- USING OUR PRODUCTS
- YOUR AVIRA ACCOUNT
- PRIVACY AND COLLECTION OF PERSONAL INFORMATION
- YOUR CONTENT
- OWNERSHIP RIGHTS, LICENSE GRANT & USE RESTRICTIONS
- 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.
- TECHNICAL SUPPORT
- MODIFYING OUR PRODUCTS
- TERM AND TERMINATION OF OUR PRODUCTS
- WARRANTIES AND DISCLAIMERS
- OUR LIMITATION OF LIABILITY
- ADDITIONAL INFORMATION ABOUT THESE TERMS
- PROVISIONS UNDER GERMAN LAW
- 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 11.
- 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 1 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.
You must comply with all policies that are made available to you in conjunction with our Products. 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.
We may suspend or stop providing our Products to you if you do not comply with these Terms, Terms and Conditions, Product Information Sheet, Documentation or any additional terms that become part of these Terms or if we are investigating suspected misconduct.
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 our Products does not give you ownership of any intellectual property rights in or to our Products 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.
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 agree to abide by theses third-party terms and/or conditions.
You are responsible for setting up and maintaining a functional hardware and software environment. Regular data backup within your EDP system shall, also, be your responsibility.
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.
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.
We may collect, retain, and use specific data about you, your Device (as defined below) and your Device’s interactions with other Devices (for example, Device ID, Device Internet Protocol (“IP”) address, location, content, language preferences, Device IMEI code, Device brand and model, battery status, version of Device operating system, Device phone number, SIM number, network provider name, memory status, geo-information based on GPS/WIFI/Network location and any other technical information needed to provide our Products to you properly). Some of this information may include information that can be used to identify you, including without limitation, name, address, phone number, e-mail address, social security number, 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. We also may transfer your Personal Data to other countries where we or our Product providers have facilities.
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.
Some of our Products (for example, Avira Secure Backup) allow you to upload or submit your own content (“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.
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 numerous 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):
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 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 the 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 numerous 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. You agree that particular Updates and/or Upgrades may be automatically installed with or without user interaction.
License Restrictions: The License granted to you is limited. To further clarify what we meant in Section 1 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 (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 may not remove any proprietary notices, serial numbers, labels or copy protection features from any of our Products. 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.
You agree to defend, indemnify and hold Avira, its affiliates, subsidiaries, directors, officers, employees, agents, business partners and licensors 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 use of our Products in violation of these Terms; or (c) your violation of any rights of a third party.
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.
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.
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 term and before the beginning of the next term so that we do not charge you. If we do end up charging you because you did not provide us with your notice of termination in time, don’t worry, we will refund the amount we charged for the renewal of the respective License for thirty (30) days after you were charged the License fee for the next License Term.
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.
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.
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 10 AND 11 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.
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 13 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.
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 4, 5, 6, 9 through 12 and the similarly relevant parts of Section 13 will survive the termination of these Terms for any reason.
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 13, “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 10 (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 perpetual License, 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):
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 the defect is persisting 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.
A Repair or Substitute Delivery will be considered as “failed” only if we have been given sufficient opportunity to effect a Repair or Substitute Delivery without achieving the desired result or if we unjustifiably refused to either provide the Repair or provide Substitute Delivery. If rectification of a defect in the form of Repair or Substitute Delivery is only possible for us at unreasonable expense, we may refuse to rectify the defect and refer you to your right to rescind or terminate these Terms.
In no event shall you be entitled to demand the source code for any of our Products with respect to any defects.
You shall notify us without undue delay if a third party asserts claims against you based on infringement of intellectual property rights by any of our Products (Rechtsmangel) and any associated information whether provided as written documents or correspondence or in other forms, shall be provided to us without undue delay. 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 we have provided you with a perpetual License to a particular Product, 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 11 (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):
Avira, Inc. | 330 Primrose Rd | Burlingame CA 94010 | United States of America
Avira Operations GmbH & Co. KG | Kaplaneiweg 1 | 88069 Tettnang | Germany
September 17, 2013