THIS END USER LICENSE AGREEMENT ("AGREEMENT") IS ENTERED INTO BETWEEN DEFENX SA, A COMPANY SET UP UNDER THE SWISS LAW, WITH REGISTERED OFFICE IN SWITZERLAND, 6828 BALERNA, VIA CASLACCIO 4, ("DEFENX") AND USER ("USER"). IT IS IMPORTANT USER CAREFULLY READ AND UNDERSTAND THE AGREEMENT. BY CLICKING ON THE BUTTON «I ACCEPT», «ACCEPT AND INSTALL»,«START » OR THE CORRESPONDING BUTTON, OR BY INSTALLING THE SOFTWARE, USER AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF USER DO NOT AGREE WITH ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND DO NOT WISH TO BE BOUND, PLEASE CLICK THE «I DO NOT ACCEPT» «CANCEL» OR THE CORRESPONDING BUTTON. IF USER DO NOT ACCEPT THIS AGREEMENT, USER WILL NOT BE ABLE TO ACCESS, DOWNLOAD, OR USE THE SOFTWARE AND THE SERVICES SUPPLIED BY DEFENX. DEFENX IS ENTITLED AT ITS SOLE DISCRETION TO AMEND ANY OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. ANY CHANGES OF THIS AGREEMENT, IF ANY, WILL BE EFFECTIVE UPON POSTING AT THE WEBSITE HTTP://WWW.DEFENX.COM.
For the purposes of this Agreement, the following terms shall have the following meanings:
2.1 Subject to the terms and conditions of this Agreement, DEFENX hereby grants User a non-exclusive, non-transferable, non-sublicensable, limited right and license, during the Term, to access and use the Software, and any related service, according to the conditions specified at the time of the purchase and/or in the Order Confirmation and/or in the Documentation, for the number of devices indicated at the time of the purchase and/or in the Order Confirmation. In order to use the Software is necessary to register a User account and accept this agreement.
2.2 If User have downloaded and/or installed a demo version of the Software, User may use the software only for demonstration purposes and only during the evaluation period starting from the installation of the demo version. It is strictly prohibited to use the Software for any other purposes or after the expiration of the evaluation period.
2.3 User hereby acknowledge and agree that User shall use the Software in accordance with all applicable laws, rules and regulations. Except as expressly provided herein, User shall not, and shall not permit any third party to, without limitation:
3.1 During the Term, DEFENX may provide User with Updates as they are made generally available by DEFENX without User’s separate permission or consent. AVG may stop providing support for the Software until User have accepted and installed all Updates.
3.2 User acknowledge that, to the extend DEFENX licenses some or all of the Software from third suppliers ("Suppliers"), such Suppliers, and not DEFENX, are responsible for creating Updates, if any, and making them available for installation or distribution.
3.3 User acknowledge and agree that DEFENX may provide Updates to User remotely, including without limitation, by accessing this computer in which User store the Software. User hereby grant DEFENX User express consent to provide Updates to User by any and all means.
3.4 Any Update provided or made available by DEFENX hereunder shall be deemed part of the Software and shall be subject to the terms and conditions of this Agreement.
3.5 DEFENX may provide to the User, without assuming any duty or obligation, the following support services during the period specified in the License File Key, which in any case cannot exceed the duration of the Contract:
4.1 User is not granted any other right on the Software besides the non-exclusive limited right of use referred to in art. 2.1.
4.2 DEFENX reserves all Intellectual Property Rights on the whole Software and its parts (included but not limited to any copy or derivative work of the Software, its parts and any updates) as well as Trademarks and rights on documents. This Agreement does not grant the User any rights to the intellectual property, including any Trademarks or Service marks. This Agreement does not grant User any right on the Software source code.
4.3 User acknowledge that the Agreement only provides User with a right of limited use under the terms and condition of this Agreement
4.4 User agree to take any action reasonably requested by DEFENX to evidence, maintain, enforce or defend the foregoing rights. User shall not take any action to jeopardize, encumber, limit or interfere in any manner with DEFENX ownership and rights with respect to the Software, or any derivative work or Update thereof or thereto. User shall have only those rights in and to the Software and any derivative work or Update thereto as are expressly granted to User under this Agreement
5.1 User acknowledge that, in the course of using the Software and exercising rights under this Agreement, User may obtain confidential information relating to the Software, the Service or DEFENX and its Suppliers or other parties ("Confidential Information"). Such Confidential Information shall, as between User and DEFENX, belong solely to DEFENX and shall include, without limitation, the Software (including any and all derivative works and Updates), the existence of and terms of this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, formulas, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and functional specifications, product requirements, problem reports, performance information, documents, and other technical, business, product, marketing, third party customers, and financial information, plans and data.
5.2 User hereby acknowledge and agree that the Confidential Information constitutes and contains valuable proprietary information and trade secrets of DEFENX, and embodies substantial creative efforts and confidential information, ideas, and expressions. Accordingly, User agree: a) to protect the Confidential Information from unauthorized dissemination and use; b) to use the Confidential Information only for the performance of User obligations and in connection with the exercise of User rights hereunder; c) not to disclose or otherwise provide to any third party, without the prior written consent of DEFENX, any Confidential Information or any part or parts thereof; d) to undertake whatever action is necessary to prevent or remedy (or authorize DEFENX to do so in User name) any breach of User confidentiality obligations set forth herein; e) not to remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Software, or on any other Confidential Information provided to User by DEFENX; and f) not to develop any other materials, products, or services containing any of the concepts or ideas contained in the Software or any other Confidential Information.
5.3 The foregoing restrictions pertaining to the Confidential Information shall not apply with respect to any Confidential Information that: a) was or becomes publicly known through no fault of User; b) was known by User before receipt from DEFENX, as evidenced by User contemporaneous written records, c) becomes known to User without confidential or proprietary restriction from a source other than DEFENX that does not owe a duty of confidentiality to DEFENX with respect to such Confidential Information; or d) is independently developed by User without the use of the Confidential Information. In addition, User may use or disclose Confidential Information to the extent i) expressly approved by DEFENX in writing, and ii) User are legally compelled to disclose such Confidential Information; provided, however, prior to any such compelled disclosure User shall cooperate fully with DEFENX in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information.
6.1 THE SOFTWARE IS PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND AS TO ITS USE OR PERFORMANCE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM THE EXTENT TO WHICH CANNOT BE EXCLUDED OR LIMITATED BY APPLICABLE LAW, DEFENX AND/OR ITS AFFILIATES, PARTNERS, LICENSORS, SUPPLIERS, AGENTS AND ANY INDIVIDUALS RELATED TO THE COMPANY,DISCLAIM ALL WARRANTIES, CONDITION, REPRESENTATION OR TERM (EXPRESS OR IMPLIED, WHETHER BY STATUTE,COMMON LAW,CUSTOM,USAGE OR OTHERWISE) AS TO ANY MATTER, INCLUDING, WITHOUT LIMITATION, NONINFRINGMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION OR APPLICABILITY FOR A PARTICULAR PURPOSE. USER ASSUMES ALLA FAULTS, AND THE ENTIRE RISK AS TO PERFORMANCE AND RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE USER INTENDED RESULTS, AND THE INSTALLATION AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING PROVISIONS, DEFENX AND ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS, PARTNERS AND AGENTS MAKE NO REPRESANTATION AND GIVE NO WARRANTY THAT USER USE OF THE SOFTWARE WILL BE ERROR FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET ANY OR ALL OF THE USER REQUIREMENTS WHETHER OR NOT DISCLOSED TO DEFENX, AND/OR ITS AFFILIATES, PARTNERS, LICENSORS, SUPPLIERS, AGENTS AND ANY INDIVIDUALS RELATED TO THE COMPANY.
6.2 TO THE MAXIMUM AMOUNT PERMITTED BY THE LAW, IN NO EVENT, SHALL DEFENX OR ITS AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS, SPONSORS OR PARTNERS, BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR LOSS OF PRIVACY, FOR CORRUPTION, DAMAGE AND LOSS OF DATA OR PROGRAMS, FOR FAILURE TO MEET ANY DUTY INCLUDING ANY STATUTORY DUTY, DUTY OF GOOD FAITH OR DUTY OF REASONABLE CARE, FOR NEGLIGENCE, FOR ECONOMIC LOSS, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SOFTWARE, OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, OR ARISING OUT OF ANY BREACH OF CONTRACT OR ANY TORT (INCLUDING NEGLIGENCE, MISREPRESENTATION, ANY STRICT LIABILITY OBLIGATION OR DUTY) OR ANY BREACH OF STATUTORY DUTY, OR ANY BREACH OF WARRANTY OF DEFENX AND/OR ITS AFFILIATES, PARTNERS, LICENSORS, SUPPLIERS, AGENTS AND ANY INDIVIDUALS RELATED TO DEFENX, EVEN IF THESE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. USER AGREE THAT IN THE EVENT DEFENX AND/OR ITS AFFILIATES, PARTNERS, LICENSORS, SUPPLIERS, AGENTS AND ANY INDIVIDUALS RELATED TO DEFENX ARE FOUND LIABLE, THEIR LIABILITY SHALL BE LIMITED BY THE COSTS OF THE SOFTWARE. IN NO CASE SHALL THE LIABILITY OF THE PREVIOUS SUBJECTS, EXCEED THE FEES PAID FOR THE SOFTWARE TO DEFENX OR THE ITS PARTNERS. THAT LIMITATIONS, ABOUT THE POTENTIAL LIABILITY OF DEFENX, HAVE BEEN CONSIDERED FUNDAMENTAL CONDITIONS FOR THE DETERMINATION OF THE COST OF THE SOFTWARE LICENSE.
6.3 DEFENX, in addition, shall not be liable for the cancellation, theft, destruction, alteration, accidental distribution, unauthorized access to data, information or contents transferred, received or saved in User system, regardless the cause of the event.
6.4 Without limiting the foregoing, DEFENX shall have no obligations, responsibilities and/or liabilities if any nonconformance or failure of, or error in, the Software is caused by: a) use of any attachment, feature, hardware, software or device in connection with the Software; b) transportation, neglect or misuse of the Software or any use of the Software that is not in accordance with this Agreement and/or the Documentation; c) alteration, modification, or enhancement of the Software; or d) failure to provide a suitable installation or use environment for all or any part of the Software.
User hereby agree to indemnify, defend, and hold DEFENX, our affiliates, licensors, suppliers, advertisers, sponsors and partners, and our and their directors, officers, employees, consultants, agents and other representatives, harmless from and against, any claim based upon:
8.1 The licence referred to in this Agreement starts from the moment User agrees to the contract as above indicated or installs the Software, for the duration indicated at the time of purchase and/or in the Order Confirmation and/or in the Documentation and/or in the website www.defenx.com at the description page of Software, excluded the Software evaluation versions as referred to in art. 2.2, whose duration is indicated at the time of purchase and/or in the website www.defenx.com, and subject in any case to its termination and/or withdrawal accordingly to this article.
8.2 DEFENX may terminate this Agreement in the event that User fails to comply with the terms and conditions contained herein or the terms and conditions contained in the Terms and Conditions. Without limiting the foregoing, DEFENX reserves the right immediately to terminate this Agreement, and/or User use of the Software or any portion thereof, at any time and for any reason, with or without cause, without damages or compensation for termination, except for the reimbursement of the price for the period of not using the service only in the case User subscribed, provided that DEFENX is not willing to deliver to the User, directly or indirectly, a similar service.
8.3 User may terminate this Agreement by following the instructions for terminating User account issued on the website www.defenx.com. Any and all individual user status, data or accomplishments once accumulated and stored either during or after the closed-beta test period shall be deemed transient in their nature, and DEFENX shall have no obligation or responsibility whatsoever to restore or recover such status, data or accomplishments thereafter.
8.4 DEFENX reserves the right to modify at any time, at its sole discretion, the terms and conditions contained in the Agreement. Any changes will be communicated by email and if User disagree User may withdraw from the contract by e-mail no later than 15 days after receiving the notice. Otherwise, the relationship will continue and the changes will become effective starting from the sending of the email by DEFENX.
8.5 Upon expiration or termination of this Agreement for any reason, all rights and licenses granted to User hereunder as well as the Software related services, if provided, shall immediately terminate. Upon termination of this Agreement, User shall, at User sole expense, return to DEFENX (or destroy, at DEFENX sole election) all Software and Confidential Information (and all copies and extracts thereof) then in User possession or under User control. Termination of this Agreement shall not act as a waiver of any breach of this Agreement and shall not act as a release of User liability for breach of User obligations under this Agreement. DEFENX shall not be liable to User for damages of any kind solely as a result of terminating this Agreement in accordance with its terms. DEFENX's termination of this Agreement shall be without prejudice to any other right or remedy that it may have at law, and shall not relieve User of breaches occurring prior to the effective date of such termination. The provisions of Sections 1 ("Definitions"), 2.2 ("Restrictions"), 4 ("Proprietary Rights"), 5 ("Confidential Information"), 6 ("Limitation of Liability"), 7 ("Indemnification"), 8.3 ("Effect of Termination") and 9 ("General Provisions"), shall survive any termination of this Agreement.
9.1 This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law, or otherwise, by User without the prior written consent of DEFENX. DEFENX may assign, license, delegate or otherwise transfer its rights or obligations hereunder to any third party without restriction.
9.3 This Agreement is governed by and constructed in accordance to the Swiss laws, with the exclusion of the conflict of laws rules. The Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Any disputes arising from this Agreement shall be submitted to the jurisdiction of the Court of Lugano, Switzerland, unless User are entitled to choose another jurisdiction in virtue of provisions that cannot be contractually waived, in particular according to EU Regulations n. 1215/2012 and n. 593/2008 in matters relating to contracts concluded by the consumers.
9.4 The waiver by either Party of a breach of or a default under any provision of this Agreement, shall be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
9.5 If the application of any provision of this Agreement to any particular facts or circumstances shall be held to be invalid or unenforceable by a court of competent jurisdiction, then a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby, and b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable.
9.6 Without prejudice to the limitation of liability as stated in art. 6, neither Party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, acts of a public enemy, error in the coding of electronic files, Internet or other network "brownouts" or failures, power failures, novelty of product manufacture or other unanticipated product development problems, and acts of civil and military authorities.
9.7 User shall abide by all applicable export laws and regulations in User use of the Software.
9.8 The captions and Section and paragraph headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.
9.9 This contract constitutes the entire Agreement between the Parties concerning the subject matter hereof, and supersede a) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the Parties relating to the subject matter of this Agreement; and b) all past courses of dealing and industry custom.
9.10 This Agreement may not be amended, except by the mutual written agreement of the Parties.
10.1 According to dispositions concerning consumer protection (among which EU Reg. 1215/2012 and 593/2008), in case any provision contained in the Agreement is not applicable to User, as an individual consumer, the remaining dispositions shall still be applicable.
10.2 As an individual consumer, User may withdraw from the contract within 14 days starting from the purchase of the license (if purchased during or after the evaluation period as stated in art. 2.2), by sending a written communication by email to firstname.lastname@example.org or to Defenx, via Caslaccio 4, 6828 Balerna (Switzerland), Fax 0041 91 99 32 304
10.3 In the event of withdrawal upon the exercise of the rights of the consumer as described in art. 10.2, User will be refunded for payments made through a bank transfer (User shall promptly communicate the bank account details where to obtain the refund, if due), in any case no later than 14 days from the date of receipt the withdrawal communication, except in the case User has expressly requested the beginning of the performance during the withdrawal period, or in the event that he has waived the right to withdraw.