PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF USE CAREFULLY. THEY SHALL GOVERN YOUR USE OF THE SOFTWARE AND SITE (AS THESE TERMS ARE DEFINED BELOW). IF, AFTER READING THESE TERMS AND CONDITIONS OF USE, YOU WISH TO USE THE SOFTWARE PLEASE INDICATE YOUR ACCEPTANCE HEREOF BY CLICKING "I AGREE" AT THE END.
TERMS AND CONDITIONS OF USE
The Magentic Desktop enhancer software, and the Magentic Toolbar Feature (the "Software"), are provided by IncrediMail Ltd. and/or its affiliates and subsidiaries (collectively "IncrediMail" or "we") to you ("you" or "your") and others who use the Software (collectively "User" or "Users"), subject to these terms and conditions of use and all modifications thereto including all rules that may be published from time to time by IncrediMail ("Terms and Conditions" or "Agreement"). This Agreement shall also govern your use of the Site currently located at www.magentic.com (the "Site").
Your use of the Software and Site, including any content and software contained therein, signifies your understanding and agreement that such use is entirely at your own risk. You agree to use the Software and Site solely for your personal use as a Desktop enhancer and as a toolbar (as described below). IncrediMail does not guarantee reliability, accuracy, or completeness of the Software, Service or Site. The Software is provided to any user who agrees to be bound to this Agreement and by additional terms that shall be added by IncrediMail from time to time (such as payment terms with respect to the Service or any part thereof). Users who violate this Agreement may be barred from using the Software, at IncrediMail's sole discretion. In consideration of your use of the Software, and without derogating from IncrediMail's right to charge fees as additional consideration for the Service or any part thereof. You agree not to transfer or resell the Software, in whole or in part, to any third party, or allow unauthorized access to the Software, by any third party.
2. CHANGES IN TERMS AND CONDITIONS OF USE
IncrediMail may change these Terms and Conditions from time to time and at any time, with or without a release of a new version of the Software, and without actual notice to you. All such changes to this Agreement will appear on the Site. IncrediMail may provide additional notice of such changes by providing a link from the Service to the Site. You agree that your continuing to use the Software, Service and/or Site for a period of thirty (30) days after such notice has been posted on the Site for the first time shall constitute your consent to the new or revised set of Terms and Conditions.
3. AUTHORIZED PERSONS
You are responsible and liable for any activity by any person who uses the Software through your computer. You agree to immediately notify IncrediMail of any unauthorized use of the Software or any other breach of security known or suspected by you.
4. SOFTWARE LIMITED LICENSE AND USE POLICY
The Software may have been downloaded from the Site or another authorized web site. If you have downloaded the Software- you acknowledge that no payment was made by you for the Software, regardless of the method of delivery, and if payments were made, they were made for other equipment, products or services and not for the Software. To ensure the proper functionality and security of the Software always make sure you are using a current and authorized copy of the Software. The Software is being licensed to you by IncrediMail on an "AS IS" basis, for your private personal use only. Except as expressly permitted hereunder, you agree not to extract or harvest any information from any portion of the Software, including without limitation, from any User Profile, or any other portion of the Site, or to reverse engineer, decompile, disassemble, alter, duplicate, make copies of, distribute or provide others with the Software, or any information available on, derived or extracted from the Site and/or Software or any part of the foregoing. IncrediMail may, at its sole discretion, limit, deny, or create different levels of use for different users, or cancel some or all of the functionality of the Software or the Service at any time, without prior notice.
5.1. During the installation process IncrediMail will offer you to accept IncrediMail’s search service as your default search service and to set IncrediMail’s search service web page as your home page, powered by third party search service provider. You can choose not to accept these changes. If you choose to accept such offer, Magentic installation program will change your browser home page to IncrediMail’s search service web page and your default search service to IncrediMail’s search service.
5.2. IncrediMail may change from time to time, without noticing you: (1) the content, design or layout of the search service web page; and/or (2) the search service provider to other search service provider.
5.3. You may uninstall the Software anytime by using “Add or Remove Programs” dialog under the Control Panel, or from the Start Menu at your desktop under “Programs -> Magentic”. Magentic uninstall process will not change your default search provider and your home page.
6. PRIVACY STATEMENT
This statement applies to IncrediMail's information collection and use policies with respect to use of the Site and Software. Amendments to this statement will be posted at this URL and will be effective when posted. Your continued use of this Site or the Software following the posting of any amendment, modification or change to this statement shall constitute your acceptance thereof.
6.1. THE SITE
We do not request nor collect any personal or non-personal information from Users who simply visit the Site.
6.2. THE SOFTWARE
The Magentic desktop software ("Magentic") allows Users to manage their desktop wallpapers and screensavers. The Magentic toolbar feature ("Magentic Toolbar") provides a resource for content featured on the Site and other third party websites as well as features such as Radio, Weather, Games and a search feature. Magentic Toolbar search feature is designed to function in conjunction with a third party search engine provider. Your use of Magentic Toolbar search feature will invoke a web search via a third party provider. To get started, a User must first download the Software. While installing the Software some information will be collected as described more fully below.
6.2.1 SPECIAL NOTE REGARDING INCREDIGAMES
IncrediMail has been granted a license to market and promote Oberon Media Inc.'s IncrediGames Web Site and games to IncrediMail's users. If you choose to use IncrediGames Web Site and/or install the games offered in IncrediGames Web Site this section 6.2.1 applies to you, along with Oberon Media Inc.'s terms of service which appears on IncrediGames Web Site and at the beginning of each game installation process. IncrediMail is not responsible for the content, quality and performance of such games and for any warranty, support, maintenance or other obligations related to IncrediGames web site and games. IncrediMail may gather information related generally to the installation process of the games and may use non-personally identifiable information provided by the users of the games in order to create statistical reports about the installation of the games. IncrediMail shall only collect and maintain the aforementioned information in an aggregated, anonymous form. During the installation of the games, you will be offered to accept IncrediMail’s search service as your default search service and to set IncrediMail’s search service web page as your home page. You can choose not to accept this offer. If you choose to accept this offer then the terms and conditions of Sections 5.1 - 5.3 of this Agreement shall apply.
6.3. SOFTWARE REGISTRATION INFORMATION
During the installation process of the Software, IncrediMail will collect certain non-personally identifiable information about you, such as country, language, Magentic version ID, Magentic setup ID, affiliate IDs, and installation date. Other than this information IncrediMail will not collect nor maintain any other personally or non-personally identifiable information about any User.
6.4. TELL A FRIEND SERVICE
The Software may prompt or otherwise enable you to send an invitation to join Magentic to persons whose contact addresses appear in your address book. Should you elect to do so, we will send an email invitation to join Magentic to the contacts you select and such invitation will appear to be sent from your email account. Any email address that you select or enter in order to send such invitation will only be used by us for sending such invitation and for collecting and compiling statistical non-personally identifiable information.
6.5. OUR USE OF THE INFORMATION YOU PROVIDE
IncrediMail will only use information that is provided in order to provide Users with important information about the Software (such as upgrades, modifications, etc.) and to announce new products and services available to Users. Except as necessary to perform the functions of the Software and/or Site, IncrediMail will not share, sell or lease any personally identifiable information about any User to any unaffiliated third party for any purpose without that User's permission.
6.6. CUSTOMER SUPPORT FORMS
IncrediMail may post from time to time customer support forms. These forms may ask for personally and non-personally identifiable information including but not limited to license registration information, purchase information and a valid email address. This information will be used solely for the purpose of providing efficient customer support.
6.7. NEWSLETTER SUBSCRIPTION
IncrediMail may post from time to time a newsletter subscribe/unsubscribe forms. These forms may ask for a valid email address. This information will be used solely for the purpose of subscription to or unsubscription from the Magentic newsletter list.
6.8. NON-PERSONALLY IDENTIFIABLE INFORMATION
IncrediMail will use certain non-personally identifiable information provided by Users for the following purposes: To create aggregate, non-personal, demographic reports about the Users of the Software. Provide Users with certain content that may be of interest to that User based on the information the User provides.
6.9. GENERAL USAGE PATTERNS
IncrediMail may gather information related generally to Users' use of the Software, and Site including without limitation: current wallpaper, current screensaver, Magentic manager open and close time, Magentic tray start and end time, Number of installations and/or uninstallations of Magentic Toolbar, Number of users of Magentic Toolbar, and number of downloads of Magentic Toolbar versions, Number of searches made through Magentic Toolbar, and number of clicks on Magentic Toolbar and on each button of Magentic Toolbar. This information, which will only be collected and maintained in aggregate, anonymous form, will be used, among other things, to: Provide IncrediMail with a better understanding of how Users use the Software and the various features thereof; Help IncrediMail to create and provide new services and offerings to Users; and Conduct and publish aggregate, anonymous, market research results.
6.10. COMPUTER SETTINGS
IncrediMail may collect settings, technical and other information from Users' computers, such as a computer's operating system, browser versions used, various communication parameters and other information related to the operation and interaction of the Software, subject to the provisions herein. This information will neither contain nor be linked to any personally identifiable information.
6.12. IP ADDRESSES
An Internet Protocol address is a number that's automatically assigned to a computer when using the Internet. Web servers can automatically identify individual computers by their IP address. IncrediMail may collect IP addresses to: Facilitate system administration; Diagnose system problems; Report aggregate User information; and Avoid hacking attacks on the IncrediMail's servers which are used for the operation of the Software and the Site. IncrediMail does not link IP addresses to any personally identifiable information, even if such information is voluntarily provided by a User. When you install Magentic Toolbar you will not be required to actively provide us with information. However, Magentic Toolbar will create on your computer a unique identifier for you, based on your IP address, the time and date of installation, and shall send only such identifier to IncrediMail's servers, or any other servers of third parties that IncrediMail may or might be associated with, in relation to Magentic Toolbar ("IncrediMail's Associates"). Your personal identifiable information will not be viewed nor accessed by IncrediMail (nor IncrediMail's Associates) nor can it be reproduced from the unique identifier by IncrediMail, and/or IncrediMail's Associates, in any manner, and shall only be used to produce statistical reports about your use of Magentic Toolbar.
6.13. CONSENT TO PROCESSING
Users, including without limitation, Users in the European Union, fully understand and unambiguously consent to the collection and processing of their non-personally identifiable information, in the United States.
6.14. LEGAL DISCLOSURE OF INFORMATION
Notwithstanding anything to the contrary in this Agreement, IncrediMail shall, pursuant to valid legal process such as a search warrant, subpoena or court order, allow access to all available and relevant information, including Users' IP addresses, in order to comply with such valid legal process and to otherwise protect IncrediMail's rights and property. If warranted, IncrediMail may also allow access to this information in special emergencies where physical safety is at risk.
While there is no such thing as "perfect security" on the Internet, we will take all reasonable steps to insure the safety of your personally identifiable information.
6.16. OTHER WEB SITES; LINKS
The Site may contain links to other Web sites. IncrediMail is not responsible for the privacy practices or the content of such Web sites. The Site may also contain links to 3rd party e-commerce solutions that collect the purchaser's name, email address, mailing address, credit card number, and expiration date when ordering licenses to Magentic products. This allows them to process and fulfill orders and provide notification of the order status.
6.17. CHOICE; OPT OUT
7. USER CONDUCT
Copy or Use: Information, software or other material that is protected by copyright or other proprietary or intellectual property right, or derivative works with respect thereto, without obtaining permission of the copyright owner or rights holder.
THE SOFTWARE AND SITE MAY BE VULNERABLE TO VARIOUS SECURITY ISSUES AND SHOULD NOT BE CONSIDERED SECURE. BY USING THE SOFTWARE AND SITE YOU MAY BE SUBJECT TO VARIOUS RISKS. IF YOU DO NOT WISH TO BE SUBJECTED TO THESE RISKS, YOU ARE ADVISED NOT TO USE THE SOFTWARE OR SERVICE.
9. INTELLECTUAL PROPERTY RIGHTS
As between IncrediMail and you, IncrediMail is the sole owner of the Software, and Site, including without limitation, all applicable U.S. and non-U.S. copyrights, patents, trademarks, and trade secrets, and other intellectual property rights thereto. Except as otherwise specifically provided in these Terms and Conditions, you may not download or save a copy of the Software or Site or any portion thereof, for any purpose. You may, however, print a copy of individual screens appearing as part of the Software and Site solely for your personal use or records. All title and intellectual property rights in and to the content of any third party web site which may be linked to or viewed in connection with the Software is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content except as allowed by such third party.
10. UNSOLICITED MATERIALS
Any unsolicited materials submitted or sent to IncrediMail will be deemed to be not confidential or secret. By submitting or sending information or other material to IncrediMail you: (a) Warrant that you have all rights of any kind to the material and that to the best of your knowledge no other party has any rights to the material; and (b) Unless stated specifically otherwise therein, grant IncrediMail an unrestricted, perpetual, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute the material, and you further agree that IncrediMail is free to use any ideas, know-how, concepts or techniques you send us for any purpose, without any compensation to you or any other person.
11. DISCLAIMER OF WARRANTIES
THE SOFTWARE, SERVICE AND SITE ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITATION OF THE FOREGOING, INCREDIMAIL SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO: (i) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, SECURITY, USEFULNESS, INTEROPERABILITY, OR CONTENT OF THE SOFTWARE, SERVICE OR SITE; AND (ii) ANY WARRANTIES OF TITLE, WARRANTY OF NON-INFRINGEMENT, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY THE SOFTWARE OR SITE, INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF RECORD, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. INCREDIMAIL DOES NOT WARRANT OR GUARANTEE THAT ALL SOFTWARE VERSIONS SHALL BE PROVIDED WITH SIMILAR GRADES AND LEVELS OF SERVICE, FEATURES, FUNCTIONALITY AND THE ABILITY TO USE THE SOFTWARE. INCREDIMAIL DOES NOT WARRANT OR GUARANTEE (1) THAT ANY PROGRAM WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR ANYTHING ELSE MANIFESTING CONTAMINATING OR DESTRUCTIVE PROPERTIES; OR (2) THAT THE FUNCTIONS OR SERVICES PERFORMED BY INCREDIMAIL WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SOFTWARE AND THE SERVICE WILL BE CORRECTED. IT IS YOUR SOLE RESPONSIBILITY TO ISOLATE THE SOFTWARE AND INFORMATION, EXECUTE ANTI-CONTAMINATION SOFTWARE AND OTHERWISE TAKE STEPS TO ENSURE THAT SOFTWARE OR OTHER INFORMATION OBTAINED FROM THE SERVICE OR OTHER USERS, IF CONTAMINATED OR INFECTED, WILL NOT DAMAGE YOUR INFORMATION OR SYSTEM.
12. LIMITATION OF LIABILITY
IN NO EVENT WILL INCREDIMAIL, ITS OFFICERS, DIRECTORS, EMPLOYEES, PARENTS, AFFILIATES, SUCCESSORS OR ASSIGNS, BE LIABLE TO ANY PARTY (i) FOR ANY INDIRECT, DIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR INFORMATION, AND THE LIKE), OR ANY OTHER DAMAGES ARISING IN ANY WAY OUT OF THE AVAILABILITY, USE, RELIANCE ON, OR INABILITY TO USE THE SITE, SOFTWARE, OR SERVICE, EVEN IF INCREDIMAIL SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE; OR (ii) FOR ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN, OR DESTRUCTIVE PROPERTIES OF ANY OTHER SOFTWARE OR OTHER CONTENT INCLUDED AS PART OF THE SERVICE OR BY THE SITE. 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, INCREDIMAIL'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT WILL INCREDIMAIL'S LIABILITY WITH RESPECT TO THE USE OF THE SOFTWARE AND SERVICE EXCEED THE HIGHER OF (I) ONE HUNDRED ($100) U.S. DOLLARS, OR (II) THE ACTUAL CONSIDERATION RECEIVED BY INCREDIMAIL FOR THE USE OF THE SOFTWARE AND SERVICE.
By agreeing to use the Software and/or Site, you agree to defend, indemnify and hold IncrediMail, its affiliates, officers, directors and employees harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys' fees, arising in any way from your use of the Service or Site or the creation, the placement or transmission of any message, information, software or other materials through the Service by you or users authorized by You or related to any violation of these Terms and Conditions by You or any user authorized by you.
14. CANCELLATION AND TERMINATION
IncrediMail may, at its sole discretion, terminate the license provided hereunder or your use of the Software, permanently or temporarily, at any time and without cause. You may at any time cancel your use of the Software Upon cancellation or termination, you will immediately cease all use of any software and any documentation provided to you by IncrediMail and return or destroy all copies thereof. Except as otherwise expressly provided herein, all sections of these Terms and Conditions which by their nature should survive termination will survive termination, including, without limitation, indemnities, warranty disclaimers, and limitations of liability. Termination is not an exclusive remedy and we reserve all other available remedies in contract, law or equity.
15. LINKED SITES
The Software and Site contain features that may link you to third parties' web sites ("Linked Sites"). These features are provided by IncrediMail only as a convenience. The Linked Sites are not reviewed, controlled or examined by IncrediMail in any way and IncrediMail is not responsible for the content of any such Linked Sites, or any additional links contained therein. The offering of these features does not imply IncrediMail's endorsement of or association with the Linked Sites. It is your sole responsibility to comply with the appropriate terms of service of the Linked Sites as well as with any other obligation under copyright, secrecy, defamation, decency, privacy, security and export laws related to the use of such Linked Sites and any content contained thereon. In no event shall IncrediMail be liable to anyone for any damage arising from or occasioned by the creation or use of the Linked Sites or the information or material accessed-through these Linked Sites. IncrediMail may at its sole discretion add, change, decline or remove, without notice, any feature or link to any of the Linked Sites from the IncrediMail Software and Service and/or introduce different features or links to different users.
16. COPY AND COPYRIGHT AGENT
If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below: Your address, telephone number, and email address; A description of the copyrighted work that you claim has been infringed; A description of where the alleged infringing material is located; 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; An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and 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. To contact IncrediMail's Copyright Agent send email to firstname.lastname@example.org IncrediMail may, at its sole discretion, terminate the accounts of users who infringe others' intellectual property rights.
17. PROVISIONS UNENFORCEABLE OR INVALID
If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
You shall not transfer, assign, sublicense nor pledge in any manner whatsoever, any of your rights or obligations under this Agreement. IncrediMail may transfer, assign sublicense or pledge in any manner whatsoever, any of its rights and obligations under this agreement to a subsidiary, affiliate, or successor thereof or to any third party whatsoever, without notifying you or receiving your consent.
19. APPLICABLE LAWS / JURISDICTION
You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a national or other destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to or through the Service any data or software that cannot be exported out of the United States without prior written government authorization, including but not limited to, certain types of encryption software. The above assurance and commitment shall survive termination of this agreement. You agree that the laws of the State of New York, excluding its conflicts-of-law rules, shall govern this Agreement. Please note that your use of the Software as well as the Service and Site may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with IncrediMail or relating in any way to your use of the Software, Service or Site resides in the courts of the State of New York, and you further agree and expressly consent to the exercise of personal jurisdiction in the courts of the State of New York, in connection with any such dispute and including any claim involving IncrediMail or its affiliates, subsidiaries, employees, contractors, officers, directors, telecommunication providers and content providers.
Version: 1.2 Published: August 1, 2009