Terms & Conditions
End User License Agreement
PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING, OR USING THE COMPANY SOFTWARE THAT ACCOMPANIES THIS SOFTWARE LICENSE AGREEMENT, THE “SOFTWARE-AS-A-SERVICE” DELIVERY SERVICES (“SAAS SERVICES”) THAT MAY BE USED TO PROVIDE ACCESS TO SUCH SOFTWARE, OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE”).
THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT AND THE COMPANY ORDERING DOCUMENT YOU EXECUTED OR AGREED TO, AND (WHERE APPLICABLE) ANY COMPANY LICENSE KEY INFORMATION, IN EACH CASE GOVERNING YOUR LICENSE TO THE SOFTWARE (COLLECTIVELY, THE “PURCHASE RECEIPT”) (THIS SOFTWARE LICENSE AGREEMENT AND THE PURCHASE RECEIPT COLLECTIVELY, THIS “AGREEMENT”) ARE AN AGREEMENT BETWEEN YOU AND COMPANY AND GOVERN USE OF THE SOFTWARE UNLESS YOU AND COMPANY HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT GOVERNING USE OF THE SOFTWARE.
“COMPANY” MEANS: (A) IF YOU ACQUIRED THE SOFTWARE IN THE UNITED STATES OR CANADA, COMPANY INC., A DELAWARE CORPORATION; OR (B) IF YOU ACQUIRED THE SOFTWARE IN ANY OTHER COUNTRY, COMPANY LIMITED, A COMPANY INCORPORATED IN DELAWARE.
THIS SOFTWARE LICENSE AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IF YOU ARE RESIDENT IN THE U.S. AND A COMPANY FOR HOME CUSTOMER, THESE AFFECT YOUR RIGHTS TO RESOLVE A DISPUTE WITH COMPANY, AND YOU SHOULD READ THEM CAREFULLY. FOR EXAMPLE, EXCEPT IF YOU OPT OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “Agreement to Arbitrate – U.S. Customers” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND COMPANY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING
Company Software is willing to license the Software to you only upon the condition that you accept all the terms contained in this Agreement. By clicking to accept where indicated below or by downloading, installing or using the Software, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “you” and “your” will refer to that company or other legal entity. If you do not accept all the terms of this Agreement, then Company Software is unwilling to license the Software to you and you are prohibited from using it. If you are a Company Software for Home customer and purchased the Software from Company Software directly pursuant to our 60-day money-back guarantee you may be eligible to request cancellation and refund within 60 days of purchase of your new subscription. If you purchased Company Software for Home from other third-party vendors, including retail stores, please contact those vendors directly for more information about their refund policies.
1. License.
(a) Free & Trial Licenses.
If you have obtained a free, trial or evaluation version of the Software from Company Software or from a Company Software authorized reseller, then conditioned upon your compliance with the terms and conditions of this Agreement, Company Software grants you a non-exclusive and non-transferable license to Execute the Software solely in executable form. The foregoing license permits Execution of only such number of copies of the Software, and on such number of devices (including mobile devices), computers or virtual machines (“Devices”), as is expressly permitted by Company Software with respect to your trial with each instance of an operating system on a partitioned or virtualized machine counted as a Device. If no such number of copies or Devices is specified by Company Software, the foregoing license permits Execution of a single copy of the Software on a single Device. Notwithstanding the foregoing, the free, trial, or evaluation version of the Software is not licensed for, and shall not be Executed on, any Device which runs an operating system designed for servers. For purposes of this Agreement, “Execute” and “Execution” means to load, install, and/or run the Software locally on a single Device in order to benefit from its functionality as designed by Company Software.
(b) Paid License.
If you purchased a license to the Software from Company Software or from a Company Software authorized reseller, then upon payment of the associated fees, as and when such fees become due, and conditioned upon your compliance with the terms and conditions of this Agreement, Company Software grants you a non-exclusive and non-transferable license to Execute the number of copies of the Software for which you have paid solely in executable form on the corresponding number of Devices owned or used by you. Furthermore, you may not Execute the Software on any Device(s) running a server operating system unless it is a Company Software server product as reflected in its official product name or detailed in the associated official release notes. For the sake of clarity, to the extent detailed in its release notes, Company Software Breach Remediation (not available as a standalone product) may be executed on a server. You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Software beyond the current license term or any new releases), or dependent on any oral or written public comments made by Company Software regarding future functionality or features.
2. Restrictions.
(a) Company Software for Home – Free & Paid.
If you are a Company Software for Home user (or any other Company Software intended for home use), and whether you have a free or paid license, this Section 2(a) applies. Your license permits you to use the Software solely for your personal, non-commercial purposes; the Software may not be used on any Device that is used in a business or for business purposes. Once Executed on a Device, you may transfer the Software to a different Device, provided that you uninstall and remove the Software from the first Device. You may not combine the Software with any third party script, application, hardware or tools which would cause it to run on an automated or unattended basis. You may not transfer the Software to a different user, except that once installed onto a Device, the Software may be operated by any person directly using the Device (i.e., not remotely), provided that you are responsible for each such person’s operation of the Software. You may make one copy of the Software for back-up or archival purposes, or copy the Software onto the hard disk of your Device and retain the original for back-up or archival purposes. Notwithstanding the second sentence of this Section 2(a), if you have a business with no more than 10 total Devices, you may use the paid version of Company Software for Home Software in your business for business purposes provided that your usage shall be governed by the terms and conditions of this Agreement applicable to Company Software for Business users and not the terms and conditions applicable to Home users. (“Small Business Exception”). If you use the Small Business Exception, references to Company Software for Business shall be read as governing your usage of the Software.
(b) Company Software for Business.
If you are a Company Software for Business user, and you have a trial license, your license permits you to use the Software solely for evaluation purposes, and not for production use, in such event you may only use the trial Company Software downloaded via the business link to remediate up to five Devices for a 30 day period. If you are a Company Software for Business user, and you have a paid license, your license permits you to use the Software solely for your internal business purposes. Other than the limited exception stated in the immediately following sentence, once Executed on a Device, you may not transfer the Software to a different Device, even if you uninstall and remove the Software from the first Device. During each year of your licensed subscription you may transfer Software that has been Executed on a Device to a different Device, provided that each of the following requirements are met: (a) the amount of Devices subject to transfer does not exceed 10% of your licensed Devices for such Software (“Transfer Allowance”); (b) only single transfers are permitted (the transferred Software cannot be transferred to a third Device in the same year); and (c) you have uninstalled and removed the Software from the first Device. Unused amounts of your Transfer Allowance will not carry over to subsequent subscription years. If you are a Company Software for Business customer, and whether you have a free or paid license: (i) you may make a reasonable number of copies of the Software for back-up or archival purposes; (ii) the Software may only be used by your employees and consultants (“Authorized Users”), who have agreed to abide by the terms of this Agreement and who may only use the Software for the purposes of performing their job functions for you; (iii) you are responsible for the use of the Software by your Authorized Users (and their compliance with this Agreement); and (iv) once Executed on a Device, the Software may be operated by any Authorized User using the Device, directly or (where that person is providing support services to you with respect to that Device) via remote connection; provided that each such Device is running an authorized copy of the applicable Software. Other than for the sole purpose of assisting the management and administration of Software on Devices within a network, you may not combine the Software with any third party script, application, hardware or tools which would cause it to run on an automated or unattended basis.
(c) Company Software for Teams.
If you are a Company Software for Teams user, your license shall be governed by the terms and conditions of this Agreement applicable to Company Software for Business users; references to Company Software for Business shall be read as governing your usage of the Software. Notwithstanding anything to the contrary in this Agreement, you are only eligible to use Company Software for Teams if your business has no more than 25 Devices.
(d) Optional Software Utilities, Beta Features and Beta Releases.
From time-to-time, Company Software, at its sole discretion, may make available to you optional Software, including but not limited to utilities for supporting the usage of the Company Software for Home and Company Software for Business Software, beta features that can be enabled within the Software, and beta releases of Software (collectively “Optional Items”). Unless a particular Optional Item includes its own separate and specific terms and conditions, this Agreement shall govern the usage of Optional Items. Conditioned upon your compliance with the terms and conditions of this Agreement, Company Software grants you a non-exclusive and non-transferable license to Execute the Optional Items solely in executable form and solely for your internal business purposes of supporting the Software, and in the case of beta features and releases, for evaluation purposes. Software such as Optional Items are sometimes provided by software providers as preview releases of new features and programs, as well as quick fixes for resolving specific issues. Optional Items are not fully tested by Company Software and may include significant issues. You acknowledge that Optional Items are likely to present risks associated with their use. Company Software strongly recommends that you back up all of your data prior to using such type of software from any source. Notwithstanding anything to the contrary in this Agreement, Optional Items are provided “as is”, and do not carry any warranties or maintenance or support; similarly, in no event shall Company Software be liable for any damage arising from the use of Optional Items.
(e) General.
Except as specifically permitted under Section 2(g) below, You must have a license to the Software for every Device on which you operate the Software. You may run the Software on a network, provided that you have a license to the Software for each: (1) Device that the Software is Executed on; and (2) Device or user instance that can access the Software over that network that is not included in (1). You may not use on behalf of, or make the functionality of the Software available to, third parties for any purpose, such as for providing any computer repair, help desk or troubleshooting service. Except as expressly specified or permitted in this Agreement, you may not: (i) copy (except in the course of loading or installing) or modify the Software, including but not limited to adding new features or otherwise making adaptations that alter the functioning of the Software; (ii) transfer, sublicense, lease, lend, rent or otherwise distribute the Software to any third party; (iii) make the functionality of the Software available to any third party through any means, including but not limited to by uploading the Software to a network or file-sharing service or through any hosting, application services provider, service bureau, SaaS or any other type of services; or (iv) use the Software for any illegal purpose or conduct. You acknowledge and agree that portions of the Software, including but not limited to the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Company Software and its licensors. Accordingly, you agree not to disassemble, decompile or reverse engineer the Software or Database (defined below), in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. You will comply with any additional restrictions contained in your Purchase Receipt or other purchasing documentation.
(f) SaaS Delivery.
For Software provided through SaaS Services, Company Software shall use commercially reasonable efforts to make such SaaS Services available to you, subject to downtime for scheduled or emergency maintenance. You may only use the SaaS Services in connection with your access to the Software and solely for your internal business purposes.
(g) Site License.
Company Software licenses certain Software products on a Site License basis. Where you have a “Site License”, it shall be identified in the product description of the Purchase Receipt. A Site License grants you the ability to execute the Software for your internal use, in accordance with this Agreement., within the band purchased and is not limited to a fixed amount of Devices. Site License pricing is banded with bands determined by employee count. The Parties will reevaluate the Site License band at the end of the Software subscription term.
(h) Prohibited Uses.
While using the Software and/or SaaS Services you agree not to, directly or indirectly, use the Software and/or SaaS Services, or assist others in using the same for: anything unlawful or illegal; violating a third party’s rights, including privacy and property rights, and harassing others; harming, or attempting to harm, others (“Prohibited Uses”). We may suspend your account where we deem it necessary to prevent or terminate any suspected Prohibited Use or violation of law. Such suspension shall not toll or pause your license term from elapsing or entitle you to any refunds.
3. Ownership.
Each copy of the Software is licensed, not sold. For purposes of this Agreement, the terms “purchase,” “sell” and like terms refers to purchase or sale of a license to use the Software and not to a purchase or sale of title to or ownership of any rights or other interests in the Software. You own the media on which the Software is recorded, but you acknowledge and agree that Company Software retains ownership of the Software itself and any related data or databases used by Company Software or the Software (the “Database”), including all intellectual property rights therein. The Software and Database are protected by U.S. copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Software as delivered to you. Company Software reserves all rights in the Software and Database not expressly granted to you in this Agreement.
4. Updates.
From time to time, Company Software may, but has no obligation to, provide updates to the Software. You are advised to update the Software regularly, or to set it to update automatically if that feature is available in your version of the Software. If you are a paying customer with a current subscription purchased from Company Software or a Company Software authorized reseller, we will make available to you the standard updates and maintenance and support that we make generally available at no additional cost to paying subscribers from time to time. Nothing in this Agreement entitles you to receive any support, maintenance, updates, content or new versions of the Software, unless you are a paying customer with a current subscription purchased from Company Software or a Company Software authorized reseller. You understand and agree that your purchase is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company Software regarding future functionality or features. Company Software reserves the right to designate any updates, additional content or features as requiring separate payment or purchase of a separate subscription at any time. Company Software specifically reserves the right to cease providing, updating, maintaining or supporting the Software or Database at any time in its sole discretion, in accordance with the Company Software Lifecycle Policy located at http://xxxxx If you have ordered maintenance and support from Company Software, then Company Software will provide Software maintenance and support in accordance with the terms of the agreement located at https://www.xxxxx.agreement, not this Agreement.
5. Term.
(a) Paid Subscription License Term.
If you have purchased a license to the Software, then the initial term of this Agreement commences on the date specified in the Purchase Receipt or applicable purchasing documentation accompanying the Software (or if no such date is specified, the date you initially Execute a copy of the Software on a Device (regardless of the number of copies of the Software that you are permitted to use in accordance with this Agreement)), and, in each case, continues for the period of time set forth in the Purchase Receipt or applicable purchasing documentation (or, if no such date is specified, for one year).
If you are a Company Software for Business customer, your subscription shall not automatically renew (unless you opt into autorenewal on your Purchase Receipt). Where you opt into autorenewal and later change your mind, you can avoid automatic renewal by providing us with at least thirty (30) days’ written notice (email sufficient) prior to the renewal date.
If you are a Company Software for Home customer, your subscription shall automatically renew (unless you turn off auto-renewal in your MyAccount portal or by contacting Company Software support).
(b) Company Software for Home – Free License Term.
If you have obtained a license to a free version of the Software, then your license will continue until terminated in accordance with this Agreement.
(c) Company Software for Business – Trial License Term.
If you have obtained a trial license to the Software, then your license will continue for such time period as may be specified by Company Software with respect to such trial (or, if no such period is specified, for 30 days). In addition, Company Software may terminate your trial license at any time at its sole discretion.
(d) Termination Rights.
Either party may terminate this Agreement for cause if the other party materially breaches this Agreement and such breach remains uncured after thirty (30) days’ written notice of such breach. Furthermore, the license granted under this Agreement will automatically terminate, with or without notice from Company Software, if you breach any term of this Agreement. If you are a Company Software for Home user, and you have a paid license, if you fail to pay the applicable license fees as specified in the Purchase Receipt or applicable purchasing documentation, your existing license to the Software ends automatically and your license shall automatically convert into a free license; as such, your Software will no longer be eligible to receive automatic updates. If you are a Company Software for Business customer, and you have a paid license, if you fail to pay the applicable license fees as specified in the Purchase Receipt or applicable purchasing documentation, your existing license to the Software ends automatically and you shall, within thirty (30) days after such date, erase from all computers, servers, networks, and other media and hardware all copies of the Software (except to the extent, if any, your retention of a copy is required for regulatory purposes). If you are a Company Software for Business customer, and you have a trial license, your license to the Software ends automatically at the end of the applicable trial period. If you are a Company Software for Business customer, you acknowledge that upon expiration or termination of your license, the Software and any license key may automatically deactivate and you may no longer be able to access and use the Software. If you assert any patents against us or any of our other customers based on use of the Software, your license to the Software ends automatically.
(e) Effect of Termination.
Upon termination or expiration of this Agreement, your rights to use the Software cease. If this Agreement is terminated by you in accordance with the section 5(d) above, Company Software will refund you any prepaid fees covering the remainder of the term of all Purchase Receipts after the effective date of termination. If this Agreement is terminated by Company Software in accordance with the section 5(d) above, you shall pay any unpaid fees covering the remainder of the term of all Purchase Receipts to the extent permitted by applicable law. In no event will termination relieve you of your obligation to pay any fees payable to Company Software for the period prior to the effective date of termination. Sections 3, 5(e), 7, 8, 9, 11(a), 12, 13 and 14 of this Agreement, and any provisions which explicitly state that they shall continue, will survive any termination or expiration of this Agreement.
6. Payment Terms.
The price payable by you is the price stated in the Purchase Receipt or applicable purchasing documentation (or, if no such price is specified, the price set out in our then current standard published price list). Our prices are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). If we issue an invoice to you, all invoices are payable within 30 days of the invoice date unless specified differently in the invoice or purchasing documentation. You are responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made to us, other than any taxes based on Company Software’ net income. All amounts are payable and charged at the beginning of the applicable subscription term. You will not receive a refund for the fees you already paid for your current subscription period.
7. Privacy Policy.
By entering into this Agreement you agree to the terms of Company Software’ privacy policy, which can be found at https://www.xxxx.com/legal/privacy-policy (as may be updated from time to time, the “Privacy Policy”). More information concerning what data is collected and used by Company Software and how it is used is available in the Privacy Policy. Without limiting the Privacy Policy, you agree that Company Software may track certain data it obtains from your Device, including data about any malicious software, exploits or other threats flagged by the Software (including but not limited to potential sources of such threats, such as payload files, file format and recent URL’s visited), data about your license, data about what version of the Software you are using and what operating conditions it runs under and data concerning your geographic location. This information is collected and used for the purpose of tracking malicious software, exploits and other threats, and evaluating and improving Company Software’ products and services. We may share data relating to malicious software, exploits or other threats flagged by the Software with third parties. In the event that any user who operates the Software as permitted under this Agreement (including, if you are a Company Software for Business customer, your Authorized Users) makes a complaint or claim based on the tracking or collection of data in accordance with this Section 7, you agree that you are solely responsible for addressing any such complaints or claims.
8. Limited Warranty; Disclaimer.
Provided that you purchased the Software from Company Software or a Company Software authorized reseller, Company Software warrants that any physical media manufactured by Company Software on which the Software is distributed will be free from defects for a period of 60 days from the date of delivery of the Software to you. Your sole and exclusive remedy, and Company Software’ sole liability, in the event of a breach of the foregoing warranty will be that Company Software will, at its option, replace any defective media returned to Company Software within the warranty period or refund the money you paid for the Software. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (a) THE LIMITED WARRANTY SET FORTH IN THIS SECTION 8 IS EXCLUSIVE AND LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED; AND (b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 8, COMPANY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, INDEMNITIES, OBLIGATIONS, AND OTHER LIABILITIES IN CONNECTION WITH ANY INTEGRATION WITH THE SOFTWARE Company Software does not warrant that the Software will meet your requirements, that the Software will operate in the combinations, on the operating system or in the environments that you may select for Execution, that the operation of the Software will be error-free or uninterrupted, or that all Software errors will be corrected. Company Software specifically disclaims any warranty or representation as to the Software’s ability to eliminate any specific malware threats or the completeness of the Database or protection modules. You are solely responsible for the data, software and other content carried on your Devices and for backing-up your data, software and other content.
9. Limitation of Liability.
COMPANY’ TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AMOUNTS PAID TO COMPANY BY YOU FOR THE APPLICABLE SOFTWARE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
IN NO EVENT WILL COMPANY BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
10. U.S. Government End Users.
The Software is a “commercial item” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Software is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Software will be only those specified in this Agreement.
11. Export and Data Protection Laws.
(a) Export Law.
You agree to comply fully with all U.S. and other applicable export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
(b) Data Protection Laws.
To the extent Company Software processes personal information, as defined by applicable law, (“Personal Data”) of a data subject on behalf of you as a processor as defined by any applicable data protection laws, it shall do so only on documented instructions from you pursuant to this Agreement, to operate Company Software, and as permitted or required by applicable law. In the event Company Software processes Personal Data for purposes other than the above, it shall do so as data controller as defined under applicable data protection laws. By entering into this Agreement, you have instructed Company Software to process your Personal Data in such manner. To the extent mandated by applicable data protection laws, Company Software shall: (1) take appropriate measures to ensure the security of Personal Data processed; (2) ensure that its personnel who process Personal Data are subject to a duty of confidence; (3) ensure that no third party processes any Personal Data received from you except in accordance with applicable data protection laws or with the consent of you as applicable; (4) reasonably assist you with your rights and obligations as data controllers, including assistance with: obligations in connection with data subject access requests and other data subject rights under applicable data protection laws; and controllers’ responsibilities concerning the security of processing and audit requirements; (5) notify you if a security incident has occurred that compromises the privacy, security or confidentiality of your Personal Data, provided that we have your contact information, investigate such security incident and take reasonable steps in mitigating the effects and minimizing any damage resulting from the security incident as required by applicable law; (6) only retain Personal Data after the end of the Agreement if there is a statutory legal basis to do so or for the period specified in the Privacy Policy, subject to applicable data protection laws; and (7) subject to applicable laws, delete Personal Data upon your request unless there is a statutory legal basis to retain it. The terms of the data processing addendum at http://www.malwarebytes.com/legal (“DPA”) are incorporated by reference and shall apply to the extent Company Software receives any Personal Data as defined in the DPA. For the purposes of the E.U. Standard Contractual Clauses, you and your applicable Affiliates are each the data exporter and your acceptance of this Agreement, shall be treated as its execution of the E.U. Standard Contractual Clauses and appendices Company Software shall only use the Personal Information we receive from you for performing the services specified in this Agreement. Personal Data may be sent to facilities hosted outside of the country where you purchased or utilizes the Software. Company Software will comply with the European Economic Area data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area, appropriate transfer mechanisms, where applicable.
12. Agreement to Arbitrate – U.S. Company Software for Home Customers.
(a) Agreement to Arbitrate:
If you are a Company Software for Home customer and acquired the Software as a U.S. resident, you and Company Software agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Software (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Company Software with written notice of your desire to do so by email to legal@companycom within 30 days following the date you first purchase or obtain the Software (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Company Software with an Arbitration Opt-out Notice within the 30 day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Client with an Arbitration Opt-out Notice, will be the state and federal courts located in the Southern District of Florida, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Client with an Arbitration Opt-out Notice, you acknowledge and agree that you and Company Software are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Company Software otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Section will be deemed void. Except as provided in the preceding sentence, this Section will survive any termination of this Agreement.
(b) Arbitration Rules:
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this Section. (The AAA Rules are available at www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
(c) Arbitration Process:
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents). The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
(d) Arbitration Location and Procedure:
Unless you and Company Software otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Company Software submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
(e) Arbitrator’s Decision:
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of Section 9 (“Limitation of Liability”) as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Company Software will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
(f) Fees:
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Company Software will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
13. Feedback; Marketing.
If you provide any ideas, suggestions, or recommendations regarding the Software or the Database (“Feedback”), Company Software will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. By providing Feedback, you grant Company Software a worldwide, perpetual, irrevocable, sublicenseable, fully-paid and royalty-free license to use and exploit in any manner such Feedback. If you are using Company Software in a business or for business purposes, you grant Company Software the right to use your trade name (and the corresponding trademark or logo) on the Company Software website and marketing materials to identify you as a customer.
14. General.
Except as set forth below, each party agrees to the governing laws and the exclusive jurisdiction, without regard to choice or conflicts of law rules, based on your domicile as shown in the table below:
United Sates, Canada or the Americas – the courts located in the State of Florida
Europe, the Middle East or Africa – the courts located in England and Wales
Asia and Oceania – the courts located in Singapore
If you are accepting the Agreement on behalf of a United States federal government entity, then the following applies instead of the paragraph above: the laws of the United States of America, excluding its conflict of laws rules, will apply to any disputes arising out of or related to this Agreement. Solely to the extent permitted by United States Federal law: (i) the laws of the State of Florida (excluding Florida’s conflict of laws rules) will apply in the absence of applicable federal law; and (ii) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE SOFTWARE, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN MIAMI-DADE COUNTY, FLORIDA.
If you are accepting this Agreement on behalf of a United States city, county, or state government entity, then the following applies instead of the paragraph above: the parties agree to remain silent regarding governing law and venue.
The United Nations Convention on Contracts for the International Sale of Goods will not apply.
You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Company Software’ prior written consent, and any attempt by you to do so, without such consent, will be void. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by email (we will email you at the email address you provided us when you initially purchased your license), and in each instance will be deemed given upon receipt. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless you and Company Software have executed a separate agreement. Any terms or conditions contained in your purchase order or other purchasing document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Company Software and will be deemed null. You acknowledge that Company Software is not a Business Associate or subcontractor (as those terms are defined in Health Insurance Portability and Accountability Act commonly referred to as ‘HIPAA’) or a payment card processor and that the Software, SaaS Services, and any services provided may not be HIPAA nor PCI DSS compliant.
15. Audit Rights.
If you are a Company Software for Business or Company Software for Teams user, then during the term of this Agreement and for one (1) year thereafter, you will permit Company Software, or its duly authorized representatives, on reasonable prior notice, to audit your systems and access your account(s) associated with the Software and/or SaaS Services, with respect to all matters related to: (A) the number and type of Devices utilizing the Software and/or SaaS Services, or (B) your compliance with its obligations under this Agreement.
In the event the audit identifies that you are using the Software and/or SaaS Services with a greater number of Devices than the number and type you have ordered and paid for (each referred to as a “Prohibited Device”), then you shall be liable for and pay as liquidated damages an amount equal to (as calculated based on Company Software’ then current list prices): the fees for the Software license and/or SaaS Services for each Prohibited Devices plus any related support services for a term equal to the greater of: (i) the period of time the Prohibited Devices began using the Software and/or SaaS Services, or (ii) twelve (12) months. Additionally, Customer shall be liable for the total reasonable costs of the audit where any Prohibited Devices are discovered. Where the audit confirms that you are in compliance with its obligations under this Agreement, Company Software shall bear the total costs it incurred associated with the audit.
16. Contact Us.
If you have any questions regarding this Agreement, you may contact Company Software at solutions@syncdata.ai. If you wish to send us a legal notice, please start the subject line of your email with “Attention: Legal Department”.