Terms and Conditions

SmartDeals Extension

Terms and Conditions

These Terms and Conditions for a SmartDeals Extension constitute a binding, contractual agreement (“Agreement”) between you and SmartDeals (“SmartDeals”). This Agreement applies solely to your use of the software, updates, plug-ins and services associated with the application with which this Agreement is provided (the “Application”). By accepting this Agreement or by installing or using the Application, you are indicating your acceptance and agreeing to all the terms and conditions of this Agreement. If you do not accept and agree to the following terms and conditions, you must not use or install the Application.

SmartDeals may change any of the terms and conditions contained in this Agreement at any time in its sole discretion. Notice of material changes to this Agreement will be posted when they become effective. You are responsible for reviewing the notice and any applicable changes. You agree that your continued use of the Application following any changes to this Agreement and after the changes take effect will constitute your acceptance of such changes. If you do not agree to future changes to this Agreement, stop using the Application after the effective date of such changes and uninstall the Application.

1. LICENSE. Provided that you comply with the terms of this Agreement, SmartDeals grants you a personal, limited, non-exclusive and non-transferable license to install and use an Application on a single computer, solely in object code format and solely for personal and non-commercial purposes. This license does not entitle you to receive from SmartDeals hard-copy documentation, support, telephone assistance, or enhancements or updates to the Application, though we may provide any of the foregoing in our sole discretion.

2. USE OF APPLICATIONS. SmartDeals cannot guarantee the completeness or accuracy of the websites or URLs to which an Application links or refers. As Application processes are largely automatic, SmartDeals does not screen the websites included or linked to or from the Application, and these other websites are operated by persons over whom SmartDeals exercises no control. As a result, SmartDeals assumes no responsibility for the content of any website or URL to which an Application links or refers and is not responsible for errors or omissions or for offensive or objectionable content contained on any website or URL to which an Application links or refers.

3. PRIVACY.

1. Our Applications. Our Applications collect certain data about your devices (including your hardware profiles, cookie text files, browser extensions, device IDs and IP Addresses), your browser and toolbar searches and search results, websites and web pages you visit and their content, and your clicks and interactions with websites, web pages and our Applications. We may also collect precise geo-location data. While our Applications are not intended to collect personally identifying information, it is possible for data, such as search queries or page addresses, to contain such information. For details about SmartDeals’ data collection and use practices, see the SmartDeals privacy policy (http://www.smart-deals.com/privacy/). To uninstall an Application, please visit the FAQ/Troubleshooting page.
2. Third Party Applications.  We are not responsible for data collected from third party-branded applications or third party applications, websites, URLs and platform linked to, referred to, or connected with our Applications.  To understand the data collection practices of those third parties, please review their respective privacy policies.

4. RESTRICTIONS. You may not: (a) use, copy, modify, download or transfer an Application or any component of an Application, in whole or in part, except as expressly provided in this Agreement or with SmartDeals’ written consent; (b) reverse engineer, disassemble, decompile, or translate an Application, attempt to derive the source code of an Application, create any derivative work from an Application, or authorize or assist any third party to do any of the foregoing; (c) rent, lease, loan, resell for profit, or distribute an Application, or any part thereof; (d) remove or alter any proprietary notice or legend regarding SmartDeals’ or its licensors’ proprietary rights in an Application; (e) use an Application except in accordance with applicable laws and regulations; (f) use an Application to defraud any third party or to distribute obscene or other unlawful materials or information; (g) use an Application in any way to transmit, directly or indirectly, any unsolicited bulk communications (i.e., spam); (h) block, disable, or otherwise affect any advertising, advertisement banner window, tabs, links to other sites and services, or other features that constitute an integral part of an Application; (i) incorporate, integrate or otherwise include an Application or any portion thereof (including the communications protocols) into any software, program or product that communicates, accesses, or otherwise connects with SmartDeals’ networks or other online services; or (j) use or export an Application outside of the United States.

5. OWNERSHIP. The Applications are the property of SmartDeals and/or its licensors, and SmartDeals and/or its licensors retain all right, title and interest to the Applications, including any intellectual property rights regarding trademarks, service marks and trade secrets, as well as any rights in copyrighted and/or patented materials provided to you as part of the Applications. Except for the limited license granted to you in this Agreement, you obtain no rights to the Applications, and SmartDeals and/or its licensors reserve all rights not expressly granted to you.

6. FEEDBACK. In the event that you provide SmartDeals with any ideas, thoughts, criticisms, suggested improvements or other feedback related to the Applications (collectively “Feedback”), you agree that SmartDeals may use the Feedback to modify the Applications and SmartDeals’ other products and services and that you will not be due any compensation, including any royalty related to the Applications or other product or service that incorporates your Feedback. You grant SmartDeals a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same. This is true whether you provide the Feedback on the Site or through any other method of communication with SmartDeals, unless SmartDeals has entered into a separate agreement with you that provides otherwise.

7. DISCLAIMER. SMARTDEALS PROVIDES THE APPLICATIONS “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE APPLICATIONS RESIDES WITH YOU. SMARTDEALS AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND DATA ACCURACY. SMARTDEALS MAKES NO WARRANTY THAT THE APPLICATIONS WILL MEET YOUR REQUIREMENTS, OR THAT YOUR USE OF IT WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES SMARTDEALS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APPLICATIONS, OR THAT DEFECTS IN THE APPLICATIONS WILL BE CORRECTED. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD AND USE OF THE APPLICATIONS. NO CONTENT, ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SMARTDEALS THROUGH THE APPLICATIONS, ITS WEBSITE, SERVICES, OR OTHERWISE WILL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT.

8. LIMITATION OF LIABILITY. IN NO EVENT SHALL SMARTDEALS OR ANY OF ITS LICENSORS, AGENTS OR REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL OR LOST PROFITS OR LOST OPPORTUNITIES IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO USE THE APPLICATIONS OR THE PERFORMANCE OR NON-PERFORMANCE OF THE APPLICATIONS, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF SMARTDEALS HAS BEEN NOTIFIED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. IN NO EVENT WILL SMARTDEALS’ LIABILITY FOR ANY DAMAGES TO YOU OR ANY THIRD PARTY EVER EXCEED ONE HUNDRED DOLLARS (U.S. $100.00) REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE. 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 AND DISCLAIMERS MAY NOT APPLY TO YOU. TO THE EXTENT THAT SMARTDEALS MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY OR LIMIT LIABILITIES, THE SCOPE AND DURATION OF SUCH WARRANTY AND THE EXTENT OF ITS LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.

9. INDEMNITY. You agree to indemnify, defend, and hold harmless SmartDeals from any suits, losses, claims, demands, liabilities, costs and expenses (including reasonable fees for attorneys) that SmartDeals may sustain or incur from: (a) your use of the Applications; (b) your breach of any of your obligations or any restrictions set forth in this Agreement, or (c) SmartDeals’s enforcement of this Agreement against you.

10. THIRD PARTY OFFERINGS. Third parties may from time to time offer applications or services to access, “plug-in” or interact with an Application. You may only use third-party applications authorized by SmartDeals for use with an Application. Your use of any third-party applications will be at your own risk and subject to the terms and conditions of those third parties. SMARTDEALS MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE THIRD PARTY APPLICATIONS OR SERVICES, AND SMARTDEALS DISCLAIMS ALL LIABILITY RELATED THERETO.

11. NO DUTY TO CORRECT ERRORS. Without limiting the provisions of Section 2 of this Agreement, you acknowledge and agree that SmartDeals has no obligation under this Agreement to correct any defects or errors in an Application furnished to you under this Agreement, regardless of whether you inform SmartDeals of such defects or errors or SmartDeals otherwise is, or becomes aware of, such defects or errors. To the extent SmartDeals provides you with any updates or upgrades to an Application, such updates and upgrades shall be deemed to constitute part of an Application and shall be subject to all terms and provisions set forth in this Agreement, including, without limitation, terms and provisions related to licenses, use restrictions, ownership and distribution of an Application. SmartDeals may provide mandatory updates to an Application with or without notice to you to ensure the continued performance, security and stability of an Application. SmartDeals may also make available other updates to an Application that you will have the option to install.

12. TERMINATION. The Agreement will be in effect as of the date you accept this Agreement, or as of the date you first install or use the Applications, whichever first occurs. This Agreement will terminate immediately without notice to you if you breach any term or condition herein. You shall be entitled to terminate this Agreement without cause at any time by stopping use of the Applications. SmartDeals shall be entitled to terminate this Agreement without cause upon written notice to you. Upon termination, all rights granted to you under this Agreement will immediately cease, you may not thereafter install or use the Applications, and you must delete or destroy all copies of the Applications in your possession. All provisions of this Agreement, except for the license grant in Section 1 above, survive the termination of this Agreement. SmartDeals may take any technical remedies to prevent unsolicited bulk communications from entering, utilizing, or remaining within SmartDeals’ computer or communications networks.

13. GENERAL PROVISIONS. This Agreement is made under and shall be governed by and construed in accordance with the laws of the State of Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. You acknowledge that SmartDeals will have the right to seek an injunction if necessary to prevent a breach of your obligations hereunder. If any provision of this Agreement is held to be unenforceable, that provision will be disregarded for purposes of the dispute or other circumstance giving rise to such finding, and the remaining provisions will remain in full force. In the event that SmartDeals prevails in any proceeding or lawsuit brought by either party in connection with this Agreement, SmartDeals will be entitled to receive its costs, expert witness fees and reasonable attorney’s fees, including costs and fees on appeal. The failure of SmartDeals to require your performance of any provision in this Agreement shall not affect SmartDeals’ full right to require such performance at any time thereafter; nor shall the waiver by SmartDeals of any breach of any provision of this Agreement be taken or held to be a waiver of the provision itself. This Agreement is personal to you, and you may not transfer, assign or delegate your right and/or duties under this Agreement to anyone else. Any attempted assignment or delegation is void. This Agreement, together with the SmartDeals Terms of Service, is the complete and exclusive statement of the agreement between SmartDeals and you, which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement. We will not be held responsible for any delay or failure to comply with our obligations under these conditions if the delay or failure arises from any cause which is beyond our reasonable control. This condition does not affect your statutory rights.

14. GOVERNMENT USERS. Each of the components that constitute an Application and its related documentation is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire an Application and any documentation provided with an Application with only those rights set forth in this Agreement.

15. ELECTRONIC NOTICES. You agree to this Agreement electronically. You authorize SmartDeals to provide you any information and notices regarding the Applications (“Notices”) in electronic form. SmartDeals may provide Notices to you: (a) via e-mail if you have provided a valid email address or (b) by posting the Notice on a website designated by SmartDeals for this purpose. The delivery of any Notice is effective when SmartDeals sends or posts it, regardless of whether you read the Notice or actually receive the delivery. You can withdraw your consent to receive Notices electronically by discontinuing your use of the Applications and terminating this Agreement. As long as you are able to access the internet using the Applications, you will be able to receive electronic Notices from SmartDeals.

16. PERFORMANCE AND USAGE INFORMATION.

1. Technical Information. When installed, an Application may, from time to time, automatically report back information to SmartDeals’ servers related to installation, updates, usage and errors arising in connection with your use of an Application, without notice to you. The primary use of this data is to help diagnose and resolve technical and performance issues in relation to an Application’s compatibility with the latest operating systems.
2. Feature Usage Information. An Application may also provide SmartDeals with anonymous information about use of an Application’s features and buttons. SmartDeals uses this information in the aggregate to determine which features and buttons from the Application are most popular and useful to its users, and to validate the continued existence and usage of an installed Application.
3. ID. Each Application may contain a specific identification number for the purpose of tracking the number of unique instances of an Application in use.
4. Personalization. You may be asked to provide SmartDeals with certain information so that SmartDeals can personalize content presented to you through an Application. For example, you may be asked for your zip code, which could be used to provide you with relevant local weather and/or news reports for the Toolbar, or relevant deals for Smart Deals.

17. TOOLBAR SPECIFIC TERMS. If you are using a SmartDeals’ toolbar Application (“Toolbar”), the following terms apply:

1. SmartDeals may brand or co-brand the Toolbar with a partner, in which case the Toolbar may also be referred to as the “[partner] Toolbar” or the “[partner] Toolbar powered by SmartDeals”.  The Toolbar is designed to be used in conjunction with SmartDeals’ search services, and your use of the Toolbar is also governed by SmartDeals’ Terms of Service (http://www.SmartDeals.com/terms/). Any information you submit through the Toolbar will be handled pursuant to SmartDeals’ privacy policy (http://www.SmartDeals.com/privacy/). In addition to those statements, you should also review the MSN Toolbar Terms of Use (http://help.live.com/help.aspx?project=tou&mkt=en-us) and the Microsoft Online Privacy Statement (http://privacy.microsoft.com/en-us/default.mspx) that apply to Bing.com and Microsoft Corporation.
2. One of the Services we provide is turn-key monetization solutions powered by Bing, Yahoo! and other leading search providers. Through this Service, we enable use of the Zugosearch.com start page, which is generally installed and used through our software products or our partners’ software products. If you want to use our start page, we may need to change the settings on your PC, and you will grant us all necessary rights to change the default setting of your home page on any internet browser then installed on your computer.

18. SMART DEALS SPECIFIC TERMS. If you are using a SmartDeals’ Smart Deals Application (“Smart Deals”), the following terms apply: Smart Deals requires the installation of the Smart Deals Application to operate. Any content contained in the Smart Deals Application is subject to the disclaimers set forth in the Terms of Service, including Section 12. SmartDeals does not own or control any of the Smart Deals partners or their deals, but does use reasonable efforts to ensure the partners are relevant for you and/or your fellow users. Third party partners of SmartDeals may suspend or discontinue participation in the Smart Deals Application at any time, and their content, offers and deals may be removed or discontinued in their or our discretion at any time without advance notice.

19. ARBITRATION AGREEMENT AND JURY TRIAL WAIVER, CLASS ACTION WAIVER, AND FORUM SELECTION CLAUSE.  All controversies, disputes, demands, counts, claims, or causes of action between you and SmartDeals arising out of, under, or related to this Agreement or our privacy practices, shall exclusively be settled through binding arbitration.

1. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law.  The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”).  As modified by this Agreement, and unless agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
2. You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract EXCEPT for matters that may be taken to small claims court.  Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.  You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT.  Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
3. You and SmartDeals must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by you and SmartDeals, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY YOU OR SMARTDEALS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, SmartDeals will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (g) SmartDeals also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (h) the arbitrator shall honor claims of privilege and privacy recognized at law; (i) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either you or SmartDeals shall be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/SmartDeals customer; and (j) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses.
4. Notwithstanding the foregoing, either you or SmartDeals may bring an individual action in small claims court.  In addition, if you are a user outside of the United States, the dispute resolution provision in our privacy policy (if any), and not this arbitration provision, shall apply to any disputes related to privacy.  Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration provision.  Such claims shall be exclusively brought (unless such courts do not have personal jurisdiction in the dispute) in the courts located in Wilmington, Delaware.  Additionally, notwithstanding this arbitration provision, either party may seek emergency equitable relief before such courts in order to maintain the status quo pending the arbitrator’s ruling, and hereby agree to submit to the personal jurisdiction of such courts.  A request for interim measures shall not be deemed a waiver of the right to arbitrate.
5. With the exception of subparts (d) and (e) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein.  If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor SmartDeals shall be entitled to arbitration.  In the event this arbitration provision is held unenforceable by a court, or in the event AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between you and SmartDeals shall be exclusively brought in the state or federal courts specified in subsection “(d)” above.
6. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.

20. TERMS FOR EUROPEAN UNION RESIDENTS: If (a) you are not a United States citizen; (b) you do not reside in the United States; (c) you are not downloading and/or using an Application in the United States; and (d) you are a citizen of a country within the European Union, this Section 19 and the following provisions apply to you, and Section 18 will not apply to you.

1. You and we hereby agree that any dispute or claim arising from this Agreement shall be governed by the laws of the United Kingdom, and the application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree, as we do, to submit to the exclusive jurisdiction of the courts located in London, England without regard to any conflict of law provisions, and the application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
2. Nothing in this Agreement shall exclude or limit our liability for losses which may not be lawfully excluded or limited by applicable law. We will be responsible for any losses you suffer as a result of us breaching these conditions if the losses were reasonably foreseeable to both you and us when you commenced using our Application(s). We will not be responsible for any business loss (including loss of profits, revenue, contracts, anticipated savings, data, goodwill or wasted expenditure) or any other indirect or consequential loss that is not reasonably foreseeable to both you and us when you commenced using the Application(s). We do not limit in any way our liability by law for death or personal injury caused from our negligence or breach of duty or caused by our gross negligence or willful misconduct.

Last updated: November 21. 2011.