 8 (above)
for detailed uninstall directions. Like all software, the Pinball
Software utilizes some of your computer's resources to run, including
system memory and your Internet connection. Use of the Pinball Software
on a computer with inadequate system resources will cause such
computer's performance to suffer.
13. User Representations and Warranties.
You acknowledge, represent and warrant that (a) you own the
computer on which you are installing the Pinball Software, or have the
authority to install the Pinball Software on such computer; (b) your
installation and/or Use of the Pinball Software will not violate any
local, state or federal laws that apply to you or to the Use or
installation of the Pinball Software; and (c) Pinball is not causing
the Pinball Software to be installed on your computer, but has provided
the Pinball Software to you, which you are installing of your own
volition.
14. Indemnification. You agree to
defend, indemnify, and hold harmless Pinball, its licensors and
suppliers, and each of their respective officers, directors and
employees, from and against any lawsuits, claims, losses, damages,
fines and expenses (including attorneys' fees and costs) arising out of
your use of the Pinball Software or your breach of this Agreement.
15. Export.
You agree that the Pinball Software may not be acquired, shipped,
transported, exported, or re-exported (a) into (or to a national or
resident of) any U.S. embargoed country or (b) to anyone on the
U.S. Treasury Department's list of Specially Designated Nationals or
the U.S. Department of Commerce's Table of Denial Orders. By using the
Pinball Software, you represent and warrant that you are not located
in, under control of, or a national or resident of any such country or
on any such list.
16. Governing Law; Dispute Resolution.
This Agreement will be governed by and construed in accordance with the
laws of the State of California, U.S.A., without regard to its choice
of law principles to the contrary. Any controversy, dispute or claim
arising out of or relating to this Agreement or breach thereof shall be
resolved by binding arbitration administered by Judicial Arbitration
and Mediation Services, Inc. pursuant to its Comprehensive Arbitration
Rules and Procedure (the "Rules"), except as otherwise provided herein.
Arbitration shall be the exclusive method of resolving any controversy,
dispute or claim arising out of or relating to this Agreement. Any such
controversy or claim must be arbitrated on an individual basis, and
must not be consolidated in any arbitration with any claim or
controversy of any other party. Any arbitration conducted hereunder
shall take place in San Francisco, California. Judgment on any
arbitration award may be entered in any court having jurisdiction. The
arbitrator's fee and other expenses of the arbitration process shall be
shared equally. The parties shall bear their own respective costs and
attorneys' fees. California law, to the extent permitted, shall govern
all substantive aspects of the dispute and all procedural issues not
covered by the Rules. Nothing in this section shall prohibit Pinball
from seeking injunctive relief before an appropriate court to the
extent necessary to protect its rights pending resolution of the
dispute in accordance with the foregoing provisions. 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 webpage, the Software,
the services or this Agreement must be made within one (1) year after
such claim or cause of action arose or be forever barred.
17. United States Government End Users.
If you are an end user acting on behalf of the United States Government
(“U.S. Government”), the Pinball Software is provided to you with
restricted rights. Use, duplication, or disclosure by the U.S.
Government is subject to restrictions as set forth in subparagraph
(c)(1)(ii) of the Rights in Technical Data and Computer Software clause
at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial
Computer Software - Restricted Rights at 48 CFR 52.227-19, as
applicable. Manufacturer is Pinball Corp., 3600 136th Place SE,
Bellevue, WA 98006 USA.
18. Miscellaneous. This
is the entire agreement between Pinball and you relating to the Pinball
Software, and it supersedes any prior representations, discussions,
undertakings, communications or advertising relating to the Pinball
Software. If any part of this Agreement is held by a court to be
illegal, invalid or unenforceable, then that provision shall be deemed
severable and will not affect the validity of the balance of the
Agreement, which will remain valid and enforceable according to its
terms. This Agreement may only be modified by a writing signed by an
authorized officer of Pinball. If you violate any term of this
Agreement, Pinball may terminate this Agreement without waiving any
other rights. This Agreement is assignable by Pinball. You may not
assign your rights and obligations under this Agreement.
19. Contact Us.
If you have any questions about Pinball’s Seekmo program, a Pinball Web
site, or any Software or related services, you should first consult the
Seekmo Web site at http://www.seekmo.com.
This site includes links to program information, answers to frequently
asked questions, and current policies. If you have further questions or
concerns, please contact us at http://www.seekmo.com/support/contactus.aspx or write to Seekmo Support, 3600 136th Place SE, Bellevue, WA 98006.