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Software End User License Agreement

Software Terms of Service / EULA

MALWARE PROTECTION LIVE

SOFTWARE LICENSE AGREEMENT

 

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE MALWARE PROTECTION LIVE SOFTWARE THAT ACCOMPANIES THIS SOFTWARE LICENSE AGREEMENT OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY, THE "SOFTWARE").

THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT  (THIS "AGREEMENT" or THE "TERMS") GOVERN USE OF THE SOFTWARE.

ARBITRATION AND CLASS ACTION AND JURY WAIVER NOTICE SUMMARY: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT IN SECTIONS 21, YOU AGREE THAT DISPUTES BETWEEN YOU AND MALWARE PROTECTION LIVE WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT OR CLASS-WIDE ARBITRATION, CONSOLIDATION, COURT PROCEEDING, OR JURY TRIAL, ALL AS SET FORTH IN SECTION 21.

MODIFICATION NOTICE SUMMARY: WE HAVE THE RIGHT TO MODIFY THIS AGREEMENT, EFFECTIVE IMMEDIATELY, AT ANY TIME AND WITHOUT NOTICE OTHER THAN POSTING THE MODIFIED AGREEMENT. (Section 9 has more detail.) IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOU SHALL CEASE USING THE SOFTWARE, IF YOU DO NOT CEASE USING THE SOFTWARE YOU WILL BE CONCLUSIVELY DEEMED TO HAVE AGREED TO AND ACCEPTED THE MODIFICATION(S).

1. Malware Protection Live 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 or by downloading, installing, or using the Software (1) you represent and warrant that you are thirteen (13) years of age or older, and that if you are under 18 years of age, you possess legal and guardian consent to use the Malware Protection Live Site or Services or Software and Services, and that the person entering into this Agreement on behalf of a child between the ages of 13 and 18 years old is at the parent or legal guardian of such child, (2) that you have not been previously suspended or removed from access to or use of the Malware Protection Live Site or Services or Software, (3)  that you are fully able and competent to enter into and you understand the Agreement, and (4) you accept and agree to be bound by all of the terms of the Agreement. The term "you" or "your" (whether lowercase, uppercase, or initial caps) includes any of your subsidiaries, affiliates, employees, and parent or legal guardian.

IF YOU ARE USING THE MALWARE PROTECTION LIVE SOFTWARE ON BEHALF OF A COMPANY, ENTITY, OR ORGANIZATION (COLLECTIVELY, A "SUBSCRIBING ORGANIZATION") THEN YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AN AUTHORIZED REPRESENTATIVE OF THAT SUBSCRIBING ORGANIZATION WITH THE AUTHORITY TO BIND SUCH ORGANIZATION TO THE TERMS; (II) HAVE READ THE TERMS; (III) UNDERSTAND THE TERMS, AND (IV) AGREE TO THE TERMS ON BEHALF OF SUCH SUBSCRIBING ORGANIZATION.

If you do not accept all the terms of this Agreement, then Malware Protection Live is unwilling to license the Software to you, and must and will destroy all copies of the Software.

2. Grant of License. 

Conditioned upon your compliance with the terms  conditions, and covenants of this Agreement, Malware Protection Live grants you a non-exclusive and non-transferable license to Execute (as defined herein) a single copy of the Software solely in executable form on a single computer or virtual machine (a "Computer"). You may not transfer the Software to a different user, except that once installed onto a Computer, the Software may be operated by any person directly using the Computer (i.e., not remotely). You may not run the Software on a network, but must install it only on the individual Computer(s) you are licensed for and run it locally on those Computers. For purposes of this Agreement, "Execute" and "Execution" means to load, install, and run the Software locally on a single Computer in order to benefit from its functionality as designed by Malware Protection Live. 

3. Restrictions You may not transfer the Software to a different Computer, including if you uninstall and remove the Software from the first Computer to install it on the other Computer. You must reinstall the Software by re-downloading it through the internet from the legitimate Malware Protection Live Website or through an authorized distributor of Malware Protection Live Software. For avoidance of doubt, you must have a license to the Software for every Computer on which you operate the Software. You may not use on behalf of, or make the functionality of the Software available to, third parties for any purpose, including, but not limited to, providing any computer repair, help desk or troubleshooting service. You may not: (a)  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; (b)  transfer, sublicense, lease, lend, rent or otherwise distribute the Software to any third party; or (c) 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 making it available to a file-sharing service or through any hosting, application services provider, service bureau, software-as-a-service (SaaS) or any other type of services. 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 Malware Protection Live and its licensors. Accordingly, you agree not to disassemble, decompile or reverse engineer the Software, 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.

4. 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 Malware Protection Live retains ownership of the Software itself and any related data or databases used by Malware Protection Live 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. Malware Protection Live reserves all rights in the Software and Database not expressly granted to you in this Agreement.

5. Updates. From time to time, Malware Protection Live may, but has no obligation to, provide updates to the Software. You are advised to update the Software regularly. Malware Protection Live may update the Software automatically, by default, without any additional action by or notice to you. Nothing in this Agreement entitles you to receive any support, maintenance, updates, upgrades, content or new versions of the Software. Malware Protection Live reserves the right to designate any updates, additional content or features as requiring separate payment or purchase of a separate subscription at any time. Malware Protection Live specifically reserves the right to cease providing, updating, or maintaining the Software or Database at any time in its sole and unfettered discretion. If you have entered into a separate maintenance and support or similar agreement with Malware Protection Live, then Malware Protection Live will provide Software maintenance and support in accordance with the terms of that agreement, not this Agreement.

6. Term. 
(a) Your license will continue until terminated in accordance with this Agreement. Malware Protection Live may terminate your license at any time at its sole and unfettered discretion. 

(b) Termination Rights. You may terminate the license at any time by destroying all copies of the Software in your possession or control. The license granted under this Agreement will automatically terminate, with or without notice from Malware Protection Live, if you breach any term of this Agreement. You acknowledge that upon expiration or termination of your license, the Software and any license key may automatically de-activate and you may no longer be able to access and use the Software. If you assert any copyright or patents against us or any of our other customers based on use of the Software, your license to the Software ends automatically. 

(c) Effects of Termination. The provisions of these Terms, which by their nature should survive the termination or expiration of these Terms, will survive such termination or expiration. Sections 2, 4(e), 5, 6, 8, 11 and 12 of this Agreement will survive any termination or expiration of this Agreement. Upon termination or expiration of this Agreement, your rights to use the Software cease.

 

7. Certain Rights You Grant To Malware Protection Live

By installing the Software on your computer, you obviously expressly authorize and request that the Software perform its intended functions, including:

a) scanning your Computer to detect, flag, block, remove, uninstall, or overwrite software or applications that you have installed or are attempting to install (or that are attempting to install themselves) that Malware Protection Live identifies, broadly,  as malicious, in certain circumstances automatically and without notice to you. 

b) collect and use information in accordance with Our Privacy Policy, which is available here http://www.malwareprotectionlive.com/legal/softwarepp which Privacy Policy, as amended from time to time (and we point out that we may respond to or comply with subpoenas, court orders, or legal process, or to establish or exercise our legal rights or defend against legal claims, including by providing "documents" and information, including that which might identify You, and where We believe it is necessary to share information in order to investigate, prevent, or take action regarding suspected illegal activities, fraud, situations involving potential threats to the physical safety of any person, violations of our Terms, or as may otherwise be required by law or regulation)

c) start the Software automatically when you start your computer, and run the Software continuously while your computer is turned on;

d) block and disable  attempts by software that attempts to modify, overwrite, supersede, uninstall or otherwise interfere with the operation of the Software, though you may intentionally and manually stop or uninstall the Software;

e) communicate with Malware Protection Live servers from time to time to check for available software updates including bug fixes, patches, enhanced functions and new versions (collectively, "Updates"). By installing the Software, you agree to automatically request and receive Updates.

8. Privacy Policy. By entering into this Agreement you agree to the terms of Malware Protection Live's privacy policy, which may be available at http://www.malwareprotectionlive.com/legal/softwarepp (the "Privacy Policy"). More information concerning what data is collected and used by Malware Protection Live and how it is used is available in the Privacy Policy. Without limiting the Privacy Policy, and possibly in addition to what is provided for in the Privacy Policy, you agree that Malware Protection Live may track certain data it obtains from your Computer including data about any malicious software or other threats flagged by the Software, data about your license, data about what version of the Software you are using, what operating conditions it runs under, data concerning your geographic location, data about software (or apps) you have installed or attempted to install and the frequency of their use, and data about software that attempts to or does modify, overwrite, supersede, uninstall or otherwise interfere with the operation of the Software. This information is collected and used for the purpose of tracking malicious software and other security threats and evaluating and improving the Software and Malware Protection Live's products and services. In the event that any user who operates the Software as permitted under this Agreement (including, if you are a business customer, your employees or contractors) makes a complaint or claim based on the tracking or collection of data in accordance with this Agreement, you agree that you are solely responsible for addressing any such complaints or claims. Notwithstanding anything to the contrary in the Privacy Policy, We, Our affiliates, or agents, may contact You, including by telephone or email (if you provide us with such information), including after this Agreement (the Terms) expires or is terminated, and Your agreement to the Terms constitutes Your request that We contact and communicate with You, including by traditional mail, private courier, telephone (land and mobile), email, texts, through social media including (but not limited to) Facebook, Twitter, Google+, YouTube, Vimeo, and various blogs.

We may report to law enforcement authorities any actions that We believe may be illegal, and any reports We receive of such conduct. When we believe we are legally required to do so or at Our discretion, We may cooperate with law enforcement agencies, regulators, or parties to a civil action in any investigation or requests for information, including of alleged illegal activity related to Us or the Software or on the Internet, and may disclose information that We have about You.

Some or all of our Software business affiliates or partners may have their own privacy policies, and You agree with and to those in connection with those Software and business affiliates or partners, however, in relation to Us and the Software only if there is any conflict between Our Privacy Policy which would give You greater rights the provisions of these Terms and Our Privacy Policy will govern.

9. MODIFICATION OF TERMS

We may make changes, modifications, and amendments to the Terms at any time.  Because of the rapidly evolving nature of the Internet, computers, mobile technologies, and other technologies, in our attempts to make our user experience better, and for other aesthetic and business reasons, We may change, update, amend, and modify the Terms from time to time. The latest Terms may be posted or be available through http://www.malwareprotectionlive.com/legal/softwaretos or the Software, and You agree that You should always review them prior to using the Software so that You may always be aware of what has changed, if anything. If any modification is unacceptable to You, You will cease using and uninstall the Software right away. If You do not cease using and uninstall the Software You will be conclusively deemed to have accepted the modifications, change(s) and amendments. Except as stated elsewhere, all amended Terms will automatically be effective as soon as they are initially posted by Us, except if We state in writing that We are giving advance notice of any amended term to be effective on a date in the future. You agree to check where this Agreement and this modified Agreement is available periodically for changes. Except as posted by Us, including to http://www.malwareprotectionlive.com/legal/softwaretos, the Terms will not be otherwise amended, and no terms will be waived by Us, except in a writing, hand signed by pen on paper  by You and an authorized representative of Ours. For purposes of these Terms and this provision, a "writing" does not include an email message, text, chat, or the like, sent from any device existing now or later developed and a signature does not include an electronic signature.

We are not obligated to provide notice of modifications or amendment to the Terms by way of any method other than the making available or posting of the amended Terms on http://www.malwareprotectionlive.com/legal/softwaretos, or on or through the Software or any Malware Protection Live  Platform (any means of accessing the Malware Protection Live website, the Terms, or the Software, including mobile devices, smartphones, tablets, apps, readers, tangible content medium (including a DVD, flash drive, or other storage medium), third party social networks, or other devices), and doing so without more is deemed and agreed to be sufficient notice of modifications and amendment(s). We may note on the Agreement available at http://www.malwareprotectionlive.com/legal/softwaretos   or on or through the Software what the effective date of that version of the Terms is, and You agree that You will keep track Yourself of the effective dates of various versions of the Terms, and that We are not required to point out to You changes from version to version of the Terms. You may copy and paste each version of the Terms into a document for your own personal retention, and You may use any variety of tools to "compare" various versions of the Terms (and Privacy Policy).

10. NOTICES

We may provide You with notices, including those regarding changes to the Terms, by email (if you provide us with your email address) or postings on, or through http://www.malwareprotectionlive.com/legal/softwaretos, the Software, or any Malware Protection Live Platform.. You agree that notice posted on or through http://www.malwareprotectionlive.com/legal/softwaretos, the Software, or any Malware Protection Live Platform is deemed given upon the initial posting, even if there is also notice given in any other way.

When You visit http://www.malwareprotectionlive.com/legal/softwaretos or send Us e-mails, You are communicating with Us electronically. You consent to receive communications from Us electronically. We may communicate with You by e-mail, or by posting notices on http://www.malwareprotectionlive.com/legal/softwaretos, the Software, or any Malware Protection Live Platform. You agree that all agreements, notices, disclosures, and other communications that We provide to You electronically satisfy any legal requirement that such communications be in writing.

 

11. Intellectual Property.

Malware Protection Liveª is a  trademark of Malware Protection Live. Other trademarks, names, and logos on or within the Software or a Malware Protection Live site or other Platform are the property of their respective owners. The trademarks, logos, and service marks displayed on or within the Software or a Malware Protection Live site or other Platform (collectively the "Trademarks") are the registered and unregistered trademarks of Malware Protection Live, its licensors, suppliers, and others. The Trademarks owned by Malware Protection Live, whether registered or unregistered, may not be used in connection with any product or service that is not Malware Protection Live's in any manner that may cause confusion with or to consumers or customers, or in any manner that disparages Malware Protection Live or blurs, tarnishes, or dilutes the Trademarks or Malware Protection Live. Nothing contained on or within the Software or a Malware Protection Live site or other Platform, communication, or herein should be construed as granting, by implication, estoppel, waiver, or otherwise, any license or right to use any Trademark without the express written permission of Malware Protection Live, its licensors, suppliers, or the third party owner of any such Trademark. Misuse of any Trademarks is prohibited, and Malware Protection Live may aggressively enforce its intellectual property rights in such Trademarks, including via civil and criminal proceedings. You acknowledge that Malware Protection Live and its partners and affiliates own all rights, title and interest in the Software, and services provided through or in conjunction with the Software, including without limitation all Intellectual Property Rights. "Intellectual Property Rights" means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide. You agree not to modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software or any Platform. You also agree to not remove, obscure, or alter any copyright notice, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software or any Platform.

 

12. PREVENTION OF UNAUTHORIZED USE

Malware Protection Live reserves the right to exercise whatever lawful means it deems necessary to prevent unauthorized use of any Software, Site, Platform, or Service, including, but not limited to, technological barriers, IP mapping, and directly contacting Your Internet Service Provider (ISP) regarding such unauthorized use. Malware Protection Live reserves the right to monitor Your use of any Software, Site, Platform, or Service, to ensure compliance with this Agreement. If Malware Protection Live, or its affiliates, or assignees, in their sole and unfettered discretion, determine that You are not in compliance with this Agreement, Malware Protection Live reserves the right to take such action deemed necessary to resolve this issue.

 

13. Limited Warranty; Disclaimer.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (a) THE LIMITED WARRANTY SET FORTH IN THIS SECTION 13 IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED; AND (b) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION , MALWARE PROTECTION LIVE 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 MALWARE PROTECTION LIVE OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. Malware Protection Live does not warrant that the Software will meet your requirements, that the Software will operate in the combinations 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. Malware Protection Live 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.

14. ADDITIONAL DISCLAIMER OF WARRANTIES AND PROMISSORY ESTOPPEL

YOUR USE OF ANY MALWARE PROTECTION LIVE SITE, PLATFORM, PROGRAM, SOFTWARE, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS IS AT YOUR OWN RISK. MALWARE PROTECTION LIVE IS NOT RESPONSIBLE OR LIABLE FOR ANY FAILURE OF ANY SITE, PLATFORM, SOFTWARE, PROGRAM OR SERVICE (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS) TO OPERATE, FOR ANY ERRORS IN OR IN CONNECTION WITH ANY SITE, PLATFORM, SOFTWARE, OR SERVICE (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS), OR ANY ERRORS (INCLUDING OMISSIONS) IN THE SOFTWARE, SITE OR SERVICES, OR FOR ANY LACK OF ACCESS TO ANY SITE, PLATFORM, SOFTWARE, OR SERVICE (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS). MALWARE PROTECTION LIVE HAS NO LIABILITY FOR ANY ERRORS OR OMISSIONS IN ANY SITE, PLATFORM, SOFTWARE, OR SERVICE, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS, WHETHER PROVIDED BY US OR OUR SUPPLIERS OR LICENSORS (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS).

MALWARE PROTECTION LIVE, FOR ITSELF AND ITS LICENSORS, DISCLAIMS, AND MAKES NO EXPRESS, IMPLIED, OR STATUTORY REPRESENTATIONS, WARRANTIES, OR GUARANTEES IN CONNECTION WITH ANY SOFTWARE, SITE, PLATFORM, OR SERVICE (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS) INCLUDING RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON OR THROUGH ANY SOFTWARE, SITE, PLATFOR, OR SERVICE (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS). UNLESS OTHERWISE EXPLICITLY STATED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH SOFTWARE, SITE,PLATFORM, OR SERVICE, AND ANY INFORMATION OR MATERIAL (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS) CONTAINED OR PRESENTED ON OR THROUGH EACH SOFTWARE, SITE, PLATFORM, OR SERVICE IS PROVIDED TO YOU ON AN "AS IS", "AS AVAILABLE", AND "WHERE IS" BASIS WITH NO WARRANTY OR EXPRESS OR IMPLIED WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. IN NO EVENT WILL MALWARE PROTECTION LIVE, OR ITS AGENTS, OFFICERS, OR ATTORNEYS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE YOUR COMPUTER, YOUR BROWSERS, PROGRAM, ANY SOFTWARES, SITES, PLATFORM, OR SERVICE (OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS), EVEN IF MALWARE PROTECTION LIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

MALWARE PROTECTION LIVE DOES NOT PROVIDE ANY WARRANTIES AGAINST VIRUSES, SPYWARE, OR MALWARE THAT MAY BE INSTALLED ON YOUR COMPUTER [ALTHOUGH WE TRY TO PROTECT AGAINST THAT].

REGARDLESS OF SUPPOSED OR ACTUAL REPRESENTATIONS MADE TO YOU ORALLY OR IN WRITING BY MALWARE PROTECTION LIVE CONCERNING ACTIONS MALWARE PROTECTION LIVE MAY OR WILL TAKE, OR MAY NOT OR WILL NOT TAKE, YOU MAY NOT AND WILL NOT RELY UPON SAME, AND WILL NOT BRING OR PARTICIPATE IN ANY ACTION OR CLAIMS REGARDING SAME, AND YOU WAIVE ALL RIGHTS AND CLAIMS INCLUDING FOR BREACH OR PROMISSORY ESTOPPEL, UNDER LAW AND EQUITY.

 

15. LIMITATION OF LIABILITY AND DAMAGES

15.1 LIMITATION OF LIABILITY

WE WILL NOT BE LIABLE TO YOU FOR ANY DAMAGES RESULTING FROM YOUR ACCESS TO OR USE OF ANY SOFTWARE, PROGRAMS, SERVICES, SITES, PLATFORM, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS. WE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY FAILURE OF PROGRAM, ANY SOFTWARE, SITES, PLATFOR, OR SERVICE TO OPERATE, FOR ANY ERRORS IN OR IN CONNECTION WITH PROGRAM, ANY SOFTWARE, SITE, PLATFORM, SERVICE, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS, OR FOR ANY LACK OF ACCESS TO ANY SOFTWARE, SITE, PLATFORM, SERVICE, OR ANY REFERENCE SITE OR THIRD PARTY SERVICE PROVIDERS OR VENDORS. WE MAY INTERRUPT ANY SOFTWARE, SITE, PLATFORM, OR SERVICE AT ANY TIME TO PERFORM MAINTENANCE, TO ADDRESS SECURITY BREACHES, OR FOR ANY OTHER REASON, OR NO REASON AT ALL, WITH NO LIABILITY TO YOU WHATSOEVER. IN NO EVENT WILL WE BE LIABLE TO YOU FOR ANY INDIRECT, EXTRAORDINARY, EXEMPLARY, PUNITIVE, SPECIAL, RELIANCE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE, ANY DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) HOWEVER ARISING, EVEN IF WE KNOWSOR HAVE BEEN ADVISED THERE IS A POSSIBILITY OF SUCH DAMAGE. THE LIABILITIES LIMITED BY THIS SECTION INCLUDE, WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE.

THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN US AND RECEIVED THROUGH OR ADVERTISED ON ANY SOFTWARE, SITE, PLATFORM, SERVICE, OR RECEIVED THROUGH ANY REFERENCE SITES.

THESE TERMS DO NOT GRANT YOU OR ANY THIRD PARTY NOT IN PRIVITY TO THIS AGREEMENT ANY GREATER OR ADDITIONAL RIGHTS OR REMEDIES AGAINST YOU OR US THAN SUCH THIRD PARTY MIGHT OTHERWISE HAVE ABSENT THESE TERMS. THESE TERMS DO NOT GRANT ANY THIRD PARTY BENEFICIARY RIGHTS, AND SUCH RIGHTS ARE EXPRESSLY DISCLAIMED.

 

15.2 LIMITATION OF DAMAGES

IN NO EVENT WILL MALWARE PROTECTION LIVE OR ITS AFFILIATES', CONTRACTORS', EMPLOYEES', AGENTS', ATTORNEYS', OR THIRD-PARTY PARTNERS', LICENSORS', OR SUPPLIERS' TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, OR YOUR USE OF ANY SOFTWARE, SITE, PLATFORM, SERVICE, OR REFERENCE SITES, OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING OR USING ANY SOFTWARE, SITE, OR SERVICE, DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER. THE LIABILITIES LIMITED BY THIS SECTION INCLUDE, WITHOUT LIMITATION, LIABILITY FOR NEGLIGENCE.

THESE LIMITATIONS OF DAMAGES ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY REFERENCE SITES OR OTHERWISE BY THIRD PARTIES AND RECEIVED THROUGH OR ADVERTISED ON ANY SOFTWARE, SITE, PLATFORM, SERVICE, OR CONTENT, OR RECEIVED THROUGH ANY REFERENCE SITES.

 

15.3 LIMITATIONS BY APPLICABLE LAW

THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THE TERMS APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU RESIDE, IF THE LAWS OF THE JURISDICTION WHERE YOU RESIDE APPLY AT ALL. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IS SUCH A JURISDICTION, SOME OR ALL OF THE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS, THOUGH IT IS OUR POSITION THAT SINCE THE LAWS OF CALIFORNIA GOVERN THIS AGREEMENT THE LAWS OF THE JURISDICTION WHERE YOU RESIDE DO NOT APPLY. YOU AGREE THAT THE FOREGOING DOES NOT GIVE YOU ANY RIGHT TO ASSERT, AND YOU WILL NOT ASSERT, THAT THE LAWS OF THE JURISDICTION WHERE YOU RESIDE APPLY OR THAT THE VENUE FOR ANY SUCH CLAIMS WOUD BE IN SUCH JURISDICTION.

 

15.4 BASIS OF THE BARGAIN

YOU ACKNOWLEDGE AND AGREE THAT WE HAVE OFFERED THE PROGRAM, SOFTWARE, SITES, PLATFORMS, AND SERVICES, SET OUR PRICES AND OTHER CONSIDERATION, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND US, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND US. WE WOULD NOT BE ABLE TO PROVIDE ANY SOFTWARE, SITE, PLATFORM, SERVICE, OR PROGRAM, TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.

 

16. YOUR REMEDIES

YOUR ONLY REMEDY with respect to any breach by Us of any term in these Terms, Our Privacy Policy, violation of any right or law, or dissatisfaction with (i) any Software, Site, Platform, Service, Reference Site, or Third Party Vendor, (ii) any term of these Terms, (iii) any policy or practice of Malware Protection Live, or any Reference Site, or Third Party Vendor in operating any Software, Site, Platform, or Service, is to terminate Your account and discontinue using any and all of the foregoing, including any Software, Site, Platform, Service, Reference Site, or Third Party Vendor.

 

 

17. INDEMNIFICATION & RELEASE

You agree to indemnify, defend, save, and hold harmless Malware Protection Live, its parent and affiliated companies, contractors, employees, agents, attorneys, and its third-party suppliers, licensors, and partners, from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of Your use or misuse of any Software or Malware Protection Live Site or Services, Platform, Service, Content, any violation by You of any term of these Terms, or any breach of the representations, warranties, promises, or covenants made by You herein. Malware Protection Live reserves the right, at Your expense, to assume the exclusive defense and control of any matter for which You are required to indemnify, defend, or hold harmless Malware Protection Live, and You agree to cooperate with Malware Protection Live's defense of these claims. Malware Protection Live will use reasonable efforts to notify You of any such claim, action, or proceeding upon becoming aware of it.

Users are responsible for their acts and omissions and content placed on any Malware Protection Live Platform. In the event that You have a dispute with or claim against one or more Users, You release Malware Protection Live (and our parents, subsidiaries, officers, directors, shareholders, employees, agents, joint ventures, consultants, successors and assigns) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If You are a California resident, You waive California Civil Code 1542, which says: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."

 

18. 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.

 

19. Local Laws; Export Control

Malware Protection Live operates from its headquarters in the United States of America and the Software, Site, Platform, or Service may not be appropriate or available for use in other locations. If You use any Software, Site, Platform, or Service outside the United States of America, You are responsible for following applicable local laws. You agree to comply with all export laws and restrictions and regulations of the United States Department of Commerce or other United States or other sovereign agency or authority, and not to export, or allow the export or re-export of any software, technical data, or any direct product thereof in violation of any such restrictions, laws, or regulations, or unless and until all required licenses and authorizations are obtained with respect to the countries specified in the applicable United States Export Administration Regulations (or any successor supplement or regulations). The transfer of certain technical data and commodities may require a license from an agency of the United States government and/or written assurances by You that You will not export such software, technical data, or commodities to certain foreign countries without prior approval of such agency. Your rights under the Terms are contingent on Your compliance with this and all other provisions.

20. CLAIMS

YOU AND WE AGREE THAT ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR ANY PROGRAM, SOFTWARE, SITE, PLATFORM, OR SERVICE, EXCEPT FOR OUR RIGHTS TO SEEK INDEMNIFICATION, DEFENSE, AND TO BE HELD HARMLESS, MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. If you have a complaint or believe you have a claim that you intend to arbitrate (or litigate if arbitration is found to be inapplicable or is otherwise inapplicable) must and will first send to US, by both certified mail and email, a completed form Notice of Dispute ("Notice"). You may download a form Notice here.The Notice to Malware Protection Live is to be both mailed or otherwise delivered to Malware Protection Live, 13650 Fiddlesticks Blvd, Suite 202-211, Fort Myers FL 33912, and emailed to legal@malwareprotectionlive.com. Malware Protection Live will send any Notice to you to the physical address we have on file associated with your Malware Protection Live account, if we have one, and if not then by email or any other commercially reasonable method (including social media); it is your responsibility to keep your physical address and all other contact information up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.


If you and Malware Protection Live are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Malware Protection Live may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You must and will send a copy to Malware Protection Live at both the following address: Malware Protection Live, 13650 Fiddlesticks Blvd, Suite 202-211, Fort Myers FL 33912, and by email to legal@malwareprotectionlive.com. In the event Malware Protection Live initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your Malware Protection Live account, if we have one, and if not then by email or any other commercially reasonable method (including social media); it is your responsibility to keep your physical address and all other contact information up to date. Any settlement offer made by you or Malware Protection Live shall not be disclosed to the arbitrator.

 

All claims filed or brought contrary to this Section 20 and the Arbitration Agreement in Section 21 shall be considered improperly filed. Should You file a claim contrary to this Section 20 and the Arbitration Agreement in Section 21 Malware Protection Live may recover attorneys' fees and costs up to $1,000.00, provided that Malware Protection Live has notified You in writing of the improperly filed claim, and You have failed to promptly withdraw the claim

 

21. Agreement to Arbitrate

(a) Agreement to Arbitrate:  - Although Section 16 regarding Your remedies governs, for any claim (excluding claims by Malware Protection Live for injunctive or other equitable relief) where the total amount of the award sought is less than $75,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration You and Malware Protection Live 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"). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Malware Protection Live 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 Malware Protection Live 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 21 Arbitration Agreement will be deemed void. Except as provided in the preceding sentence, this Section 21 Arbitration Agreement 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 21 Arbitration Agreement. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section 21 Arbitration Agreement. (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 form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) 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 (7) 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 Malware Protection Live otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $75,000, then the arbitration will be conducted solely on the basis of the documents that you and Malware Protection Live submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $75,000, 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 the "Limitation of Liability and Damages " Section (Section 15) 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. Malware Protection Live 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 unless the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose. (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, Malware Protection Live 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)).

BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND US ARE EACH WAIVING ANY RIGHT TO FILE A LAWSUIT, GO TO COURT, AND THE RIGHT TO A TRIAL BY JUDGE OR JURY, instead electing that claims and disputes shall be resolved by arbitration under this Arbitration Agreement (Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court.) Further, In the event any litigation should arise between You and Us in any state or federal court in a suit to vacate or enforce an arbitration award, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

22. CLASS ACTIONS / CONSOLIDATION

You expressly waive the right and agree not to bring or participate in any class action or joinder or consolidation of claims with respect to any dispute under or relating to this Agreement, including in any arbitration.

23. General. This Agreement will be governed by and construed in accordance with the laws of the State of California, without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. If you are a U.S. resident, the Arbitration Agreement Section 21 applies. If you are a non-U.S. resident, and it is determined that the Arbitration Agreement can not apply to you, you agree that any claims or actions regarding this Agreement may be brought solely in the state of California in federal courts located in the Northern District of California in Santa Clara, and you waive any right to challenge jurisdiction and venue therein. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Malware Protection Live's 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 confirmed facsimile transmission, by overnight delivery service, or by certified mail, 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 Malware Protection Live have executed a separate agreement

24. COMPLAINTS

In accordance with Cal. Civ. Code ¤1789.3, if You are domiciled in California You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

25. Contact Information. If you have any questions regarding this Agreement, you may contact Malware Protection Live at legal@malwareprotectionlive.com

Malware Protection Live – Updated June 7, 2016, effective immediately.

Malware Protection Live Software EULA v1.02