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License and User Agreement and Privacy Policy
ACTIVE VIRUS SHIELD LICENSE AND USER AGREEMENT Redistribution or Rental Not Permitted Thank you for your interest in Active Virus Shield! This is a binding agreement that governs your installation and use of the Active Virus Shield software and its features (the Software). Active Virus Shield is a service provided by AOL (either we or us). BY REGISTERING AND/OR BY USING THE SOFTWARE, YOU AGREE TO THE TERMS OF THIS LICENSE AND USER AGREEMENT (THE "AGREEMENT"), YOU AGREE THAT YOU ARE BOUND BY THE APPLICABLE TERMS OF USE AND INFORMATION PRACTICES REFERENCED IN PARAGRAPH 5 BELOW, YOU AGREE TO RECEIVE NOTICES FROM US ELECTRONICALLY, AND YOU CONSENT TO JURISDICTION IN THE STATE OF VIRGINIA FOR ANY DISPUTE REGARDING THIS AGREEMENT. If you do not agree to the terms of this Agreement, cancel the installation and do not install or use the Software. 1. LICENSE GRANT. We grant you a personal, limited, non-exclusive, non-sublicensable, non-transferable license to install and use one copy of the Software on a single computer for personal use. This license does not entitle you to receive from us hard-copy documentation, support, telephone assistance, or enhancements or updates to the Software. 2. CHANGES TO THE SOFTWARE. We may change or discontinue, temporarily or permanently, functions and features of the Software at any time and in our sole discretion. 3. RESTRICTIONS. You may not: (i) make any copies of the Software other than an archival copy, (ii) modify or create any derivative works of the Software or documentation; (iii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, underlying ideas, or algorithms of the Software; (iv) copy, reproduce, reuse in another product or service, modify, alter, or display in any manner any JavaScript or HTML files, or parts thereof, included in the Software; (v) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; (vi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (vii) block, disable, or otherwise effect any advertising, advertisement banner window, tabs, links to other sites and services, or other features that constitute an integral part of the Software; (viii) use the Software in any way that violates this Agreement or any law; or (x) authorize or assist any third party to do any of the things described in this paragraph. 4. QUALIFICATIONS; REGISTRATION. You must be legally competent to enter in contracts. You must register to download, install and use the Software. You must provide a valid, accurate, working e-mail address that belongs to you. We may cancel your registration if your email is invalid. You may not impersonate another individual or entity. You must select a password. Your e-mail and password will serve as your credential for your Software account. You are responsible for keeping your password confidential. We reserve the right from time to time to request additional registration information from you. 5. INFORMATION PRACTICES. When you register with us and use the Software, you provide us with certain personally identifiable information (your " Product information"). The following privacy provisions explain the information practices that apply to you as a user of the Software and its related features. Your use of our or our affiliates other products, or third party offerings, is governed by their own privacy policies. a. Information Collection: Your Product information consists of personally identifiable information collected or received about you when you interact with the Software and its related features. Your Product information may include registration-related information (such as your e-mail addresses); information about how you use the Software, as well as your responses to offerings and advertisements presented through the Software; transaction-related information (such as credit card or other preferred means of payment, billing or shipping information); customer service information; and technical and diagnostic information gathered or received from the Software. Your Product information may be supplemented with additional information, including publicly-available information and information from other companies. Your Product information may also include certain technical information gathered or received when you use the Software. Some of the technical information that may be collected or received includes: the type of browser you are using (e.g., Netscape, Internet Explorer), the type of operating system you are using, the domain name of your Internet service provider, file requests for updates, computer errors arising in connection with use of the Software and Software configuration settings. The Software may also collect information about the malicious programs found on your computer during the scanning process and send the information to our servers for statistical purposes. b. Information Use: Your Product information may be use to operate and improve the Software; to personalize the content and advertisements you receive; to fulfill your requests for products, programs, and services; to communicate with you and respond to your inquiries; and to help offer you our other products, programs, or services that may be of interest. Your Product information may be shared with affiliates of AOL (Affiliates). Affiliates that receive your Product information may use this information according to their applicable privacy policies.As a condition for your use of the Software, you agree to receive promotions and periodic e-mail messages from us and our Affiliates. c. General: Your Product information may be accessed and disclosed in response to legal process (for example, a court order, search warrant or subpoena); in other circumstances in which we believe the Software is being used in the commission of a crime; when we have a good faith belief that there is an emergency that poses a threat to the safety of you or another person; or when necessary either to protect our rights or property or for us to render the service you have requested. d. Agents, Transmission and Storage of Data. We may use agents and contractors in order to help provide the Software and to help operate its corresponding features and services. Your Product information may be collected and stored in the United States and other countries. e. Marketing Preferences. You will be given the option in each marketing e-mail to opt-out of further marketing offers; however, please keep in mind that these preferences do not apply to communications that are directly related to the Software, your registration with us, or the fulfillment of a specific transaction you have requested. Because the choices you make in connection with your Product information may not take effect immediately, it is possible you may receive a communication during the period in which your request is being processed. f. Cookies. We may use cookies, web beacons, or similar technologies in combination with your Product information to enhance your experience with the Software; to help authenticate you when you use the Software; to remember your preferences and registration information; and help measure and research the effectiveness of our offerings and e-mail communications (by determining which of our e-mails you open and act upon). If you have any questions or concerns about our information practices, you may contact us at this email address: AVSPrivacy@aol.com. 6. ANTI-SPYWARE TOOLS. The Software includes features and tools that are designed to search your computer for unwanted programs that may compromise the productivity, performance, and security of your computer. Unless you elect to disable the notification dialog box, each time the Software detects an unwanted program, the Software will ask you whether you want to remove or disable the unwanted program. Please keep in mind that if you elect to have the Software remove or disable any programs, there is a possibility that you may cause other software on your computer to stop working. Removing or disabling one of these programs may also create conflicts with your obligations under licenses to use other software on your computer, if the other software installed the unwanted program on your computer as a condition of your use of the other software. You should read the license agreements for other software before authorizing the removal of any unwanted program. By using this software, it is possible that you will also disable or remove software that is not an unwanted program. You are solely responsible for selecting which unwanted programs you elect to disable or remove. We and our vendors cannot guarantee that the Software will only detect or clean applications and files that you do not use or want on your computer. For as long as you use the Software, you agree regularly to back-up your computer system(s) on a separate medium. You acknowledge that any failure to do so may significantly decrease your ability to mitigate any harm or damage arising from any problem or error in the Software. 7. LATENT DISTRIBUTION. The Software has been designed so that certain features or files can be delivered in segments to ensure that the download will be quick and convenient. In such cases, a small piece of software (the "Stub") may be installed initially that can then "call out" over the Internet to a web server and complete its installation on your computer at a later time (i) during the installation process, (ii) when the Stub detects that you have available bandwidth, or (iii) when you have requested use of a function that requires that portion of the Software. This mechanism will only be used to complete the installation of the Software you have chosen to install. 8. AUTOMATED UPDATES. We or our vendors may deliver to your computer automated updates, modifications, and/or patches to address issues such as security, interoperability, and performance (collectively Updates). Some Updates may change certain functionality of the Software to, for example, improve security, add new functions, or improve the operation of the Software. You may be given the opportunity to choose whether you want all Updates delivered silently or you would prefer to be notified when a new Update is ready to be installed. We and our vendors reserve the right to silently deliver any Update in the limited circumstances where we deem it necessary to provide for the continued functionality of the Software. Your use of the Updates will be governed by this Agreement unless you are asked to agree to new or additional terms and conditions at the time of download or installation. 9. FEES. There is no license fee for the Software. If the Software is made available on media, and if you wish to receive the Software on media, there may be a small charge for the media and for shipping and handling. You are responsible for any and all taxes. If the Software is provided as part of a service, there may be fees charged for the service. 10. PROPRIETARY RIGHTS. We and our vendors and licensors retain all title, ownership, and intellectual property rights in the Software. The Software is protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Software, including without limitation text, photos, music, and videos, are the property of the applicable content owners and are protected by applicable law. These laws restrict your rights with respect to such content. Some of the content may also include security measures designed to control access and prevent unauthorized copying and use of copyrighted materials. You agree not to interfere with any such security components. The license granted under this Agreement gives you no rights in or to such content. We and our vendors and licensors own all trademarks used in connection with the Software, and no license to use any such trademarks is provided hereunder. You agree that we may use in any manner and without limitation all comments, suggestions, complaints and other feedback you provide relating to the Software. 11. YOUR RESPONSIBILITIES. You are responsible for all activity made by anyone who uses your copy of the Software, including all legal liability incurred from the use of the Software by you or others. You are responsible for keeping your password confidential. You may use the Software for lawful purposes only. 12. ACCESS COSTS. You must provide at your own expense the equipment and Internet connections that you will need to obtain any updates for the Software. If you are accessing the Internet through a telephone line, please call your local phone company to determine if the access numbers you select are subject to long distance or other toll charges at your location. Also, your carrier, such as a wireless carrier, may charge fees for alerts, text messaging (including receiving/sending instant messages and e-mail), web browsing and other services that require the use of airtime and wireless data services. Check with your carrier to verify whether there are any such fees that may apply to you. 13. ADDITIONAL SERVICES. You understand and agree that any other products and services that we or our affiliates may offer from time to time may be governed by different or additional terms and conditions. Such additional terms and conditions will be presented to you at the time you decide to register for or use one of these additional services. 14. DIGITAL CERTIFICATES. Some of the Software may support certain cryptographic and authentication features, including but not limited to Secure Sockets Layer and S/MIME communications, that may require the installation and/or use of a digital certificate. Digital certificates are issued, validated, and revoked by third-party certification authorities ("CAs") over which we have no control. You are solely responsible for familiarizing yourself with the terms and conditions established by a CA for the use of, or reliance upon, its digital certificates, including but not limited to any obligation to validate a digital certificate, maintain the security of a cryptographic key or password, or pay fees for certification services. YOU ARE SOLELY RESPONSIBLE FOR ANY DECISION TO USE OR RELY UPON A DIGITAL CERTIFICATE. WE BEAR NO RESPONSIBILITY FOR THE VALIDITY OR ACCURACY OF ANY DIGITAL CERTIFICATE, OR FOR THE SECURITY OR INTEGRITY OF ANY TRANSACTION OR COMMUNICATION AUTHENTICATED BY A DIGITAL CERTIFICATE. 15. USE AND AVAILABILITY OF OPEN SOURCE CODE. Portions of some of the Software may have been created using source code available through various open source projects. In such cases, the licenses and availability of source code for such components are specified in a copyright notice document delivered with or linked from such Software. 16. TERMINATION. This Agreement and your right to use the Software shall terminate immediately and without notice if you violate the terms of this Agreement. In the event of any termination of this Agreement or your rights hereunder, all provisions of this Agreement except the License Grant (Section 1) shall survive such termination and you agree to continue to be bound by those terms. Upon termination, you must destroy all copies of the Software. 17. YOUR REPRESENTATIONS. You represent and warrant that you have adequate legal capacity to enter into this Agreement, that you will use the Software only for lawful purposes and in accordance with this Agreement, and that you will not use the Software in violation of any law, regulation or ordinance or any of our rights or the rights of our vendors, including without limitation, any right of privacy, publicity, copyright or trademark. You agree to indemnify us, our parent, licensors, officers, agents, employees and directors for any damages incurred as a result of a violation of this paragraph. 18. INJUNCTIVE RELIEF. You acknowledge and agree that, notwithstanding any other provisions of this Agreement, your breach or threatened breach of this Agreement shall cause us irreparable damage for which recovery of money damages would be inadequate and that we, therefore, may obtain timely injunctive relief to protect our rights under this Agreement in addition to any and all other remedies available at law or in equity. 19. DISCLAIMER OF WARRANTY. THE SOFTWARE IS PROVIDED WITH ALL FAULTS ON AN "AS IS" BASIS. WE AND OUR VENDORS AND OUR LICENSORS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES THAT THE SOFTWARE IS FREE OF DEFECTS, VIRUS FREE, AND ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, THAT THE FUNCTIONALITY OF THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT ERRORS IN THE SOFTWARE WILL BE CORRECTED, AND THE IMPLIED WARRANTIES THAT THE SOFTWARE IS MERCHANTABLE, OF SATISFACTORY QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. FURTHER, WE AND OUR VENDORS AND OUR LICENSORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. IN ADDITION, THE SECURITY MECHANISMS IMPLEMENTED BY THE SOFTWARE HAVE INHERENT LIMITATIONS, AND YOU MUST DETERMINE THAT THE SOFTWARE SUFFICIENTLY MEETS YOUR REQUIREMENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR AN AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. WE AND OUR VENDORS AND LICENSORS HAVE NO LIABILITY WITH RESPECT TO YOUR USE OF THE SOFTWARE. YOU BEAR THE ENTIRE RISK AS TO ITS QUALITY AND PERFORMANCE AND ASSUME THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER. 20. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR PARENTS, AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, LICENSORS, VENDORS, AGENTS OR RESELLERS (COLLECTIVELY, THE "AVS GROUP") BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, THE AVS GROUP'S ENTIRE COLLECTIVE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES YOU PAID FOR THIS LICENSE (IF ANY) AND REPLACEMENT OF DEFECTIVE MEDIA OR PROVISION OF A REASONABLY SIMILAR SOFTWARE PRODUCT, AS DETERMINED AT OUR SOLE DISCRETION, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU. THE AVS GROUP IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY YOU OR A THIRD PARTY THAT IS ACCESSED THROUGH THE SOFTWARE AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT. 21. IMPORT/EXPORT CONTROL. You agree to fully comply with all export and import laws, regulations, rules and orders of the United States, or any foreign government agency or authority, and not to directly or indirectly export, re-export, transfer, or release the Software, any other commodities, software or technology received from us, or any direct product thereof, for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization from the U.S. and/or foreign government. You further agree to assume responsibility for and bear all expenses relating to your compliance with the described laws, regulations, rules and orders, and obtaining all necessary authorizations and clearances. 22. HIGH RISK ACTIVITIES. The Software is not fault-tolerant and is not designed, manufactured or intended for use in environments in which its failure could lead directly to death, personal injury, or severe physical or environmental damage, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems ("High Risk Activities"). ACCORDINGLY, WE, OUR VENDORS AND LICENSORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU AGREE THAT THE AVS GROUP WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF THE SOFTWARE IN SUCH APPLICATIONS. 23. U.S. GOVERNMENT END-USERS. The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202 (June 1995). Consistent with 48 C.F.R. 12.212, 48 C.F.R. 27.405(b) (2) (June 1998) and 48 C.F.R. 227.7202, all U.S. Government End Users acquire the Software with only those rights as set forth herein. 24. ELECTRONIC NOTICES. YOU CONSENT TO HAVING US PROVIDE YOU ANY INFORMATION AND NOTICES REGARDING THE SOFTWARE (NOTICES) IN ELECTRONIC FORM. WE MAY PROVIDE NOTICES TO YOU (1) VIA E-MAIL IF YOU HAVE PROVIDED US WITH A VALID EMAIL ADDRESS OR (2) BY POSTING THE NOTICE ON A WEBSITE DESIGNATED BY US FOR THIS PURPOSE. The delivery of any Notice is effective when sent or posted by us, regardless of whether you read the Notice or actually receive the delivery. You can withdraw your consent to receive Notices electronically by discontinuing your use of the Software. 25. VENUE AND GOVERNING LAW. The terms of this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, without regard to its conflict of laws rules. YOU EXPRESSLY AGREE THAT THE EXCLUSIVE JURISDICTION FOR ANY CLAIM OR DISPUTE WITH US UNDER THE TERMS OF THIS AGREEMENT AND/OR YOUR USE OF THE SOFTWARE RESIDES IN THE COURTS LOCATED IN THE COMMONWEALTH OF VIRGINIA, AND YOU FURTHER EXPRESSLY AGREE TO SUBMIT TO THE PERSONAL JURISDICTION OF SUCH COURTS FOR THE PURPOSE OF LITIGATING ANY SUCH CLAIM OR ACTION. THE FOREGOING PROVISION MAY NOT APPLY TO YOU DEPENDING ON THE LAWS OF YOUR JURISDICTION. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for convenience only and shall not be given any legal import. 26. MISCELLANEOUS. (a) This Agreement constitutes the entire agreement between you and us concerning the subject matter of this Agreement, which may only be modified by us. (b) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (c) If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent, and the remaining portions remain in full force and effect, or we may at our option instead terminate this Agreement. (d) The controlling language of this Agreement is English. If you have received a translation into another language, it has been provided for your convenience only. (e) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (f) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. We may assign this Agreement to any entity at its sole discretion. (g) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (h) Neither party shall be in default or be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. 27. USER OUTSIDE THE U.S. If you are using the Software outside the U.S., then the provisions of this Section shall apply: (i) Les parties aux presentes confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui s'y rattache, soient rediges en langue anglaise. (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable; and (iii) if the laws applicable to your use of the Software would prohibit the enforceability of this Agreement, or impose any additional burdens on us, or confer any rights to you that are materially different from the terms and conditions of this Agreement, then you are not authorized to use the Software and you agree to remove it from your computer. Last Updated: 1-01-07