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Spark Studios Terms of Service

Thank you for your interest in Spark Studios. The following terms and conditions apply to all users who registered or logged-in to the SPARK STUDIOS Web site located at www.sparkstudios.com or downloaded/received the Spark Studios Ad Kit on or after June 1, 2008.

You Must Agree to these Terms of Service to Use SPARK STUDIOS Product
By using or registering for the SPARK STUDIOS, you agree to these terms and conditions Terms of Service. You agree to accept notices electronically. Each time you use a SPARK STUDIOS, you reaffirm your acceptance of the then-current Terms of Service. If you do not wish to be bound by these Terms of Service, you may discontinue using the SPARK STUDIOS ad network. You cannot use or sign up for SPARK STUDIOS Product until you have accepted these Terms of Service.



SPARK STUDIOS Product
For purposes of these Terms of Service, the term "SPARK STUDIOS Product" shall mean any one or more of the following: (I) SPARK STUDIOS Ad Kit software (whether preinstalled, on a medium or offered by download), (II) SPARK STUDIOS Web sites provided by or through SPARK STUDIOS from Spark Studios Inc. and its business divisions (collectively "Spark Studios"). The terms and conditions governing the SPARK STUDIOS Ad Kit software are found in the Spark Studios® Inc. Of the terms and conditions of the foregoing is a prerequisite to your use of the Spark Studios Ad Kit software. With respect to the Spark Studios Ad Kit software, to the extent there is any inconsistency between the terms and conditions and the terms and conditions set forth in these Terms of Service, the terms and conditions shall govern. The SPARK STUDIOS Product does not include the services integrated into Spark Studios’s proprietary ad serving system.



Modifications to the Terms of Service 
Spark Studios may change the Terms of Service at any time and in its sole discretion. The modified Terms of Service will be effective immediately upon posting and you agree to the new posted Terms of Service by continuing your use of the SPARK STUDIOS Product. If you do not agree with the modified Terms of Service, your only remedy is to discontinue using the SPARK STUDIOS Product and cancel your registration.



Requirements for Use or Registration of SPARK STUDIOS Products 
You represent and warrant that you have adequate legal capacity to enter into binding agreements such as these Terms of Service. One or more of the SPARK STUDIOS Products may require the user to register and provide information to Spark Studios, such as name, e-mail address, and company name (the "Registration Information"). If you register for any SPARK STUDIOS Product, you agree to provide accurate and complete Registration Information and you agree to keep such information current.



Registered User Information
The SPARK STUDIOS Privacy Policy explains how Spark Studios collects and uses information at this website, www.sparkstudios.com and the choices that you have with respect to that information. You consent to Spark Studios using your registration information and other information collected by Spark Studios under the terms of the SPARK STUDIOS Privacy Policy.
By registering with or using a SPARK STUDIOS Product, you consent to the collection and use of your personal information and the transfer of this information to the United States or other countries for the processing and storage by Spark Studios.



Your Responsibility
You are responsible for all activity made by you or anyone you allow to use your SPARK STUDIOS account. You agree to keep confidential the passwords associated with your account. You agree to indemnify and hold harmless Spark Studios for losses incurred by Spark Studios or another party due to someone else using your account or password as a result of your failure to use reasonable care to keep your account information confidential or as a result of your failure to use reasonable care while using the SPARK STUDIOS Product.
You are responsible for any materials and content you post, distribute or otherwise make available on or through the SPARK STUDIOS Product.



Communications
You are responsible for obtaining your own Internet access, such as maintaining computer hardware and other equipment needed for access to and use of the SPARK STUDIOS Product, and all charges related thereto. Any communications charges incurred by you to use the SPARK STUDIOS Product are your responsibility.





You May Use the SPARK STUDIOS Product for Lawful Purposes Only
You may use the SPARK STUDIOS Product for lawful purposes only and only for purposes of creating online SPARK STUDIOS advertisements for delivery through Spark Studios's proprietary ad serving system.



Content You May Use 
Spark Studios, its vendors and SPARK STUDIOS users who lawfully post content such as flash templates, source code, information, software and other materials ("Content") in the SPARK STUDIOS Product own the intellectual property rights to that Content. The Content is protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information only as authorized by Spark Studios or its vendors. You agree that you will not take any action to interfere with Spark Studios's or its vendors' ownership of or rights in the Content and you will not attempt to circumvent any mechanisms for preventing the unauthorized reproduction or distribution of the Content.
You may use Content available on the SPARK STUDIOS Products only for use with Spark Studios’s proprietary ad serving system. You will be given the opportunity to download certain Content such as Flash templates and the Ad Kit, but you may do so only for the purpose of creating online SPARK STUDIOS advertisements for delivery through Spark Studios’s proprietary ad serving system. You may not use these materials for delivery through any other ad serving provider or for any creative purpose other than creating online SPARK STUDIOS ads unless specifically authorized by Spark Studios.



Content You Upload into the SPARK STUDIOS Product
You represent and warrant that any Content or other materials you provide hereunder or otherwise introduce into the SPARK STUDIOS Product is not deceptive, misleading, obscene, defamatory, illegal or unethical and does not contain any viruses, worms, Trojan horses or other items that could damage the SPARK STUDIOS Product and/or Spark Studios proprietary ad serving system. You agree to indemnify and hold Spark Studios harmless against any third party claim arising from a breach of the foregoing representation and warranty. You may only post Content to public areas on SPARK STUDIOS Products that you created or which the owner of the Content has given you permission to post. You may not post or distribute Content to public areas on SPARK STUDIOS Products that is illegal or that violates these Terms of Service. By posting or submitting Content to public areas of SPARK STUDIOS Products, you represent and warrant that (i) you own all the rights to this Content or are authorized to use and distribute this Content to public areas of SPARK STUDIOS Products and (ii) this Content does not and will not infringe any copyright or any other third-party right nor violate any applicable law or regulation.

You or the owner of the Content retain ownership of all right, title and interest in Content that you post to public areas of any SPARK STUDIOS Product. However, by submitting or posting Content to public areas of SPARK STUDIOS Products (for example, posting a message on a message board or submitting your picture), you grant Spark Studios, its parent, affiliates, subsidiaries, assigns, agents and licensees the irrevocable, perpetual, worldwide right to reproduce, display, perform, distribute, adapt and promote this Content in any medium. Once you submit or post Content to any public area on an SPARK STUDIOS Product, Spark Studios does not need to give you any further right to inspect or approve uses of such Content or to compensate you for any such uses. Spark Studios owns all right, title and interest in any compilation, collective work or other derivative work created by Spark Studios using or incorporating Content posted to public areas of SPARK STUDIOS Products.



No Duty to Monitor
Spark Studios is not required to pre-screen Content available on the SPARK STUDIOS Product, although Spark Studios reserves the right to do so in its sole discretion. Spark Studios is not liable for Content that is provided by others, including you. Spark Studios reserves the right to remove Content that, in its sole judgment, does not meet its standards or does not comply with these Terms of Service, but Spark Studios is not responsible for any failure or delay in removing such material.



Changes to the Service
Spark Studios has the right at any time to change, modify, add to or discontinue or retire any aspect or feature of the SPARK STUDIOS Product including, but not limited to, the software, community areas, Content, hours of availability, equipment needed for access or use, the maximum disk space that will be allotted on Spark Studios servers on your behalf either cumulatively or for any particular service or the availability of the SPARK STUDIOS Product on any particular device or communications service. Spark Studios has no obligation to provide you with notice of any such changes.



Templates Licensed to You
Spark Studios grants you a personal, non-exclusive, non-transferable limited license to the Creative Templates available through the SPARK STUDIOS Products ("Templates") and to use the Templates for the sole and exclusive purposes of creating SPARK STUDIOS advertisements for Spark Studios’s ad serving system in accordance with these Terms of Service. You may not sub-license, or charge others to use or access the Templates without first obtaining written permission from Spark Studios.
You may not sell, assign, grant a security interest in or otherwise transfer any right in the Templates or incorporate it (or any portion of it) into another product. You may not copy the Templates. You may not translate, reverse-engineer or reverse-compile or decompile, disassemble, make derivative works from, or otherwise attempt to discover any source code in the Templates. You may not modify the Templates or use it in any way not expressly authorized by these Terms of Service. Finally, you may not authorize or assist any third party to do any of the things described in this paragraph.



Restrictions on Access to or Use of SPARK STUDIOS Products
You may access the SPARK STUDIOS Product only through the interfaces and protocols provided or authorized by Spark Studios. You agree 

that you will not access the SPARK STUDIOS Product through unauthorized means, such as unlicensed software clients, and that you will only use the SPARK STUDIOS Product in conjunction with Spark Studios authorized products and components.



No Support by Spark Studios
You understand that your use of the Software is at your own risk and that Spark Studios provides no assistance other than that customarily offered to its clients at its discretion. Spark Studios is under no obligation to provide you with any error corrections, updates, upgrades, bug fixes and/or enhancements of the Software.



No Endorsement
The SPARK STUDIOS Product may contain links to other web sites, resources and advertisers. Spark Studios is not responsible for the availability of these external sites nor does it endorse, or is it responsible for, the aesthetics, appeal, suitability to taste or subjective quality of informational content, advertising, products or other materials made available on or through such external sites. Under no circumstances shall Spark Studios or any of the affiliated providers be held responsible or liable, directly or indirectly, for any loss or damage caused or alleged to have been caused to you in connection with the use of or reliance on any content, goods or services available on such external sites. You should direct any concerns to such external sites' administrator or Webmaster.

Disclaimer of Warranty; Limitation of Liability
DISCLAIMER OF WARRANTIES.YOUR USE OF THE SPARK STUDIOS PRODUCT IS AT YOUR SOLE RISK. THE SPARK STUDIOS PRODUCT IS PROVIDED "AS IS," "WITH ALL FAULTS" AND "AS AVAILABLE" FOR YOUR USE, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, UNLESS SUCH WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. SPECIFICALLY, SPARK STUDIOS, ITS LICENSORS AND ITS VENDORS DISCLAIM ALL IMPLIED WARRANTIES THAT THE SPARK STUDIOS PRODUCT IS MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING. SPARK STUDIOS, ITS LICENSORS AND ITS VENDORS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SPARK STUDIOS PRODUCT WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SPARK STUDIOS PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SPARK STUDIOS PRODUCT WILL BE CORRECTED. SPARK STUDIOS, ITS LICENSORS AND ITS VENDORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SPARK STUDIOS PRODUCT OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. SPARK STUDIOS PROVIDES THE SPARK STUDIOS PRODUCT ON A COMMERCIALLY REASONABLE BASIS AND DOES NOT GUARANTEE THAT USERS WILL BE ABLE TO ACCESS OR USE THE SPARK STUDIOS PRODUCT AT TIMES OR LOCATIONS OF THEIR CHOOSING, OR THAT SPARK STUDIOS WILL HAVE ADEQUATE CAPACITY FOR THE SPARK STUDIOS PRODUCT AS A WHOLE.

LIMITATION OF LIABILITY.

SPARK STUDIOS'S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH SPARK STUDIOS (INCLUDING WITHOUT LIMITATION YOUR USE OF THE SPARK STUDIOS PRODUCT) IS TO DISCONTINUE YOUR USE OF THE SPARK STUDIOS PRODUCT. SPARK STUDIOS, ITS LICENSORS AND ITS VENDORS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGE ARISING FROM YOUR USE OF THE SPARK STUDIOS PRODUCT OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OR REGISTRATION WITH SPARK STUDIOS PRODUCT. THESE EXCLUSIONS FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF SPARK STUDIOS HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. SPARK STUDIOS DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED THROUGH THE SPARK STUDIOS PRODUCT AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.



Indemnification
You agree to defend, indemnify and hold harmless Spark Studios, its licensors, and its vendors, and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys' fees, arising out of your unauthorized use of the SPARK STUDIOS Product. Spark Studios reserves the right, at its own expense and in its sole discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, and only in such event, shall you have no further obligation to provide indemnification for Spark Studios in that matter.



Termination
Spark Studios has the right to terminate your registration or your access to the SPARK STUDIOS Product for any reason, including, without limitation, if it, in its sole discretion, considers your use to be unacceptable, or in the event of any breach by you of the Terms of Service (either directly or through breach of any other terms and conditions or operating rules applicable to you). Spark Studios may, but shall be under no obligation to, provide you a warning prior to termination of your use of the SPARK STUDIOS Product.



Trademarks
All trademarks appearing on the SPARK STUDIOS Product are the intellectual property of their respective owners, including, without limitation, Spark Studios and Macromedia, Inc.



Electronic Delivery Policy
Spark Studios, as an online business, transacts with its users electronically. WHEN YOU SIGN UP FOR ANY SPARK STUDIOS PRODUCT, YOU CONSENT TO RECEIVE ELECTRONICALLY FROM SPARK STUDIOS ANY PRIVACY OR OTHER NOTICES, AGREEMENTS, DISCLOSURES, REPORTS, 

DOCUMENTS, COMMUNICATIONS, OR OTHER RECORDS (COLLECTIVELY, "NOTICES"). You agree that Spark Studios generally can send you electronic Notices in either or both of the following ways: (1) to the e-mail address that you provided to Spark Studios during registration or (2) Spark Studios may post Notices on a welcoming screen or top page of the relevant SPARK STUDIOS Product. You can retrieve an electronic copy and a printable version of the Terms of Service by clicking on the "Terms of Service" link on the home page of SPARK STUDIOS.com. The delivery of any Notice from Spark Studios is effective when sent by Spark Studios, regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. Your only method of withdrawing consent to receive Notices electronically is to terminate any services or other products provided under these Terms of Service.



Miscellaneous
A. The provisions of these Terms of Service addressing disclaimers of representations and warranties, limitation of liability, indemnity obligations, intellectual property and governing law shall survive the termination of these Terms of Service and your registration for the SPARK STUDIOS Product.

B. These Terms of Service and any operating rules for any areas of functionality of the SPARK STUDIOS Product established by Spark Studios constitute the entire agreement between Spark Studios and you regarding the subject matter of these Terms of Service, and supersede all previous written or oral agreements relating to your use of the SPARK STUDIOS Product. In the event of any inconsistency between these Terms of Service and any such other terms of use or operating rules of a specific SPARK STUDIOS Product, these Terms of Service will supersede such other terms of service or operating rules. The Terms of Service shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules. You expressly agree that the exclusive jurisdiction for any claim or dispute under the Terms of Service and or your use of the SPARK STUDIOS Products resides in the courts located in the State of New York, and you further expressly agree to submit to the personal jurisdiction of such courts for the purpose of litigating any such claim or action. The foregoing provision may not apply to you depending on the laws of your jurisdiction. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import.