AVIRA PRODUCT END USER LICENSE AGREEMENT AND TERMS OF USE

Last modified: August 19, 2014

This Avira Product End User License Agreement and Terms of Use (“Terms”) comprise a legal agreement between you individually, or if you are authorized to acquire Avira’s products, software or access and/or use our services (collectively, “Products,” “our Products” or “Product”) on behalf of your company or another organization, between the entity you represent (in both instances, “you” or “yours”) and Avira (“we,” “us,” “our,” or “Avira”). If you are located in the United States or Canada, Avira means Avira, Inc., 330 Primrose Avenue, Suite 610, Burlingame, CA 94010, USA. If you are located outside the United States or Canada, Avira means Avira Operations GmbH & Co. KG, Kaplaneiweg 1, 88069 Tettnang, Germany.

If you reside outside the United States and Canada, note the additional terms in Section 15 which apply to you.

BY ACCEPTING THESE TERMS, YOU CONFIRM THAT YOU ARE LAWFULLY ABLE TO ENTER INTO AND FORM CONTRACTS BASED ON THE APPLICABLE LAW IN YOUR JURISDICTION (FOR EXAMPLE, IN THE UNITED STATES, YOU MUST BE OVER 18 YEARS OLD). BY USING OUR PRODUCTS, CLICKING THE “I AGREE”, “ACCEPT” OR “YES” BUTTON, LOADING THE PRODUCTS OR OTHERWISE INDICATING ASSENT, YOU ARE AGREEING TO THESE TERMS, WHICH WILL BECOME A LEGAL AND ENFORCEABLE CONTRACT BETWEEN YOU AND AVIRA. PLEASE READ THESE TERMS CAREFULLY AND MAKE SURE YOU UNDERSTAND THEM BEFORE YOU AGREE TO THEM.

1. OTHER TERMS THAT APPLY

The “Standard Terms and Conditions of Business of Avira” are available on http://www.avira.com (“Terms and Conditions”), which you may have accepted when purchasing our Products and, in such a case, will apply in addition to, and supplement the provisions of, these Terms. In the case of a conflict between these Terms and the Terms and Conditions, these Terms shall govern.

Some of our Products may come with additional product information (“Product Information Sheet”) and/or written materials, in printed or electronic form, describing the features of a particular Product and/or Update or Upgrade (as defined below) that are designed to help you effectively use a particular Product, Update or Upgrade (“Documentation”). Any additional terms described in the Product Information Sheet will become part of these Terms. Any other materials and Documentation are for reference purposes only, do not constitute a representation and/or warranty and shall not be binding on either you or us.

When you accept these Terms, you also agree that our privacy policy then-existing at http://www.avira.com/privacy applies to you and that you allow us and, as applicable, our Product providers to collect, transfer, backup and store your Personal Data and other data pursuant to the terms of the privacy policy. Please review our privacy policy on a regular basis as it will provide you with the most up to date information with respect to how we collect, store and use your data.

2. USING OUR PRODUCTS

With respect to all of our Products, you must comply with these Terms and any other terms and policies that you have accepted. You must not misuse our Products in any manner. Purely for the purpose of providing examples of such misuse, do not interfere with our Products, try to access them using a method other than the interface or instructions we provide or bypass any measure we may use to prevent or restrict access to our Products or some part of our Products. You must comply with applicable domestic and international law when using our Products and you may not use our Products, without limitation, to upload, download, post, submit, distribute or facilitate the distribution of any content that may infringe someone’s intellectual property rights, rights to confidential information or privacy or which violates any export laws or any other right of a third party.

If you do not comply with the applicable law and/or these Terms, we may be forced to bring an action to collect damages and/or prohibit your behavior or stop you from any unauthorized use of our Products. Some unlawful activity may even result in criminal prosecution under relevant law. Nobody wants this, so please comply with the law and these Terms.

Unless expressly stated otherwise, using a particular Products does not give you ownership of any intellectual property rights in such Product or any of the content you access. You may not use content from our Products unless you obtain permission from the owner of such content or are otherwise permitted by law. These Terms do not grant you the right to use any branding or logos used in our Products. Never remove, obscure or alter any legal notices displayed in or along with a respective Product.

For some of our Products (for example, Avira Answers), we provide a platform allowing users to interact with other members in the Avira user community and/or Experts. As part of such platform, we may also provide users with the possibility of negotiating and completing transactions with Experts. Avira is not and shall not be either a party to any agreements or transactions by and between any users and/or Experts nor an agent of any user for any purpose. For the avoidance of doubt, Avira shall in no way be held responsible for the actions and/or omissions of users via any of its platforms unless we have expressly let you know otherwise in these Terms.

You are responsible for familiarizing yourself with the key functions and features of a respective Product as you bear the entire risk associated with a particular Product meeting your individual requirements and needs. You are responsible for installing a respective Product, Update and/or Upgrade and complying with any of our instructions concerning the installation of a respective Product and any associated Updates and Upgrades. You are also responsible for setting up and maintaining a functional hardware and software environment and for performing regular data backups.

You must notify us of any alleged or potential defect with a respective Product as soon as possible. If you provide us with an email address or other contact information in order to allow us to send you important information (including security-related information) for the use of a particular Product, it is your responsibility to update us with any changes to such contact information. We will not be liable for any damages resulting from your failure to notify us of a change in your email address and/or contact information in a timely manner.

3. YOUR AVIRA ACCOUNT

You will need to create an Avira-specific account (“Account”) in order to use some of our Products. You are responsible for any activity associated with your Account user ID and password. If you believe your Account is or may be compromised, you must notify us and change your password immediately. You may not create an Account if you are currently restricted or prohibited from having such an Account or using a particular Product.

With respect to our Avira Secure Backup Product, in the event you have not signed up for automatic renewal and do not renew your paid License, we will grant you a fifteen-day (15) grace period after the expiration of a respective License Term during which you will still have access to your Account. Following the initial grace period, your Account shall be disabled, but any data you backed up shall not be deleted, for a period of thirty (30) days. During the thirty-day (30) period, you will receive regular notifications stating that such data will be deleted on a specific date unless you renew the respective License Term. During the thirty-day (30) period, you may contact our customer support at any point to transfer your selected backed-up data to a free account. If you do not either (i) renew by the deletion date stated in the notice or (ii) contact our customer support to transfer your backed-up data to a free account, such data will be deleted and you will have to create a new Account. You may request, in writing, to have your backed-up data removed from our servers at any time and such request will be processed within seven (7) business days. If you do not explicitly request such removal, we may store your data exclusively for technical reasons up to a maximum of ninety (90) days after the termination or expiration of the License Term with respect to the Avira Secure Backup Product; provided, however, we will retain your account information as required for business operations and compliance with applicable laws.

With respect to our Avira Social Network Protection Product you must be the parent or legal guardian of the child or children for whom you desire to use the Avira Social Network Protection Product and associated website and must not use the Avira Social Network Protection Product with respect to any person who is 18 years of age or older, is married or is otherwise emancipated and who has not consented to your use of the Avira Social Network Protection Product with respect to them. You must delete from your Avira Social Network Protection Product account any child or children for whom you have been previously using the Avira Social Network Protection Product who becomes 18 years of age, becomes married or becomes otherwise emancipated, or rescinds their consent for you to use the Avira Social Network Protection Product in connection with them.

With respect to our Avira Answers Product, you may be able to register as a member of an expert community advising individuals who may be experiencing problems with their computer hardware and/or software (“Expert”). In order to register as an Expert, you must be a business, and must represent and warrant that the business is duly organized, validly existing and in good standing in the country in which the business is registered and that you, the individual in control of such Expert Account, have the requisite authority to act on behalf of the business. If you, subsequently, delete your Expert Account, information provided by you, will no longer be visible on Avira Answers (with the exception of certain information we retain for accounting purposes).

Nothing stated in these Terms shall limit our ability to cancel, suspend or terminate any of your Accounts in our sole discretion.

4. PRIVACY AND COLLECTION OF PERSONAL INFORMATION

For a detailed understanding of our privacy and how we treat your personal information, please visit www.avira.com/privacy. As a brief overview, we may collect, retain, and use specific data about you, your Device (as defined below) and your Device’s interactions with other Devices. Some of this information may include information that can be used to identify you, including without limitation, name, address, phone number, e-mail address, credit card information, facial image, voice sample or other biometric record (collectively, “Personal Data”) and may include sensitive data stored in files on your Device. Among other uses fully described in our privacy policy, the data we collect is used to provide, deliver, and support a particular Product and to inform you about Upgrades, new and existing Products, offers or other information. For these reasons you may not be able to opt out of some of this information collection other than by uninstalling the respective Product.

5. THIRD PARTY CONTENT, THIRD-PARTY TOOLS AND REMOTE ACCESS

If some of our Products display content, tools or functions that are not ours (“Third-Party Content”), such content is the sole responsibility of the party or entity that makes it available and we assume no responsibility whatsoever for it. If Third-Party Content is subject to special licenses, terms and/or conditions, you may need to agree to abide by such third-party terms and/or conditions in order to use the Third-Party Content. If you do not agree to such third-party terms and we incorporate Third-Party Content into one of our Products, you may no longer be able to properly use and/or fully access such Product. 

Some of our Products use features and applications that may allow you to grant someone access to information stored on and about your Devices (“Remote Access”). Such access is conditional upon you consenting to the Remote Access. Please remember that such features, while designed to be used in order to facilitate the use of certain Products and helping you resolve issues you may be experiencing with a particular Device, can provide other people with access to certain information stored on such Device, information about your Device and/or access to information on your Device. We assume no responsibility or liability for what happens to your Device(s) once you grant someone Remote Access.

Additionally, in conjunction with accessing and/or using some of our Products (including Products that require Remote Access), you may also obtain access to certain third party applications and/or tools (“Third Party Tools”). Avira assumes no responsibility whatsoever for use of such Third Party Tools. Furthermore, such Third Party Tools may be subject to special licenses, terms and/or conditions. By accessing and/or using such Third Party Tools, you agree to abide by any and all relevant licenses, terms and/or conditions associated with such Third Party Tools.

6. YOUR CONTENT

Some of our Products (for example, without limitation, the Avira Secure Backup and the Avira Social Network Protection) allow you to upload or submit or upload your own content to a community where you can communicate with other users (“Your Content”). If Your Content is, indeed, yours and you are not violating another party or entity’s intellectual property rights, you retain ownership of any intellectual property rights that you hold in Your Content. For purposes of clarification, the terms governing Your Content apply only to Products governed by these Terms and Your Content expressly excludes Feedback (as defined below). You are also solely responsible for the data and content stored via our Products. We will not inspect the data you store, except as unavoidable in order to provide support for your use of our Products or as allowed by applicable law. We may remove any illegal data.

You agree to follow these rules with respect to Your Content:

  • Your Content intended for display shall not include any content that is illegal, indecent, profane (including masked profanity where symbols, initials, intentional misspellings or other characters are used to suggest profanity), threatening, defamatory, invasive of privacy, victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of race, ethnicity, gender, religion, sexual orientation, age, or disability or is otherwise injurious to third parties, and that it shall not include software viruses, worms, malware, political campaigning, commercial solicitation, chain letters, mass mailings or any content commonly known as “spam”.
  • You shall not use a false e-mail address, impersonate any person or entity, or mislead as to the origin of Your Content.
  • You shall not submit any content that infringes in any manner on the patent, copyright, trademark or other intellectual property rights of any person or entity, or that contains any trade secret, confidential or proprietary information of any person or entity or that otherwise violates the legal rights of any person or entity.
  • We are not responsible for another user’s use, misuse or misappropriation of Your Content that you provide to us, to a community website or to another user via a community website.

In general, we reserve the right to deny access, remove, screen or edit any content which violates these Terms or which we find, in our sole discretion, otherwise objectionable.

Grant of Rights for Your Content to Avira. By submitting or sending Your Content to, or otherwise making Your Content available for display on or through any of the communities within a respective Product, you grant Avira a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and otherwise fully exploit Your Content (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed.

7. OWNERSHIP RIGHTS, LICENSE GRANT & USE RESTRICTIONS

Our Products are the key to our business and we take protecting our intellectual property rights (and those of our licensors) very seriously. Please read the information below as it explains your rights with respect to the Products including important information with respect to your ability to download and use a particular Product on multiple Devices.

Important Definitions: To explain the full meaning of certain terms used in this section, we want to define the following (please note, however, that the definitions below shall apply throughout these Terms and not exclusively to this Section):

  • Device: means any electronic device that is able to process data with the assistance of a programmable calculation specification.
  • License: means your right to use a respective Product subject to these Terms and the Terms and Conditions existing as of the date you are bound by the respective Terms and Terms and Conditions. The License shall stipulate the nature and scope of your right to use a particular Product. For Licenses that include access to an Update and/or Upgrade Service, such License also grants you the right to receive and use Updates and/or Upgrades during the License Term for a respective Product. To be clear, if a License does not include access to an Update and/or Upgrade Service you may only use the version of the Product, for which you have paid, for the respective License Term.
  • License Term: with respect to some of our Products, the License Term commences as soon as you have received access to the respective Product (for example, via a software key). With respect to some of our other Products, the License Term commences as soon as you create an account, install, access or use such Products. The License Term continues for the period we grant you a License for a respective Product and any extension and/or renewal of this period of time. 

Product Lifecycle: Our Products have a specific product lifecycle (“Product Lifecycle”) that governs the operating system on which a particular Product will be compatible and how long we will support such a Product. A particular Product may be incompatible with an operating system unless identified in the Product Lifecycle or once the support period for such operating system has expired. Our Product Lifecycle is published on www.avira.com/lifecycle and we encourage you to check it prior to purchasing or renewing a particular Product to ensure compatibility with your operating system.

License Grant: The Products are protected by international copyright laws, treaties and other laws. We, and our licensors, own and retain all right, title and interest in and to the Products, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights. These Terms and the Terms and Conditions do not transfer to you any title to or in the Products and you do not acquire any rights to any of the Products except as specified below. Conditioned on your continued compliance with these Terms and respective Terms and Conditions, we grant you a personal, revocable, limited, non-exclusive, non-transferable license for the Products for the duration of the License Term to activate, use and access the Products for personal or business purposes as expressly permitted in the respective Product Information Sheet. For Products for which no special Licenses for the simultaneous saving, storing and other simultaneous use of the Products across multiple Devices (“Multiple Use”) are available according to the relevant Product Information Sheet, the License is restricted to a single copy of the respective Product. In such a case, if you change the Device on which you are using or have installed a respective Product, you must delete any applicable software from the Device and reinstall it on your new Device. For Products whose Product Information Sheet provides for special Licenses for Multiple Use, Multiple Use shall be permissible only if, and to the extent that, you purchased and were granted the relevant type or number of Licenses by us.

Trial License and Freeware: A License to use our Products for trial purposes for a limited period of time (“Trial License”) or a License provided to you free of charge (“Freeware”), is provided  “as is” and does not include any product support. You may not use a Trial License in a production environment.

Updates and Upgrades: We may provide enhancements, modifications, revisions and/or new versions of a particular Product in form of an update or upgrade (“Update” and “Upgrade” respectively, the classification of which shall occur according to our sole discretion) free of charge or against payment in different frequencies and intervals (each and all an “Update and/or Upgrade Service”). If and when we provide Updates and/or Upgrades, you must download and install such Updates and/or Upgrades in order to obtain maximum benefit from the Product. Moreover, if you do not use the most recent version of the Product, the functionality of the Product may be reduced or impaired in whole or in part. For the purposes of ease-of-use and effective operation of our Products, you agree that particular Updates and/or Upgrades may be automatically installed with or without user interaction. We will not implement automatic installations which lead to a material change in the features of a Product, for which you have purchased a license, without your consent.

License Restrictions: The License granted to you is limited. To further clarify what we meant in Section 2 above, you may not use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license, sublicense, or commercially exploit the Products or any component thereof in any manner not expressly permitted by these Terms. In addition, you may not, or cause any third party to do so, (a) modify, translate, decompile, create any derivative work(s) of, copy, distribute, disassemble, broadcast, transmit, publish, remove or alter any proprietary notices or labels or copy protection features from any of our Products or (b) license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, private label, grant a security interest in, or otherwise use the Products in any manner not expressly permitted in these Terms and the Terms and Conditions.

You cannot use any of our Products in special risk areas that require error-free, permanent operation of relevant systems and in which the failure of a respective Product may result in a direct risk for life, body or health or in substantial damages to property or the environment (high risk and high availability activities, including, but not limited to, the operation of nuclear facilities, weapon systems, aviation navigation or communication systems, life support systems and equipment, machine and production processes of pharmaceuticals and food production). ANY VIOLATION OF THIS PARAGRAPH VOIDS ANY AND ALL WARRANTIES WE PROVIDE AND WE DO NOT WARRANT OR GUARANTEE THAT ANY OF OUR PRODUCTS ARE FIT FOR USE IN SPECIAL RISK AREAS. 

Third-party claims. You must notify us without undue delay if a third party asserts claims against you, claiming a respective Product infringed and/or infringes such third party’s intellectual property rights (Rechtsmangel), and any documents or correspondence or other forms you receive associated with such claim must be turned over to us immediately.

Feedback. We welcome your feedback and suggestions about our Products. By transmitting any suggestions, information, material, or other content (collectively, “Feedback”) to us, you represent that such Feedback does not violate the intellectual property of any third party and that you have all rights necessary to convey, and hereby do convey, to us the right to use such Feedback. In addition, any Feedback received through our Products will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for us to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, display (in whole or in part) and otherwise fully exploit the Feedback worldwide, or act on such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and you hereby waive any claim to the contrary.

8. INDEMNITY

You agree to defend, indemnify and hold Avira, its affiliates, subsidiaries, directors, officers, employees, agents, business partners and licensors (“Avira Indemnified Parties”) harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from: (a) any of Your Content you upload into one of our Products; (b) your violation of any rights of a third party; (c) your violation of any law or (d) your false, fraudulent, malicious or inaccurate representation of your identity.

Furthermore, you agree to indemnify the Avira Indemnified Parties harmless from any claim or demand, including reasonable attorneys’ fees, made by a third party, relating to or arising from your use of our Products in violation of these terms.  

9. TECHNICAL SUPPORT

With respect to some of our Products, at our sole discretion, we may offer technical support as fully detailed at www.avira.com/en/support. We provide such technical support without any warranty of any kind. Prior to obtaining such support, it is your responsibility to back up all of your existing data, software and programs. We may cease or suspend offering technical support with respect to a particular Product at any time.

10. MODIFYING OUR PRODUCTS

We are constantly improving and changing our Products. We may suspend or stop offering a particular Product or add or remove functionalities or features. We may perform such modifications without providing you with prior notice of such modification.

11. TERM AND TERMINATION OF OUR PRODUCTS

These Terms will continue to govern the relationship between you and us with respect to a particular Product until the expiration of your License Term or until they are terminated because you violate them, fail to pay the License fees, we are required to do so by law or we cease to offer a particular Product. The expiration of a term with respect to one Product does not automatically terminate these Terms with respect to another Product. 

You can stop using a particular Product at any time. If you signed up for automatic renewal of a particular Product, it means you would like to renew a License to such Product at the end of a particular License Term for the list price effective at the time of the renewal and you acknowledge that we may not notify you that a particular License Term is ending. If you do not want to renew, you need to give us 45 days’ notice prior to the end of a particular License Term and before the beginning of the next License Term so that we do not charge you. If we do end up charging you a License fee because you did not provide us with your notice of termination in time, you will have thirty (30) days after you were charged such fee to obtain a refund.

Once a License terminates or expires, your right to use a respective Product, Update or Upgrade, as applicable, ends immediately and you must remove any installed Product(s) (and any back-ups) from each respective Device(s). We may require you to provide written confirmation that you have, indeed, removed or destroyed the applicable material.

12. WARRANTIES AND DISCLAIMERS

Some of our Products may come with a limited warranty. Any of our paid Products include a limited warranty where we warrant that, for thirty (30) days from the date of purchase, such Product will operate substantially in accordance with the Documentation and that the media (e.g., CD ROM), if any, on which such Product was provided to you will be free from defects in materials and workmanship.

If you did not intentionally or accidentally cause the defect in the respective Product, your exclusive remedy for the breach of the foregoing limited warranty shall be, at our option, either (i) a return of the fee you paid; (ii) a replacement of the defective media on which the particular Product was provided to you; or (iii) receipt of a defective-free version of the respective Product by either us replacing the Product or fixing the underlying problem causing the defect. You must return any defective media to us or to the reseller that provided the media to you, at your expense, with a copy of your receipt.  THIS LIMITED WARRANTY IS VOID IF YOU CAUSED THE DEFECT, EITHER INTENTIONALLY OR ACCIDENTALLY.

EXCEPT FOR THE LIMITED WARRANTY THAT MAY APPLY TO SOME OF OUR PRODUCTS, AND/OR PARTICULAR PARTS THEREOF, OUR PRODUCTS ARE PROVIDED “AS IS” AND WE MAKE NO WARRANTY OF ANY KIND AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. WE ALSO EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES RELATING TO NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY OR ABILITY TO INTEGRATE A PARTICULAR PRODUCT WITH OTHER PRODUCTS. YOU ASSUME RESPONSIBILITY FOR SELECTING A PARTICULAR PRODUCT TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM SUCH PRODUCT. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY THAT OUR PRODUCTS WILL PROTECT AGAINST ALL POSSIBLE THREATS, BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES, THAT OUR PRODUCTS WILL MEET YOUR SPECIFIC REQUIREMENTS OR THAT OUR PRODUCTS ARE FIT FOR USE IN SPECIAL RISK AREAS.

13. OUR LIMITATION OF LIABILITY

You expressly absolve and release us from any claim of harm resulting from a cause beyond our control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars or governmental restrictions. UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR DAMAGES FROM LOST PROFITS, LOSS OF GOODWILL, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR NEGLIGENCE OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY OTHER DAMAGE OR LOSS. IN NO EVENT SHALL WE BE LIABLE FOR ANY DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUR OR A RESELLER’S AGGREGATE LIABILITY TO YOU FOR DIRECT DAMAGES UNDER THESE TERMS EXCEED THE PRICE YOU PAID FOR THE PARTICULAR PRODUCT.

THE PROVISIONS OF SECTIONS 12 AND 13 SHALL APPLY TO ANY USER AND AUTHORIZED RESELLER, AS APPLICABLE, OF OUR PRODUCTS AND SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

14. ADDITIONAL INFORMATION ABOUT THESE TERMS

We may suspend or stop providing our Products to you if you do not comply with these Terms, the Terms and Conditions, Product Information Sheet, Documentation or any additional terms that become part of these Terms or if we are investigating suspected misconduct.

The Terms do not create any third-party beneficiary rights. If you do not comply with the Terms and we do not take action right away, this does not mean we are giving up any rights that we may have (for example, our right to take action in the future). If it turns out that a particular term within these Terms is unenforceable, this will not have any impact on any of the other terms. Unless Section 15 applies, the laws of the State of California, without regard to its choice of law rules, will apply to any disputes arising out of or relating to these Terms or the Products. All claims arising out of or relating to these Terms or the Products will be litigated exclusively in the state or federal courts in Santa Clara County, California and you consent, and we consent, to personal jurisdiction in those courts. 

We may modify these Terms or any additional terms that apply to a Product to, for example, reflect changes to the law or changes to our Products. We will publish these revised Terms on our website, but will likely require you to accept the updated Terms. Such updated Terms will control the relationship between you and us. If you do not agree with a modification to these Terms, you may stop using our Products and be eligible for a refund, as applicable.

A breach, whether threatened or actual, of these Terms will cause us irreparable injury and such injury may not be quantifiable in monetary damages and we would not have adequate remedy at law. As such, we are entitled, in addition to all other available remedies, to seek and be awarded an injunction or other appropriate equitable relief for any breach of these Terms, whether threatened or actual.

Your use of our Product may be subject to export and re-export control laws and regulations, including, without limitation, the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce and sanctions programs maintained by the Treasury Department's Office of Foreign Assets Control. You shall not, directly or indirectly, sell, export, re-export, transfer, divert or otherwise dispose of any Products to any end-user without obtaining the required authorizations from the appropriate government authorities and/or regulatory bodies.

These Terms or your use of our Products does not create a joint venture, partnership, employment or agency relationship with us.

The provisions of Sections 5 through 8 and 11 through 15 and the similarly relevant parts of Section 15 will survive the termination of these Terms for any reason.

15. PROVISIONS UNDER GERMAN LAW

This section applies to you if you are located in any other jurisdiction than the United States and Canada. Your license is governed by the laws of Germany. For the purposes of Section 15, “Entrepreneur” means any natural person, partnership, corporation, limited liability company or other legal business entity that uses the Products for business purposes. Should you be an Entrepreneur, the exclusive jurisdiction is our registered seat. We reserve the right to sue you at your domicile.

Nothing in these Terms shall limit your right according to Sections 69 c no. 3, 69 d para. 2 and 3 and 69 e of the German Copyright Act (Urheberrechtsgesetzes). If you want to reverse engineer, decompile or disassemble a particular Product (hereinafter referred to as "Decompilation") for the purpose of achieving interoperability with other computer programs according to Section 69 e of the German Copyright Act, you shall contact us before Decompilation of the Product and request the provision of the respective information necessary for the achievement of such interoperability. If we supply such information without undue delay, you shall not be entitled to the Decompilation of the respective Product.

 

Section 9 (TECHNICAL SUPPORT) shall be replaced in its entirety by the following provisions:

With respect to some of our Products, at our sole discretion, we may offer technical support as fully detailed at www.avira.com/en/support. We provide such technical support without any warranty of any kind. Prior to obtaining such support, it is your responsibility to back up all of your existing data, software and programs. We may cease or suspend offering technical support with respect to a particular Product at any time. In the case that you have paid for the provision of technical support for a Product, and should we decide to suspend the offering of such technical support, you are advised that you may be entitled to receive a partial refund for such suspension. The refund you may be entitled to shall be proportional to the amount of time you have paid for technical support to be provided, how much you have paid, and the amount of time during which technical support for our Product is not provided by us.      

Section 10 (MODIFYING OUR PRODUCTS) shall be replaced in its entirety by the following provisions:

We are constantly improving and changing our Products. We may suspend or stop offering a particular Product or add or remove functionalities or features. We may perform such modifications without providing you with prior notice of such modification. Such modifications are undertaken by us for your benefit and for the purpose of us providing high-quality products and also product-use experience. In case a modification by us of our Products materially disadvantages you, we advise you that you are entitled to rescind and/or terminate these Terms. In case you rescind or terminate these Terms, you are obliged to stop using the product immediately and delete it from your system. If you are using a premium Product, for which you have paid, you may be entitled to partial refund of the original purchase price of such.      

Section 12 (WARRANTIES AND DISCLAIMERS) shall be replaced in its entirety by the following provisions:

Unless expressly agreed otherwise, the Products we provide shall be in line with the current state of the art technology and shall conform to all relevant product information and specifications we provide, including those in the user handbooks. We do not warrant that the Products covered in these Terms will be fit for purposes beyond the fulfilment of our obligations under the agreement.

You are advised that based on the current state of the art technology, program errors cannot be excluded with complete certainty in spite of exercising the greatest conscientious care and diligence and that it is not possible to develop a Product that detects all existing viruses or other malware.

If you are an Entrepreneur and we have provided you with a paid-for Product with a License for a unlimited period, we shall rectify defects in such Product as follows, provided you have notified us of the respective defect in accordance with Section 377 of the German Commercial Code (Handelsgesetzbuch):

  • In our sole discretion, defects of which we have received notice, shall be rectified through either the elimination of the defect ("Repair") or provision of a defect-free Product ("Substitute Delivery") at our expense.
  • If the defects in a Product cannot be rectified within a reasonable period or if Repair and Substitute Delivery are deemed to have failed for other reasons, then you may, at your choice, reduce the fee or - if the defects are not immaterial - rescind these Terms.
  • Any damage claims by you or claims for expenses incurred in vain (Ersatz vergeblicher Aufwendungen) that arise from such defects shall be governed exclusively by Section 13.

If we have provided you with a paid-for Product with a limited License, we shall rectify the defects in such Product within a reasonable period after receipt of a notice of such defect. In our sole discretion, we shall rectify such defects by either Repair or Substitute Delivery at our expense. Your right to reduce the fee for the time of the defect remains unaffected. You are only entitled to an extraordinary termination of these Terms due to the failure to grant use in accordance with the Terms if we have been given sufficient opportunity to rectify the defect and have failed to do so.

In no event shall you be entitled to demand the source code for any of our Products with respect to any defects.

In case of legitimate claims by third parties, we will indemnify you for the costs originating from the assertion of such third party's claims (including reasonable attorney fees, limited to the statutory remuneration of attorneys, as applicable). Furthermore, our liability for loss of profits due to such defects is limited to five times the License fee amount, except where the defects were caused by our intentional or gross negligent behaviour.

If you are an Entrepreneur and you have been provided you with a License to a particular Product for an unlimited period, your warranty claims for defects within the respective Product shall lapse after one year from the statutory commencement of the limitation period, except in cases of our grossly negligent or intentional behaviour. The statutory limitation pursuant to Section 479 of the German Civil Code (Bürgerliches Gesetzbuch) remains unaffected hereby.

Section 13 (OUR LIMITATION OF LIABILITY) shall be replaced in its entirety by the following provision:

Notwithstanding the legal nature of the relevant claim, the following shall apply to your damage claims and claims for expenses incurred in vain (Ersatz vergeblicher Aufwendungen):                                                                                                                   

  • We shall be liable for any of your damages resulting from our grossly negligent or intentional behaviour, which results in culpable injury to life, body and health and arise pursuant to the assumption of a guarantee or according to the German Product Liability Act (Produkthaftungsgesetz). In all other cases our liability for damages is limited to the infringement of the material obligations of these Terms. Material obligations are only such obligations which must be met for proper fulfilment of the agreement in the first place and where you may rely on the fulfilment of such obligations. Our liability for the loss of data is limited to the typical expenditures required for the restoration thereof, which are normal and typical if security copies have been made. Reference is made to your obligation to perform regular data-backups pursuant to Section 2 of these Terms.
  • Our liability in case of our negligent infringement of material obligations of these Terms shall be limited to foreseeable damages which are typical for this type of contract.
  • Our strict liability for defects existing at the time of entering into these Terms pursuant to Section 536 a para. 1, alternative 1 of the German Civil Code is hereby expressly excluded.
  • The foregoing limitations of liability also apply with regard to all of our representatives, including but not limited to our directors, legal representatives, employees and other vicarious agents.

Section 14 (ADDITIONAL INFORMATION ABOUT THESE TERMS) shall be replaced in its entirety by the following provision:

Suspension of Provision of Products for Breach and/or Alleged Misconduct.

We reserve the right to temporarily suspend and/or stop providing our Products to you if you do not comply with these Terms, the Terms and Conditions, Product Information Sheet, Documentation or any additional terms that become part of these Terms. We reserve the right to temporarily suspend and/or stop providing our Products to you if we are investigating suspected misconduct.

No Waiver, Venue, Choice of Law

The Terms do not create any third-party beneficiary rights. If you do not comply with the Terms and we do not take action right away, this does not mean we are giving up any rights that we may have (for example, our right to take action in the future). If it turns out that a particular term within these Terms is unenforceable, this will not have any impact on any of the other terms. The laws of the Federal Republic of Germany, without regard to its choice of law rules, will apply to any disputes arising out of or relating to these Terms or the Products. All claims arising out of or relating to these Terms or the Products will be litigated exclusively in the regional courts (Landgericht) of Munich I, Germany and you consent, and we consent, to personal jurisdiction in those courts.  

Unalienable Consumer Rights

Nothing in these Terms purports or assumes to limit any of your statutory rights, as set forth by mandatory consumer protection legislation, in the jurisdiction in which you happen to reside. In some jurisdictions, the aforementioned limitations of liability and exclusion of liability, given the overriding principles of consumer protection, may only be partially valid or, in some cases, not valid at all.  

Modification of Terms

We may modify these Terms or any additional terms that apply to a Product to, for example, reflect changes to the law or changes to our Products. We will publish these revised Terms on www.avira.com/legal, but will likely require you to accept the updated Terms.  Such updated Terms will control the relationship between you and us. If you do not agree with a material modification to these Terms, you are obliged to inform Avira without undue delay. In a case in which you do not agree with a unilateral material modification by us of these Terms, you are advised of your right to rescind these Terms or to terminate the contract. If you do decide to rescind these Terms or terminate the contract, you must stop using our Products immediately and remove them from all of your Devices, and you may be eligible for a refund of the purchase price paid.

You will not be eligible to rescind these Terms, terminate the contract, or to receive a partial refund if the unilateral modification of the terms, by us, is not material in nature.   

Equitable Remedies

A breach, whether threatened or actual, of these Terms could cause us irreparable injury and such injury may not be quantifiable in monetary damages and we would not have adequate remedy at law. As such, we are entitled, in addition to all other available remedies, to seek and be awarded an injunction or other appropriate equitable relief for any breach of these Terms, whether threatened or actual. You, as a consumer may also be entitled to seek equitable relief. Nothing in these Terms shall be deemed as repressing such rights.

Export Restrictions

Your use of our Product(s), distribution of our Product(s), and resale of our Products, when authorised by us, may also be subject to export and re-export control laws and regulations, including, without limitation , export regulations of the Federal Republic of Germany, European Union export regulations, and also the Export Administration Regulations (“EAR”) maintained by the United States Department of Commerce and sanctions programs maintained by the Treasury Department's Office of Foreign Assets Control. You shall not, directly or indirectly, sell, export, re-export, transfer, divert or otherwise dispose of any Products to any end-user without obtaining the required authorizations from the appropriate government authorities and/or regulatory bodies.

These Terms or your use of our Products does not create a joint venture, partnership, employment or agency relationship with us.

The provisions of Sections 5 through 8 and 11 through 15 and the similarly relevant parts of Section 15 will survive the termination of these Terms for any reason.

 

Avira, Inc. | 330 Primrose Rd | Burlingame CA 94010 | United States of America

Avira Operations GmbH & Co. KG | Kaplaneiweg 1 | 88069 Tettnang | Germany

August 19, 2014