END USER SOFTWARE LICENSE AGREEMENT
IMPORTANT: This End User License Agreement (the “Agreement”) contains the terms and conditions governing access to and use of all of the Software and Services obtained from ASG (Aleman Software Group, part of Aleman Consulting SRL) (each a “Solution ”) by you and any entity or individual you represent or for whose computer, smartphone or other Device you acquire the Solutions (“you ”). By clicking the “ACCEPT” or “ACTIVATE” or similar option in connection with this Agreement, you agreed to be bound by these terms and conditions not just with respect to the Solution you are obtaining at the time, but also for any additional Solution you later acquire directly or indirectly through that first Solution, including new and different products or services, or updates and upgrades to a prior Solution, for which you do not accept a separate end user license agreement.
If you do not wish to agree to these terms, please click “DECLINE” or “CANCEL” or “BACK” or any similar option presented with this Agreement. If you do so, you will not be able to use the Solutions covered by this Agreement. If you decline to accept this Agreement, or if you are not satisfied with a Solution for any other reason, you may obtain a refund of the amounts you have paid for the Solutions within the past 30 days by following sending an email to firstname.lastname@example.org.
ASG may amend this Agreement at any time by notice provided to you in accordance with this Agreement, and your continued use of, or decision not to seek a refund for, any Solution at any point at least 30 days after the notice date will constitute your acceptance of the amendment of this Agreement. ASG may require that you accept the amendment of this Agreement in order to continue using Solutions you have previously purchased. If you decline to accept the amendment of this Agreement, ASG may terminate your use of the affected Solutions, but will refund the amounts you paid for the Solutions (prorated for the unexpired portion of the Subscription Period).
Note that this Agreement comes in two parts. Sections 1 through 11 of this Agreement (the “General Terms ”) apply to all Solutions, including those listed below. If there is a conflict between the General Terms and the Special Terms, the Special Terms will control with respect to the Solution addressed by those Special Terms.
If you have any questions or concerns about this Agreement or the Solutions to which it relates, please direct them to the ASG contacts shown in Section 11.17.
Note as well that in this Agreement you:
Represent that you are 18 years of age or older, and are authorized to accept this Agreement on behalf of all of the individuals and entities for whom (or for whose Device) you obtain Solutions;
Represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not a person who is either barred or otherwise legally prohibited from receiving or using the Solutions under the laws of the country in which you are resident or from which you access or use the Solutions;
If the email address you have provided to ASG changes, you must update your user profile at email@example.com to ensure that you receive notices about Subscription Period extensions and other important information about this Agreement and the Solutions;
ASG, subject to the Special Terms, may from time to time update any Solution or replace a Solution with another Solution with similar functionality without requesting or obtaining your separate consent, and your Device or certain Device functions may not be available to you while the Update is in process;
Affiliate means, with respect to ASG, an entity controlling, controlled by or under common control with the ASG. “Control ”, as used in this section, means ownership of more than 50% of the outstanding voting interest of the applicable entity.
Applicable Conditions, with respect to any Solution, means the Subscription Period for the Solution, whether the Subscription Period automatically extends, the number and type of Devices and/or Users for which the Solution is authorized, and other similar terms governing use of that Solution. The Applicable Conditions are specified (i) on the checkout payment page if you obtain the Solution over the Internet, from a Mobile App Store or by other electronic means, or (ii) on the package if you acquired the Solution on CD or other physical medium.
Authorized Purposes means (i) with respect to Free Solutions and Beta Solutions, your personal, noncommercial use, and (ii) with respect to other Solutions, your personal use or internal commercial use, and in each case not for resale or other exploitation for the benefit of a third party.
ASG means Aleman Software Group and Aleman Consulting, a company formed under the laws of the Romania and European Union or, with respect to any Solution, the ASG Affiliate providing the Solution to you.
Beta Solution means any Evaluation Solution and any Solution marked or otherwise designated as a beta test version, irrespective of whether payment has been made.
Device means any mobile phone, mobile device, tablet, mobile network appliance, other mobile product (each, a “Mobile Device ”) or any personal computer running on an operating system supported by ASG as specified in the Applicable Conditions and in the Technical Specifications in respect of the Solution.
Dispute has the meaning ascribed to it by Section 11.3.1 of this Agreement.
Evaluation Solution means an otherwise paid Solution that ASG provides without receiving payment for trial or evaluation purposes.
Extension Period has the meaning ascribed to it by Section 3.1 of this Agreement.
Fair Processing Notice means the notice provided in Section 9.3 of this Agreement.
Free Solution means any Solution other than Beta Solutions that ASG designates as “free” or otherwise provides without charge.
Initial Subscription, for each Solution, means the period beginning on the date you obtain the Solution and continuing for the term specified by the Applicable Conditions.
Mobile App Store means an online store that currently or in the future offers Mobile Solutions, including through the Device itself.
Mobile Solution means a Solution available to you on a Mobile Device platform, e.g., Android, iOS, and Windows Phone.
Personally Identifiable Information means information that can be used to uniquely identify, contact, or locate a single individual or can be used with other sources to uniquely identify a single individual including, as applicable under applicable law, personal data (as the term is used by the EU Data Protection Directive 95/46/EC).
Service means a Solution comprising services delivered online or by telephone.
Software means a Solution comprising software intended to be installed on a Device, and shall include any Updates.
Solution has the meaning set forth in the preamble.
Subscription Period, with respect to each Solution, means the Initial Subscription together with all Extension Periods.
Technical Specifications means the technical documentation applicable to the relevant Software, available at http://www.aleman.ro or http://www.aleman-consulting.com as updated from time to time.
Third Party Materials means software, services, websites, offers and promotions or products provided by any third party and governed by Third Party Terms and Conditions.
Update means content or code ASG deploys to update a Solution including but not limited to new releases or versions of Software, updated code or any other available update provided by ASG from time to time in connection with a Solution.
US Government means the federal government of the United States of America.
Upgrade means any and all improvements in the Products which are made generally available to ASG customer base as a part of purchased Support and which are not separately priced or marketed ASG.
User is defined as any individual specifically identified as capable of sending HTTP requests to the Internet to be processed by a ASGproduct, regardless of whether the individual is actively using the product at any given time. In cases where multiple unique users use the same workstation to access the Internet, such as educational institutions and libraries, that workstation represents a single ‘user’. For all other products, “User” means a unique individual within a company or other legally recognized entity (“Entity”) where (1) Entity has acquired a valid license(s) to use the Software and/or Services, and (2) Entity has authorized the individual to use the Software and/or Services.
- LICENSE GRANT; GENERAL.
2.1 Grant of License. ASG, subject to the terms and conditions of this Agreement, hereby grants you a non-exclusive and non-transferable license to use each Solution you purchase or otherwise properly acquire, in each case during the applicable Subscription Period for Authorized Purposes in accordance with the Applicable Conditions and Technical Specifications. The Subscription Period for Free Solutions continues indefinitely, without the need for extensions, until you or ASG terminates it in accordance with this Agreement.
2.2.1 General. You will not, and will not permit any third party to, (i) use any license or other authorization number supplied by ASG in connection with any Solution on more than the number of Devices or Users specified by the Applicable Conditions, (ii) disclose any license or authorization number to any party other than ASG or ASG designated representatives, (iii) except as expressly authorized by law, (A) reverse engineer, disassemble, decompile, translate, reconstruct, transform or extract any Solution or any portion of the Solution (including without limitation any related code), or (B) change, modify or otherwise alter any, (iv) publish, resell, distribute, broadcast, transmit, communicate, transfer, pledge, rent, share or sublicense any Solution, (v) grant any third party access to or use of any Solution on a service bureau, timesharing, subscription service or application service provider or other similar basis, (vi) test or benchmark, or disclose or publish testing or benchmark results, for any ASG Solution without ASG’s prior written consent (which you may request at firstname.lastname@example.org), or (vii) defeat or circumvent, attempt to defeat or circumvent, or authorize or assist any third party in defeating or circumventing controls on the installation or use of copies of any Solution.
2.2.2 Software. In addition to the limitations established by Section 2.2.1, you will not (i) copy Software for any purpose other than, as reasonably necessary to use the same as contemplated by this Agreement, and to preserve 1 uninstalled/off-line copy for disaster recovery purposes; (ii) install the Software on any operating system not supported by ASG as reflected in the Technical Specifications, or (iii) remove any copyright, trademark or other proprietary notices from the Software.
2.2.3 Administrator Rights. Certain Solutions grant you or another user administrative privileges that, among other things, may allow the administrator to monitor other Devices/Users and/or the status of Solutions deployed on other Devices, including for example subscription status, Solution notifications and messages. You represent and warrant that you will exercise administrator privileges only with respect to Devices and Solutions for which you are authorized and for no other purpose. You also represent and warrant that you have the authority to accept this Agreement on behalf of owners and users of those administered Devices, and hereby accept this Agreement on their behalf.
2.2.4 Warning. IF YOU USE ANY SOLUTION FOR PURPOSES OR IN A MANNER NOT EXPRESSLY AUTHORIZED BY THIS AGREEMENT, YOU ARE COMMITTING A MATERIAL BREACH OF THIS AGREEMENT AND MAY VIOLATE APPLICABLE COPYRIGHT LAWS, AND ALL WARRANTIES PROVIDED BY ASG FOR THE PRODUCT WILL TERMINATE IMMEDIATELY FOLLOWING YOUR BREACH.
2.3 Third Party Fees. You may incur access fees or data or usage fees from third parties (such as your Internet provider or mobile carrier) in connection with your use of a Solution. For instance, you may incur such fees if you use the ASG Antivirus Mobile Solution and it downloads Updates including malware definitions. You are responsible for all such fees.
2.4 Updates. ASG, from time to time during the Subscription Period and, without your separate permission or consent, may deploy Updates for any Solution, and you may not be able to use the applicable Solution or Device (or certain functions of the Device) until the Update is fully installed. Updates will be deemed a part of the Solution for all purposes under this Agreement. Updates may include both additions to and removals of particular functionality offered by a Solution or may replace it entirely, and the content and functionality of such updates is at the sole discretion of ASG. ASG or your Device may offer you the option to decline or delay Updates, but you must download and permit installation of all available Updates to obtain maximum benefit from the Solution. ASG may stop providing support for a Solution until you have accepted and installed all Updates. ASG will determine when and if Updates are appropriate and has no obligation to make any Updates available to you. ASG in its sole discretion may stop providing Updates for any version of the Solution other than the most current version, or Updates supporting use of the Solution in connection with any versions of operating systems, email programs, browser programs and other software with which the Solution is designed to operate.
2.5 Conflicting Functionality and Uninstallation. Certain Software, during its installation, may disable existing functionality, and replace it with functionality provided with the Solution. If you uninstall the Solution, you may be prompted to activate other software. ASG strongly advises you to activate such other software as prompted once the Solution has been uninstalled. Some third-party applications, such as other anti-virus products, may not allow the Solutions to install or run correctly. If you choose to ignore the warnings provided during the installation of the Solution, such Solutions may not function properly, and notwithstanding anything to the contrary in this Agreement, ASG disclaims any and all warranties and liability with respect to such Solutions. Additionally, ASG does not support third-party applications which provide uninstallation functionality for our Solutions as they may cause further problems for the end user. Should you choose to use such third-party uninstallers, notwithstanding anything to the contrary in this Agreement, ASG disclaims any and all warranties and liability with respect to such Solutions.
2.6 User Comments. ASG welcomes your comments concerning Solutions, including notice that you have experienced a failure, error or other malfunction, and suggestions for additional or different features and functions. Please send us your comments and suggestions using the email address email@example.com. ASG accepts no obligation to respond or act on any such comments or suggestions and this invitation to comment does not constitute any admission of liability or product failure of a Solution, but you grant ASG a perpetual, irrevocable, transferrable, sublicensable, fully paid-up, royalty-free, worldwide right and license under your intellectual property rights (if any) to c use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever your comments and suggestions in any Solution and other products and services.
2.7 User Content. Certain Solutions may enable you to upload, publish or share content you have generated or obtained from other sources (“User Content ”). You retain any and all intellectual property rights you already hold under applicable law in User Content you upload, publish, and submit to or through the Solution, subject to the rights, licenses, and other terms of this Agreement, including any underlying rights of others in any User Content that you may use or modify. You grant to ASG, a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever, all or any portion of your User Content (and derivative works thereof), solely for the purpose of providing the Solutions to you under this Agreement. Each time you submit any User Content, you represent and warrant that you are at least the age of majority in the state /country in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User Content you submit, and that, in regard to that User Content, (a) you are the sole author and owner of the intellectual property and other rights to the User Content, or you have a lawful right to submit the User Content and grant ASG the right to use it as described in this Section, all without any ASG obligation to obtain consent of any third party and without creating any obligation or liability of ASG; (b) the User Content is accurate; (c) the User Content does not and, as to ASG’s permitted uses and exploitation set forth in this Agreement, will not infringe any intellectual property or other right of any third party; and (d) the User Content will not violate this Agreement or cause injury or harm to any person.
- SUBSCRIPTION EXTENSIONS, TERMINATION.
3.1 Subscription Extensions. At the end of any Subscription Period, your subscription may extend for successive time periods (each, an “Extension Period ”) in accordance with this Section 3.1.
3.1.1 Automatic Extensions. If, under the Applicable Conditions for a given Solution, the Subscription Period automatically extends for an additional month, year or a similar consecutive time period, ASG may provide you with a notice that includes instructions on how to cancel your subscription at the end of the current Subscription Period and how to request a refund for cancellation requests within 30 days of the start of a new Subscription Period. You may cancel your subscription at the end of the Subscription Period by following the instructions in the notice. If you do not cancel the subscription, ASG will charge your credit card or debit card for the extension fee and, on receipt of payment, will extend the Subscription Period for the applicable Extension Period.
3.1.2 Manual Extensions. If, under the Applicable Conditions, the Subscription Period does not automatically extend, ASG may (but is not required to) notify you prior to the conclusion of the Subscription Period that your Subscription Period is due to expire, and may offer you the opportunity to extend the Subscription Period at ASG’s then-current price. You may accept the offer by following the instructions set forth in the notice, in which case the Subscription Period will extend for the period you select.
3.2 Refunds. ASG for most Solutions offers a 30-day money-back guarantee. If you have paid for an eligible product within the preceding 30 days, you may obtain a refund by following the instructions in this section.
3.2.1 For Mobile Solutions. The quickest way to obtain a refund on a Mobile Solution is to follow the process established by the Mobile App Store from which you purchased the Solution. If the Mobile App Store does not honor your refund request, but you are otherwise within the 30 day window from initial purchase, you may be able to return your Mobile Solution for a refund of all amounts paid (other than for in-app purchases or subscriptions) by asking for the instructions at firstname.lastname@example.org.
3.2.2 Other Solutions. Unless otherwise provided in this Agreement, you may be able to return any Solution other than Mobile Solutions that you have purchased by asking for the instructions at email@example.com.
3.3 Payment Information. In an effort to ensure your use of a Solution is not interrupted, ASG may participate in recurring billing programs or account updated services. If your Subscription Period automatically extends and ASG is unable to charge the credit card or debit card ASG has on file for you, ASG at its option may obtain an updated card number, expiration date or other updated payment information from your bank or another source, or your card issuer may automatically charge your card without notifying ASG or you.
3.4 Termination. ASG, in addition to such other rights as may be available at law, in equity or otherwise, may terminate your license to any or all Solutions without liability (i) for convenience on five (5) days’ prior notice, provided that ASG, in its sole discretion, shall for paid Solutions, either (a) refund to you the fees you paid to ASG in respect of the unexpired portion of the applicable Subscription Period, pro-rated over the applicable Subscription Period, or (b) grant a license for a substantially similar product for the remainder of the Subscription Period, or (ii) for cause at any time without notice if you commit a breach of this Agreement. For the avoidance of doubt, for Free Solutions and Beta Solutions, ASG shall have no further obligation to you beyond providing five (5) days’ prior notice to terminate for convenience in accordance with this Section, and shall have no obligation to provide notice in the case of a termination for your breach of this Agreement.
3.5 Effect of Termination. On the expiration of the applicable Subscription Period for any relevant Solution or termination of the Subscription Period for any relevant Solution or this Agreement, you shall cease using the relevant Solutions, ASG may cease making Updates or Upgrades available to you, and the relevant Solution may cease functioning. Sections 1, 2.6, 2.7, 4, 5, 6, 7, 8, 9, 10, 11 and 12 will survive the expiration or termination of this Agreement.
- THIRD PARTY MATERIALS; THIRD PARTY TERMS AND CONDITIONS.
ASG, directly or through a Solution, may present links to or offers for Third Party Materials, all of which are controlled by third parties and most of which are subject to Third Party Terms and Conditions. Please read those conditions carefully before accepting them. ASG is not responsible for the content or performance of any such Third Party Materials, does not warrant or endorse any such Third Party Materials or assume or have any liability whatsoever to you or any third party with respect to such Third Party Materials. If you access, download or use such Third Party Materials, you do so entirely at your own risk.
5.1 ASG reserves all rights in the Solutions not expressly granted by this Agreement. All copyrights, trademarks and other conceivable intellectual property rights in and to the Solution (including, but not limited to, malware signatures and other data files, images appearing in the Solution and screen displays as well as any and all documentation relating to the Solution) are owned by ASG or its licensors, and are protected by United States, Romania and European Union and foreign copyright laws, international treaties and other applicable laws. Any copy of a Solution you are permitted to create pursuant to this Agreement must contain the entire copyright notice and other notices included with the original copy of the Solution.
5.2 Any trade names, trademarks, service marks, logos, domain names or other distinctive brand features used with, on or relating to any third party products or services including Third Party Materials available on or through a Solution are the property of the third party providers or their respective licensors.
6.1 General. Except as provided by Section 6.2, ASG represents with respect to each Solution that, on delivery of the Solution and for a period of thirty (30) days thereafter (i) the medium (if any) on which the Solution is delivered will be free of material defects, and (ii) subject to Section 6.3, the Solution will conform to the description, if any, set forth in the Applicable Conditions and/or the Technical Specifications. The foregoing warranty applies only to the Solution as originally delivered, and does not apply to Updates and Upgrades or defects caused by the combination, operation or use of the Solution with software, hardware or other materials not provided by ASG, or by Devices, software, or other materials that do not conform to ASG requirements set forth in the Technical Specifications. Your sole and exclusive remedy for breach of the warranty in this Section 6.1 is replacement of the defective media or Solution or, at ASG’s option, return of the Solution for a full refund. In order to exercise your rights under this Section 6.1, you must uninstall and destroy all copies of the Solution you may have made (including all archival copies).
6.2 Free Solutions and Beta Solutions. THE PROVISIONS OF THIS SECTION 6.2 APPLY IN PLACE OF SECTION 6.1 WITH RESPECT TO FREE SOLUTIONS AND BETA SOLUTIONS. ALL ASG FREE SOLUTIONS AND BETA SOLUTIONS ARE PROVIDED ON AN “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND AND WITHOUT SUPPORT OR OTHER SERVICES BY ASG.
6.3 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED BY SECTION 6.1 OF THIS AGREEMENT, ASG PROVIDES EACH SOLUTION ON AN “AS IS”, “WITH ALL FAULTS”, AND “AS AVAILABLE” BASIS, AND ASG AND ITS AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, SUPPLIERS, DISTRIBUTORS, RESELLERS, WIRELESS CARRIERS OVER WHOSE NETWORK THE SOLUTION IS PROVIDED, OR OTHER BUSINESS PARTNERS AND EACH OF THEIR RESPECTIVE AFFILIATES, REPRESENTATIVES, VENDORS, AGENTS AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE SOLUTIONS, MEDIA AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, WHETHER GIVEN BY ANY THIRD PARTY LICENSORS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY OF NONINFRINGEMENT. ASG DOES NOT WARRANT THAT THE OPERATION OF THE SOLUTIONS WILL BE UNINTERRUPTED OR ERROR FREE, THAT THE SOLUTIONS WILL WORK PROPERLY ON YOUR DEVICE OR WITH ANY PARTICULAR CONFIGURATION OF HARDWARE AND/OR SOFTWARE, OR THAT THE SOLUTIONS WILL PROVIDE COMPLETE PROTECTION FOR THE INTEGRITY OF SELECTED DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. Some jurisdictions do not allow limitations on certain warranties, so the above limitations may not apply to you. You may have other rights that vary from jurisdiction to jurisdiction.
6.4 Hazardous Environments. Solutions are not designed or licensed for use in hazardous environments, including without limitation operation of nuclear facilities, aircraft navigation systems, aircraft communication systems, air traffic control, life support or weapons systems and any other environment in which bodily injury or death could result from failure of or inability to use any Solution. Without limiting the provisions of Sections 6.2 and 6.3 of this Agreement, ASG and its licensors hereby disclaim any express or implied warranties of fitness for such purposes or uses.
- LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ASG OR ITS AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, SUPPLIERS, DISTRIBUTORS, RESELLERS, WIRELESS CARRIERS OVER WHOSE NETWORK THE SOLUTION IS PROVIDED OR OTHER BUSINESS PARTNERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY, OR ANY DAMAGES (WHETHER DIRECT OR INDIRECT) INCURRED FOR LOSS OF BUSINESS, PROFITS OR REVENUE, LOSS OF PRIVACY, LOSS OF USE OF ANY DEVICE OR SOLUTION INCLUDING THE SOLUTION, COSTS OF PROCURING SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS ARISING OUT OF THIS AGREEMENT OR THE SOLUTION PROVIDED HEREUNDER, EVEN IF ASG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ASG WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION, INADVERTENT DISCLOSURE OR LOSS OF DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED ON ITS SYSTEMS REGARDLESS OF THE CAUSE. IN NO EVENT SHALL ASG’S LIABILITY RELATED TO ANY SOLUTION EXCEED THE LESSER OF (I) THE FEES YOU ACTUALLY PAID FOR THE SOLUTION, AND (II) THE ASG SUGGESTED RETAIL PRICE FOR THE SOLUTION AS OF THE DATE YOU RECEIVED IT (OR, WITH RESPECT TO A FREE SOLUTION OR BETA SOLUTION, US$5.00 (US$1.00 FOR FREE AND BETA SOLUTIONS). THE FOREGOING LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
YOU WILL INDEMNIFY, DEFEND AND HOLD HARMLESS ASG, ITS AFFILIATES, AGENTS, LICENSORS, REPRESENTATIVES, SUPPLIERS, DISTRIBUTORS, RESELLERS AND OTHER BUSINESS PARTNERS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND REPRESENTATIVES FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, RESULTING FROM YOUR USE OF THE SOLUTION OR ANY VIOLATION OF THIS AGREEMENT BY YOU, INCLUDING BUT NOT LIMITED TO ANY BREACH OR ALLEGED BREACH OF ANY OF YOUR REPRESENTATIONS, WARRANTIES, OBLIGATIONS OR UNDERTAKINGS HEREUNDER. ASG RESERVES THE RIGHT TO ASSUME, AT ITS SOLE EXPENSE, THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL FULLY COOPERATE WITH ASG IN ASSERTING ANY AVAILABLE DEFENSES.
- PRIVACY AND SECURITY.
- USAGE MONITORING/COMPLIANCE.
ASG MAY MONITOR YOUR USE OF A SOLUTION TO CONFIRM THAT IT COMPLIES WITH THE TERMS OF THIS AGREEMENT. SHOULD ASG DETERMINE THAT YOU ARE IN BREACH OF THIS AGREEMENT, ASG, IN ADDITION TO SUCH OTHER RIGHTS THAT MAY BE AVAILABLE AT LAW, EQUITY OR OTHERWISE, SHALL BE ENTITLED TO EXERCISE ITS RIGHTS UNDER SECTIONS 3 AND 8 OF THIS AGREEMENT.
11.1 Notice. ASG may at any time deliver any notice to you via electronic mail, pop-up window, dialog box or other means, even though in some cases you may not receive the notice unless and until you launch a Solution. Any such notice will be deemed delivered on the date ASG first makes it available through a Solution, irrespective of when you actually receive it.
11.2 Choice of Law. The construction, validity and performance of this Agreement and all non-contractual obligations arising from or connected with this Agreement shall be governed by the laws of the European Union and Romania excluding its conflict of laws principles.
11.3 Binding Arbitration Agreement and Class Action Waiver.
11.3.1 This Binding Arbitration Agreement and Class Action Waiver applies to any Dispute arising from or related to a Solution and involving you and ASG and/or its Affiliates. “Dispute”, for purposes of this provision, means any dispute, action, or other controversy regardless of the particular cause of action(s) asserted (i.e., it encompasses, among any other potential cause of action or legal basis, claims for breach of contract, fraud, and violation of statute or regulation). The foregoing definition of “Dispute” will be given the broadest possible meaning allowable under law.
11.3.2 In the event of a Dispute, you must provide ASG with a notice of Dispute, which is a written statement of the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested. You must send any Notice of Dispute by email to ASG at firstname.lastname@example.org (stating Subject: Section 11.3 Notice of Dispute Under EULA).
11.3.3 If you or ASG do not resolve any Dispute by informal negotiation, any other effort to resolve the Dispute will be conducted exclusively by binding arbitration governed by the European Union arbitration laws. You are giving up the right to litigate (or participate in litigation as a party or class member) all Disputes in court before a judge or jury. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
11.3.4 Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. You will not seek to have any Dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity. No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.
11.4 Interpretation. The headings in this Agreement do not affect its interpretation. The use of any gender includes all genders. The singular includes the plural and vice-versa. Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
11.5 Severability. Should any provisions of this Agreement be deemed illegal, invalid or unenforceable under any applicable laws and regulations, all other provisions of this Agreement shall remain in full force and effect.
11.6 Impossibility. ASG shall be not liable for any failure or delay in performance due in whole or in part to any cause beyond its reasonable control, including but not limited to utility or transmission failures, failure of phone lines or phone equipment, power failure, strikes or other labor disturbances (including without limitation a strike or other labor disturbance arising in respect of ASG and its Affiliates, agents, licensors, representatives, suppliers, distributors, resellers and other business partners ), acts of war or terror, floods, sabotage, fire, natural or other disasters or Acts of God.
11.7 Waiver. The failure of either party to insist on the strict performance of any of the terms, conditions and provisions of this Agreement shall not be construed as a waiver or relinquishment of future compliance with the Agreement, and the terms, conditions and provisions of this Agreement shall remain in full force and effect. No waiver of any term or condition of this Agreement on the part of either party shall be effective for any purpose whatsoever unless such waiver is in writing and signed by such party. The waiver by either party of a breach of any provision of this Agreement by the other party shall not be construed as a continuing waiver of such breach or as a waiver of other breaches of the same or of other provisions of this Agreement.
11.8 Assignment. You may not assign your rights or obligations under this Agreement without the prior written consent of ASG. ASG may assign this Agreement at any time in its sole discretion without any prior written consent by you.
11.9 Construction. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. In the event that an ambiguity or question of intent or interpretation arises, in any judicial proceeding or otherwise, the terms of this Agreement shall be construed as having been drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
11.11 Export Controls. You must comply with all applicable U.S. and international laws governing export and re-export of the Solutions, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. Without derogating from the generality of the foregoing, (i) you represent that you are not a member of any of the denied person list, unverified list, entity list, specially designated nationals list, debarred list or any other lists published by the U.S. Government, (ii) you shall not use, export or re-export the Solution to territories, destinations, companies or individuals in violation of U.S. and E.U. embargos or trade sanctions, including without limitation, in the following countries: Cuba, Iran, North Korea, Sudan and Syria.
11.12 No Third Party Beneficiaries. This Agreement is intended solely for the benefit of you and ASG and/or its Affiliates, and their respective agents, licensors, representatives, suppliers, distributors, resellers and other business partners. Other than as provided in Section 12.4.3(b)(vi), no person not a party to this Agreement may bring a cause of action pursuant to this Agreement as a third party beneficiary hereof.
11.13 Language. This Agreement was originally prepared in the English language. Although ASG may provide one or more translations for your convenience, the English version will control in the case of any conflict or discrepancy.
11.14 Internet connection. Certain Solutions may require an active and stable connection to the Internet in order to function. It is therefore your responsibility to ensure that you have at all times an active and stable Internet connection.
11.15 Product names. ASG reserves the right to change the name of its Solutions in its sole discretion from time to time.
11.16 Contact Information. ASG may be contacted at Attn: Customer Care Manager, Aleman Consulting SRL, Str. 9 Mai, Bl.6, Ap.2, Petrosani, Hunedoara, Romania, and phone: +4031 425 38 35 and email@example.com for any questions, complaints or claims.
Commitment to Privacy
What Information Does ASG Collect?
Non-Personally Identifiable Information
How Do We Use the NPII We Collect?
Personally Identifiable Information
How Do We Use the PII We Collect?
The type of information that we collect and retain depends upon your interaction with our Site and/or our ASG Products. In general, there are two different categories of information we may collect:
Non-Personally Identifiable Information
Non-Personally Identifiable Information (“NPII”) refers to information that cannot be used to identify a specific person. The NPII ASG may collect include, without limitation, information about ASG Products and their installed features, data concerning your device, including file names, cryptographic hash, vendor, size, date stamps, information about your devices operating systems, which may include path, file and application names, settings and configurations, such as associated registry keys, the date and time, the internet address of the website from which you link directly to our Site, the name of the file or the words you search, and the browser you use to access our Site, type of device, advertising ID and the mobile network (mobile carrier) you use, third party software installed on a device and related settings, installation and uninstallation rates, language, technical parameters and manufacturer of a device, device security information (password attributes, encryption level). ASG collects NPII and shares them with its Affiliates when you use our ASG Products and when you visit the Site. This is captured via a standard “cookie”, see our Cookie Statement.
How Do We Use the NPII We Collect?
Personally Identifiable Information
Personal data and information (“Personal Identifiable Information” or “PII”) refers to information that can be used to identify a living individual. We may obtain PII from you through two types of interaction (manually submitted by you and automatically collected by us):
- INFORMATION YOU SUBMIT TO US MANUALLY
We collect the PII you provide to us on our Site or through our ASG Products, including your name, address, email address, telephone number, and if you pay by credit card, your account information. This happens when you:
- Create a user account, place an order, register a product
- Requesting product support or other services
- Request information about ASG Products
- Participate in surveys
- INFORMATION AUTOMATICALLY COLLECTED AND STORED THROUGH INTERACTION
When you interact with ASG Products or Sites we may maintain a partial or full record about some or all of the following types of information:
- Your Internet Protocol (“IP”) address
- Phone number, SIM number, subscriber number, and Device ID – IMEI, MEID
- Date and time, country, geographic location based on GPS/Wi-Fi/communications network local information.
How Do We Use the PII We Collect?
The PII we collect is generally used to help us develop the best protection and performance for you, process your requests and transactions, to tell you about opportunities we think will be of interest to you, to customize your experience with our ASG Products and on our Site and to understand your needs so that we may provide you with the most suitable products and services. For example, we may use your PII to help us:
- Provide you with information about product upgrades, new products, services, research on future product ideas or improvements
- Send newsletters, informative e-mails or other information which has the nature of business announcements
- Create content that is relevant to you
- Provide you with special opportunities that may be of interest to you, including offers relating to third party products and services
- Provide you with service messages to your device
- Assist us in creating better, customized products and services to meet your needs
- Allow you to purchase and download products, obtain access to services or otherwise engage in activities you select
- Help you quickly find software, services, or product information important to you
- Allow you to participate in interactive features of our service, when you chose to do so
- Notify you about changes to our service
Yes, in certain circumstances.
With Whom Do We Share Your Information?
By providing us with PII, you consent to our ability to send your PII between our Affiliates around the world to provide you with products and services. This may include cross-border transfers of user data. The PII and NPII that you have provided to us may be made accessible to these ASG offices for customer relationship management and marketing purposes.
ASG does not sell or rent your PII to third parties. ASG, like all major organizations, uses a range of third parties to provide services to ASG and to you – either directly or indirectly. Where relevant, these companies are required to comply with our data privacy and information security standards when handling Personal data.
We may share your PII if we believe in good faith that such disclosure is: a) authorized by law or necessary to comply with a valid legal process or to deliver the product or service you require; b) in response to legal claims; c) required to protect and defend the rights, property or legitimate interests of ASG; d) necessary to protect personal safety, property or other rights of ASG or its customers or employees; e) in connection with a sale of all or part of our business or f) otherwise consented to by you. Such disclosure may include cross-border transfer of PII.
If legally compelled to disclose your information to a third party, we will use commercially reasonable efforts to notify you in advance of a disclosure unless legally prohibited.
SELECTED RESELLERS, DISTRIBUTORS AND OTHER DISTRIBUTION CHANNEL PARTNERS
Rights and Responsibilities
If you have given your PII to ASG, you have the right to ask us to advise you of the scope of information ASG processes about you, the purpose and nature of the processing, and information on who we share it with.
If you have given us your PII, you can also request to update, correct, or delete (assuming that this does not impact the services we are providing to you) it at any time. In addition you can opt out of marketing contact upon request, as explained below. If have any questions about this policy or any of the above, please email us at firstname.lastname@example.org or see instructions in the ASG Product.
Please note: we may reject requests which risk the privacy of others or are unreasonable or repetitive, require disproportionate technical effort (such as developing new systems or fundamentally changing an existing business practice), or would be extremely impractical.
ASG Update Bulletin and Other Communications
If you do not wish to continue receiving our e-mail newsletters, bulletins, or other information from ASG Technologies, you can opt-out at any time by following the relevant unsubscribe process outlined in the applicable email or newsletter. Please be aware that our e-mails may include important or useful information about your ASG Products, including information about your license number or the status of your orders or accounts.
Links to Other Companies
ASG is committed to maintaining the security of information under our control. To prevent unauthorized access, maintain data accuracy and ensure correct use of information, we have put in place industry-accepted physical, technical and administrative practices to safeguard and secure the information we collect.