Emsisoft Terms Of Service

These Terms of Service apply to Emsisoft’s software products and online platform, including the associated Emsisoft desktop and mobile applications (collectively, the “Services”), emsisoft.com and other Emsisoft websites (collectively, the “Websites”)

Table of Contents:

Agreement to Terms

By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.

End User License Agreement (EULA)

Please refer to our End User License Agreement (EULA) for the licensing terms of our software products. You acknowledge and agree that your use of the Services is subject to our End User License Agreement (EULA).

Privacy Policy

Please refer to our Privacy Policy for information on how we collect, use and disclose information from our users. You acknowledge and agree that your use of the Services is subject to our Privacy Policy.

Changes to Terms of Service

We may update the Terms at any time, at our sole discretion. If we do so, we’ll let you know either by posting the updated Terms on the Website or through other communications. It’s important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms, you are agreeing to be bound by the updated Terms. If you don’t agree to be bound by the updated Terms, you may not use the Services anymore. Because our Services are evolving over time, we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.

Use of the Services

(a) Eligibility. you may use the Services only if you are 16 years or older and are not barred from using the Services under applicable law.

(b) Registration and your Information. To use certain features of the Services you need to create an Account. You can do this via the Website or we may provide access through your account with certain third-party social networking services such as Google or Facebook (each, an “SNS Account”). If you choose the SNS Account option, we’ll create your Account by extracting from your SNS Account certain personal information such as your name, email address, and other personal information that your privacy settings on the SNS Account permit us to access.

(c) Accuracy of Account Information. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. Failure to do so could result in the suspension or termination of your account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.

(d) Logins. Your login may only be used by one (1) person. A single login shared by multiple people is not permitted. You may create separate logins for as many people as are permitted under the applicable Subscription (as defined below). Emsisoft reserves the right to access any or all of your accounts in order to respond to your requests for technical support.

Subscription

Emsisoft may make certain limited portions of the Services available for free. Emsisoft requires payment of a fee for use of additional Services (or certain portions thereof) that are not available for free on a subscription basis (“Subscription”). Emsisoft may provide portions of the additional Subscription Services without payment for a trial period, but the ability to access those Services will be terminated at the end of the trial period. At any time during the trial and thereafter, you may purchase a Subscription.

(a) General. When you purchase a Subscription (each, a “Transaction”), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction. We may ask you to supply additional information relevant to your Transaction, including your credit card number, the expiration date of your credit card, and your email and postal addresses for billing and notification (“Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information).

(b) Subscriptions. If you purchase a Subscription, you will be charged the applicable Subscription fee (which may be on a monthly or annual basis, depending on the Subscription), plus any applicable taxes, and other charges (“Subscription Fee”), at the beginning of your Subscription and each period thereafter (such period will depend on the Subscription), at the then-current Subscription Fee. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge you each applicable period at the beginning of the next applicable period of your Subscription during the term, using the Payment Information you have provided until you cancel your Subscription. By agreeing to this Agreement and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Emsisoft. Your Subscription continues until canceled by you or we terminate your access to or use of the Services or Subscription in accordance with this Agreement. Prices for the Services, including but not limited to monthly Subscription fees to the Service, are subject to change upon 30 days’ notice from us. Such notice may be provided at any time.

(c) Modifying Subscriptions. Upon upgrading or downgrading in plan level, you will be credited pro rata for the time remaining in the current billing cycle. However, you will not be refunded for any Services already rendered during the then-current subscription period. Downgrading your Subscription plan may cause the loss of features, or capacity of your Account. Emsisoft does not accept any liability for such loss.

(d) Cancelling Subscription. You can cancel a new subscription within 30 days from the initial transaction date and you receive a full refund. If something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we’ll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellations will be effective at the end of the then-current Subscription period. To cancel, you can use the cancellation web links provided in your purchase confirmation letter, or send an email to [email protected]. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then-current subscription period and will then terminate without further charges; however, you will not receive a refund for any unused Services.

Content and Content Rights

For purposes of these Terms: (i) “Content” means text, graphics, images, music, software, audio, video, data files, log files, binary files, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that Account holders (including you) provide to be made available through the Services. Content includes without limitation User Content.

Content Ownership, Responsibility and Removal

Emsisoft does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Emsisoft and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States, European Union and other countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.

(a) Rights in User Content Granted by you. By making any User Content available through the Services you hereby grant to Emsisoft a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense and to use your User Content in connection with operating and providing the Services and Content to you and to other Account holders.

(b) Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Emsisoft on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

(c) Removal of User Content. You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content (such as public posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

(d) Rights in Content Granted by Emsisoft. Subject to your compliance with these Terms, Emsisoft grants to you a limited, non-exclusive, non-transferable license, solely in connection with your permitted use of the Services.

General Prohibitions and Emsisoft’s Enforcement Rights

You agree not to do any of the following:

(a) Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;

(b) Use, display, mirror or frame the Services or any individual element within the Services, Emsisoft’s name, any Emsisoft trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Emsisoft’s express written consent;

(c) Access, tamper with, or use non-public areas of the Services, Emsisoft’s computer systems, or the technical delivery systems of Emsisoft’s providers;

(d) Attempt to probe, scan or test the vulnerability of any Emsisoft system or network or breach any security or authentication measures;

(e) Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Emsisoft or any of Emsisoft’s providers or any other third party (including another user) to protect the Services or Content;

(f) Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Emsisoft or other generally available third-party web browsers;

(g) Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;

(h) Use any meta tags or other hidden text or metadata utilizing an Emsisoft trademark, logo URL or product name without Emsisoft’s express written consent;

(i) Use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;

(j) Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information;

(k) Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;

(l) Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;

(m) Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;

(n) Impersonate or misrepresent your affiliation with any person or entity;

(o) Violate any applicable law or regulation; or

(p) Encourage or enable any other individual to do any of the foregoing.

Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

Links to Third Party Websites or Resources

The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.

Termination

We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at [email protected]. We reserve the right to and may delete User Content from the Services within twenty four (24) hours upon cancellation or termination of the Terms. This information cannot be recovered once your Account is canceled or terminated. Upon any termination, discontinuation or cancellation of the Services or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.

Warranty Disclaimers

THE SERVICES AND CONTENT ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.

Indemnity

You will indemnify and hold harmless Emsisoft and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees arising out of or in any way connected with (i) your access to or use of the Services or Content, (ii) your User Content, or (iii) your violation of these Terms.

Limitation of Liability

(a) NEITHER EMSISOFT NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT EMSISOFT OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

(b) IN NO EVENT WILL EMSISOFT’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO EMSISOFT FOR USE OF THE SERVICES OR CONTENT OR ONE HUNDRED US DOLLARS (US $100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO EMSISOFT, AS APPLICABLE.

(c) THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN EMSISOFT AND YOU.

Governing Law

These Terms and any action related thereto will be governed by the New Zealand Arbitration Act, and the laws of New Zealand, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section “Dispute Resolution for Consumers,” the exclusive jurisdiction for all Disputes (defined below) that you and Emsisoft are not required to arbitrate will be the courts located in New Zealand, and you and Emsisoft each waive any objection to jurisdiction and venue in such courts.

Dispute Resolution for Consumers

The following terms of this Section only apply if you are an individual who is using the Services and Content for your own personal use and are not representing a legal entity.

(a) Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. However, if for any reason a Dispute proceeds in court rather than in arbitration, you and we each waive any right to a jury trial.

(b) Exceptions and Opt-out. As limited exceptions to subsection (a) above: (i) you may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights. In addition, you will retain the right to opt out of arbitration entirely and litigate any Dispute if you provide us with written notice of your desire to do so by email at [email protected] within thirty (30) days following the date you first agree to these Terms.

(c) Starting Arbitration. If you want to begin arbitrating a Dispute, you must send a letter to us at the following address Emsisoft Ltd, 315a Hardy St, Nelson 7010, New Zealand, requesting arbitration and describing the Dispute. If we want to begin arbitrating a Dispute, we’ll send such a letter to you at the email address or street address that you provided.

General Terms

(a) Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Emsisoft and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Emsisoft and you regarding the Services and Content. If we execute a written Order Form with you for the provision of Services (“Order Form”), the terms of the Order Form will take precedence over any terms of the Terms that conflict with the terms of the Order Form. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Emsisoft’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Emsisoft may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

(b) Notices. Any notices or other communications provided by Emsisoft under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

(c) Waiver of Rights. Emsisoft’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Emsisoft. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

Contact Information

If you have any questions about these Terms or the Services, please contact Emsisoft at [email protected].

Last updated May 8, 2018.

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