Standard Terms and Conditions of Business of Avira Limited - Updated: October 2011

  1. Scope of the Standard Terms and Conditions of Business
    1. The standard terms and conditions of business set out below (hereinafter referred to as "Terms") shall apply to any and all agreements by Avira Limited, Unit 2212-13, Tower Two, Times Square, 1 Matheson Street, Causeway Bay, Hong Kong (hereinafter referred to as “Avira”) with its Customers concerning the delivery of its Products and/or Services, in particular, the provision of Software and its Updates/Upgrades, Managed Services and the rendering of related Services.
    2. These Terms shall apply to both Entrepreneurs and Consumers.
    3. If the Customer is an Entrepreneur, these Terms shall also apply to any and all future agreements between Avira and the Customer without any further reference to them.
    4. In addition to these Terms, the EULA shall be applicable to any use of Products and in case of Services the respective SLA shall be applicable in addition to these Terms. In case of conflict between these Terms and the EULA and/or the respective SLA, the provisions of these Terms shall prevail.
    5. These Terms apply exclusively and shall prevail over any other general terms and conditions of the Customer without any reservations even if the same has been communicated to Avira except where Avira has approved those in writing. These Terms also apply in cases where Avira provides its Products and/or Services to the Customer without any reservations and in knowledge of the contradicting or differing terms of the Customer.
    6. Avira reserves the right to change, update, amend or modify these Terms at any time. Such changes will be notified to the Customer in writing (email will be sufficient). The Customer may object to the notified changes. If the Customer does not object to the notified changes or any part thereof within four (4) weeks after receipt of the notification (hereinafter referred to as "Objection Period"), the notified changes are considered to be accepted unequivocally by the Customer. If the Customer objects to the notified changes within the Objection Period, the agreement will continue on the present Terms. Objections, notifications and other notices by the Customer to Avira shall be sent to the address at the end of these Terms.
  2. Definitions
    The following definitions shall apply for the scope of these Terms:
    1. Access - means access to a Service by use of a browser and with the aid of a Login.
    2. Automatic Renewal - means renewal of a Licence Term without notice.
    3. Avira Freeware - means any and all Products and Services that are provided to the Customer free of charge.
    4. Avira Shareware - means any and all Products and Services that are provided to the Customer free of charge for trial purposes for a limited or unlimited Licence Term.
    5. Computer - means any device that is able to process data with the assistance of a programmable calculation specification.
    6. Consumer - means any natural person who is provided with any Products or Services of Avira for personal use or for use involving his/her family.
    7. Customer - means a Consumer and/or Entrepreneur.
    8. Entrepreneur - means any natural person, legal entity or partnership having legal capacity that is not engaged in personal or familial usage in ordering or receiving Products or Services of Avira while performing its commercial or independent professional or other work.
    9. EULA - means the End User Licence Agreement of the respective Avira entity, which has to be accepted by the Customer before any use of the Products. It defines the Customer‘s rights of use for the respective Products under the relevant agreement and which is available for download on www.avira.com.
    10. Fee - means the price or the Licence fee to be paid for Products and Services of Avira.
    11. Licence - means the Customer‘s right to use the Products or Services subject to these Terms and in accordance with the EULA or SLA applicable as at the date of conclusion of the relevant agreement. The Licence shall stipulate the nature and scope of the right to use the Products or Services. For those Avira Products for which an Update Service is provided, the Licence shall also constitute the Customer‘s right to receive ongoing Updates/Upgrades during the Licence Term for the provided Software.
    12. Licence Term - means the period for which a Licence to a Product or Service has been granted. The Licence Term commences as soon as the Customer has received the Software Key or the Login.
    13. Login - means the entering of identifier information into a Managed Service by a Customer in order to access that Managed Service. By sending the respective Login, Avira grants the Licence to the Customer.
    14. Malware - means any software and any other dataset that causes damaging or undesirable functions in the Computer or in the system of a user.
    15. Managed Service - means a software application managed by Avira and deployed to Customer over the Internet with the aid of a Login.
    16. Multiple Use - means simultaneous storage, simultaneous retention and any other simultaneous use of Avira's Products on several Computers and any use of such products for which special Licences for Multiple Use are provided according to the respective product information.
    17. One-Time-Code (OTC) - - means a sequence of numbers, letters and/or other symbols that must be entered into the Computer for some Software of Avira during their initial installation. In such cases, the respective Licence shall be granted by Avira with the aid of the OTC. Upon entering a valid OTC, the Customer shall receive the Software Key, and the Licence Term shall commence.
    18. Product - means Avira Software including the respective Update Service and user handbooks or other goods by Avira.
    19. Reseller - means a Customer to whom Products or Services are provided expressly for the purpose of resale.
    20. Service - means Managed Service or other related services provided by Avira.
    21. SLA - means the Service Level Agreement of the respective Avira entity, which has to be accepted by the Customer before any use of the Services. It defines the Customer’s rights of use for the respective Services under the relevant agreement and is available for download on www.avira.com.
    22. Software - means Avira computer programs in their object code, including any and all Updates and Upgrades thereof that Avira makes available and for which Avira has granted a Licence to the Customer.
    23. Software Key - means an encrypted code that identifies the provided Software and is necessary for installation and access to Updates/Upgrades. The Software Key is an integral component of the Software. By sending the respective Software Key, Avira grants the Customer the Licence.
    24. Support - means a Service which Avira offers to Customers inquiring for help desk support for Products or Services.
    25. Updates and Upgrades - mean the updating of the Software. Classification of the updating as an Update or Upgrade is at Avira‘s sole discretion.
    26. Update Service - means the ongoing updating of a Software through Updates and/or Upgrades and the provision of such Updates and Upgrades to the Customer by Avira. Some Software requires the Update Service for functional use. Avira may at its sole discretion render services under its Update Service as an Update or Upgrade.
  3. Offer and conclusion of the agreement
    1. The presentation of Avira‘s Products and Services on the internet and in prospectuses, catalogues and brochures shall serve to inform the Customer only. They shall not constitute any binding offer by Avira, but rather an opportunity for the Customer to make a binding contractual offer in the form of an order.
    2. A legally binding agreement between Avira and the Customer shall be concluded if the Customer places an order and Avira accepts such order by way of a written order confirmation (email will be sufficient) or provision of the Products and/or Services to the Customer (e.g. per download or by provision of a Login).
    3. Any and all orders accepted by Avira are subject to these Terms and the applicable EULA and/or applicable SLA.
    4. Should the Customer be entitled to withdraw from the agreement based on any applicable statutory withdrawal right and should the Customer perform this right within the relevant statutory period, the EULA and/or the SLA shall be withdrawn at the same time. In case of such withdrawal Avira will refund the Customer any Fees that have already been paid for the respective Product or Service according to any applicable statutory provisions. In this context, the Customer is not entitled to apply for or initiate a return debit note with its bank. In case of non-compliance, Avira will reclaim the additional costs for such return debit note which is charged by Customers' bank from the Customer.
    5. Any deviations from and modifications to these Terms must be expressly agreed between the parties in writing. For Avira these shall only be valid, when executed by authorized Avira employees jointly by two in writing or by single signature when authority for sole representation is granted by entry into the commercial register.
  4. Subject matter of the agreement
    1. The subject matter of agreements which are concluded subject to these Terms between the Customer and Avira shall be the Customer’s rights to use Avira's Products and/or Services in accordance with these Terms and the EULA and/or the SLA. Upon payment of the agreed Fee, the Customer shall be granted with these rights of use.
    2. For Software for which an Update Service is available, the Licence shall include:
      1. a non-exclusive, non-transferable (with the exception of clause 5. below) right to use the Software free of charge for the Licence Term, and
      2. a right to access the Update Service during the Licence Term against payment.
    3. For Managed Services and Software for which no Update Service is provided, the Licence shall include a non-exclusive, non-transferable (with the exception of clause 5. below) right to use the Managed Services or the Software against payment for the Licence Term.
    4. Any and all other rights in the Products and Services, in particular the title (except where the Products are provided in perpetuity and against payment), and any and all other rights of publication, reproduction, processing, translation and other exploitation rights, shall be retained by Avira.
    5. After an agreement has been withdrawn, rescinded or terminated, the Customer’s Licence for the Products or Services shall be terminated. The Customer shall receive no further Updates/Upgrades from Avira and will not be granted further Access to systems or receive Services. The Customer shall dispose of all Software, in particular, the original data carriers, any backup copies and the Software data files stored on its Computer system. Avira may demand written confirmation by the Customer declaring that the data has been deleted in full.
    6. Software has a specific product lifecycle indicating the operating systems with which the Software is compatible and until when these are supported by Avira. Software is possibly not compatible with operating systems which are not specified in the product lifecycle or once the support period has expired. The product lifecycle constitutes therefore an integral part of the relevant agreement and is published on www.avira.com.
    7. Provisions for the use of the Software and Managed Service:
      1. In using the Software and/or Managed Service, the Customer shall at all times comply with these Terms as well as the terms of use under the EULA and/or SLA applicable at the time of conclusion of the agreement. In particular, the Software must not be reproduced, passed on or decompiled (i.e. recompilation into the source code), unless expressly permitted by the EULA or permitted according to Sec. 60 and 61 of the Copyright Ordinance (Cap. 528). If the Customer wishes to reverse engineer, decompile or disassemble the Software (hereinafter referred to as "De-compilation") for the purpose of achieving interoperability with other computer programs, the Customer shall contact Avira before De-compilation of the Software and request the provision of the respective information necessary for the achievement of such interoperability. If Avira supplies such information without undue delay, the Customer shall not be entitled to the De-compilation of the Software.
      2. A Software for which no special Licences for Multiple Use are available according to the relevant product information is restricted to the use on one Computer by Customer. For this purpose, the Customer may use any Computer available that meets the system requirements and for which the Licence was granted. Should the Customer change the Computer, the Software must be deleted from the Computer on which the Software was previously installed before the reinstallation of the Software on the new Computer. For Software whose product information provide special Licences for Multiple Use, Multiple Use shall be permissible only if and to the extent that the Customer was granted the relevant type or number of Licences by Avira.
      3. Unless explicitly granted in the respective Licence, Customer shall not have the right to access Managed Services by simultaneous or multiple use of the same Login.
      4. Avira reserves all rights on any claims or actions resulting from any unauthorised use of Products and/or Services by the Customer, including but not limited to, copyright claims and compensatory damages claims. Unauthorized use by the Customer may lead to criminal prosecution under the relevant laws. The provisions of this clause 4.7.4. concerning reproduction and disclosure shall apply mutatis mutandis for the user handbooks and other documents pertaining to the Software provided by Avira. Reference is also made to the supplementary terms and conditions of use under the EULA and/or the SLA.
  5. Special provisions for Resellers
    1. If Products and/or Services are provided to a Reseller, the Reseller may pass the Licence on to a third party. In the event of a resale, the serial numbers issued by Avira (e.g. Licence numbers, OTCs or Logins) shall be stated in the invoice.
    2. The Reseller shall not grant to its Customers any rights in the Products and/or Services other or further than those permitted pursuant to these Terms, the EULA and the SLA.
    3. The Reseller shall not reproduce the Products and/or Services in whole or in part, including for purposes of data backup.
    4. For each culpable breach of the foregoing provisions of this clause 5. and without recourse to denial of continuation of offence the Reseller shall pay to Avira liquidated damages in the amount of EUR 15,000. The parties confirm that this sum represents a genuine pre estimate of the loss that Avira would suffer in the event the Reseller breaches this section 5. Additional claims by Avira part resulting from the breach of these provisions remain unaffected. The liquidated damages will be set off against the damage claims of Avira resulting from the respective breach.
  6. Delivery
    1. Avira’s delivery obligation shall be governed only by (i) Avira's order confirmation, (ii) these Terms, (iii) the EULA and/or the SLA (as applicable) unless agreed otherwise between the parties in writing. Avira may render partial deliveries where a partial delivery is reasonable for the Customer and does not significantly impair the Customer's interests.
    2. Deviations of the delivered Products and/or Services from the documentation shall be permitted provided they are reasonable and acceptable for the Customer and the material performance of the Product or Service required under the relevant agreement is met in full. Avira reserves the right to make technical changes to the Products and/or Services which enhance their operability and performance or which are necessary for the operability of the Products and/or Services.
    3. Should the ordered Products and/or Services be replaced by new Products and/or Services in Avira’s product range, and such new Products and/or Services render the qualities required under the relevant agreement just as well or better, Avira has the right to deliver such new Products and/or Services instead of the ordered Products and/or Services.
    4. Should Products and/or Services of Avira be shipped at the Customer’s request, the risk for damage and loss shall pass to the Customer upon release for shipment by Avira. In the event of downloading of the Software, such risk shall pass to the Customer as soon as it has received the necessary Software Key.
    5. Should the performance be delayed beyond the date confirmed by Avira, rights for late performance may only be asserted following the expiry of a reasonable grace period of no less than three weeks set by the Customer, unless the Customer proves that interest of the Customer has lapsed entirely due to the delay. Should Avira be in default with its delivery or should delivery become impossible for Avira, Avira shall only be liable subject to clause 10. and 11. below. If timely delivery is prevented by circumstances that are not just temporary and that do not fall within Avira’s scope of influence (in particular, in the event of strike, lock-out, unavailability of materials, force majeure, transport hindrances, plant closures or unavailability of internet connection), Avira or the Customer may rescind the agreement if they cannot be expected to be bound by the agreement any longer, without giving rise to any obligation to render compensatory damages to the other party.
  7. Automatic renewal
    Access to Managed Services is granted for the selected Licence Term. Unless terminated by either Party at least 30 days prior to the end of the current Licence Term, the Licence Term will be renewed automatically at the then effective listprice. The new Licence Term will have the same run-time as the previous Licence Term.
  8. Remuneration and payment terms
    1. Unless expressly agreed otherwise, Avira’s Fees are net free place of shipment, and all shipping costs, in particular, packaging, transport costs and transport insurance as well as the applicable statutory value added tax - if any - shall be paid by the Customer.
    2. Payments shall be due immediately without any deductions. Bills of exchange and cheques shall be accepted only subject to special agreement and only subject to the condition that these do not give rise to any costs and fees for Avira.
    3. Should the Customer be in default with its payment, Avira may demand agreed or statutory default interest without notice.
    4. During default in payment by the Customer, Avira may withhold its deliveries to the Customer which are based on the same legal relationship, including Updates and Upgrades.
      Reference is hereby made to the consequences of a failure to install Updates/Upgrades, in particular, impairment of the protective function of the Software (in this respect, see also clause 9.1. below)
    5. The Customer may only set off claims of Avira if the Customer’s respective counterclaims are uncontested or confirmed in a final and binding judgment. The Customer has a right of retention only insofar as its counterclaims are based on the same legal relationship.
  9. Customer’s duties
    1. Due and proper use of the Software requires receipt of a Software Key from Avira or one of its authorised Resellers and installation of all Updates/Upgrades for the respective Software by Customer. If the Customer has not installed the current Updates/Upgrades of Avira, the Software’s protection against computer viruses and other Malware may be materially impaired. Installation of the Software and its Updates/Upgrades as well as regular downloading of the full and current Updates/Upgrades shall be the Customer‘s sole responsibility.
    2. The Customer shall familiarize itself with the key functions of the Software or Service. The Customer shall bear the risk as to whether the Software or Service meets the individual requirements and needs of the Customer. The setup of a functional hardware and software environment for the Software or Service subject to the relevant agreement shall be the sole responsibility of the Customer. The same shall apply to regular data backup within the Customer’s EDP system.
    3. The Customer shall comply with Avira’s advice concerning installation of the Software, updating thereof by way of Updates/Upgrades and its operation. The Customer shall regularly consult Avira's website (www.avira.com) as to Avira's current advice and shall take this into account while operating the Software.
    4. The Customer shall install the Software at its own responsibility and cost. This shall also apply if certain Updates/Upgrades and releases require a new installation of the Software during the agreed Licence Term.
    5. The Customer shall notify Avira in writing any defects of the products provided within a reasonable time after having discovered the said defects.
    6. The Customer shall notify Avira without undue delay of any changes to its email address in order for Avira to be able to send the Customer security-relevant information for the use of the Software or Services. Avira shall not be liable for any damages resulting from Customer's failure of such notification.
  10. Warranty and Limitations
    1. Unless expressly agreed otherwise, the Products provided by Avira as well as Avira’s Services shall be in line with the current-state-of-the-art technology and shall conform to all relevant product information and specifications provided by Avira, including those in the user handbooks. Avira does not warrant that the Products and Services under the agreement will be fit for purposes beyond the fulfilment of Avira's obligations under the agreement.
      The Customer is advised that based on the current-state-of-the-art technology program errors cannot be excluded with complete certainty in spite of exercising greatest conscientious care and diligence and that it is not possible to develop Software or Services that detects any existing virus or other Malware.
    2. The Products shall not be used in special risk areas that require error-free, permanent operation of relevant systems and in which the failure of the Products may result in a direct risk for life, body or health or in substantial damages to property or the environment (high risk activities 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). Avira does not warrant or guarantee that the Products are fit for the use in special risk areas.
    3. If Avira has provided the Customer with the Product against payment and in perpetuity, defects in the provided Product, that are discovered by the Customer within a period of 12 months ("Warranty Period"), shall be rectified by Avira at Avira's option, as follows, provided the Customer has notified Avira of the respective defect in writing, within a reasonable time of discovering the said defect:

      1. Notified defects shall be rectified by Avira’s choice through elimination of the defect ("repair") or provision of a defect-free Product ("substitute delivery"). Costs for such rectification shall be borne by Avira. The Customer agrees to provide Avira with reasonable assistance to enable Avira to remedy the said defect, including access to the relevant Computer.
      2. If the defects in Products cannot be rectified within a reasonable period or if repair and substitute delivery can be deemed to have failed for other reasons, then the Customer may, at its choice, reduce the Fee or – if the defects are not immaterial – rescind the agreement.
      3. Any damage claims of the Customer or claims for expenses incurred in vain that arise from such defects shall be governed exclusively by clause 11.
    4. If Avira has provided the Customer with the Product against payment but for a limited period of time, defects in the Product during the Warranty Period, shall be rectified by Avira within a reasonable period after notification of the defect. The rectification of defects shall be effected, at Avira’s choice, by way of repair or substitute delivery free of charge. The Customer agrees to provide Avira with reasonable assistance to enable Avira to remedy the said defect, including access to the relevant Computer. If the defects cannot be rectified within a reasonable period or if repair and substitute delivery are reasonably deemed by Avira to have failed for other reasons, then Avira, at its option, may reasonably reduce the Licence fee to an amount agreed between the parties in writing. The Customer is only entitled to terminate the agreement if Avira has failed to make any attempt to remedy the defect within a reasonable time, after receiving written notice thereof from the Customer.
    5. It shall be assumed that the repair or substitute delivery has failed only if Avira has been given sufficient opportunity to effect a repair or substitute delivery without achieving the desired result or if the repair or substitute delivery was unjustifiably refused by Avira. If rectification of a defect in the form of repair or subsequent delivery is only possible for Avira at unreasonable expenses, Avira may refuse to rectify the defect and refer the Customer to its right to rescind or terminate the agreement.
    6. Notwithstanding any provision to the contrary, nothing in clause 10.3. or 10.4. shall apply to any defects, errors or malfunctions in the Product which are caused directly or indirectly by the fault of the Customer, and/or the Customer's employees, sub-contractors or agents (if applicable), including, but not limited to, the Customer's breach of clause 9. of the Terms, the Customer (or anyone acting with the authority of Customer) having amended the Products or having used it outside the Terms or the EULA, for a purpose or in a context other than the purpose or context for which it was designed, or in combination with any other software or computer programs not provided by Avira, or for reasons outside the reasonable control of Avira.
    7. No warranty shall be provided for Avira Freeware or other Products and/or Services granted by Avira free of charge, except for the operability of the Software. Any liability for damages or expenses incurred in vain on the part of Avira shall be subject to clause 11. hereinafter. The same shall apply for Avira Shareware, as long as there is no agreement with the Customer for the unconditional provision of a Software Key or Login against payment.
    8. In no event shall the Customer be entitled to demand the source code for the Software and/or Managed Services in regard to any defects.
    9. The Customer shall notify Avira without undue delay if a third party asserts claims against the Customer based on infringement of intellectual property rights by the Product and/or Managed Service. Should there be any information of such, whether in written documents or correspondence or in other forms, the Customer shall provide these to Avira without undue delay. In case of legitimate claims by third parties Avira will indemnify the Customer of the costs that originate from the assertion of such third party's claims (including reasonable attorney fees, limited to the statutory remuneration of attorneys if applicable). Furthermore, Avira’s liability for any loss or damages suffered as a result Avira shall be governed by clause 11. below.
    10. If the Customer is an Entrepreneur and the Product of Avira has been provided in perpetuity, the Customer's warranty claims for defects of the product lapse after one year from the statutory commencement of the limitation period, except in cases of intentional behaviour of Avira.
    11. Except as expressly set out in the Terms, Avira provides no other representations and/or warranties in regards to the Products and/or Services, or any other matter arising under or in relation to these Terms, and to the fullest extent permitted under Hong Kong law, all warranties, conditions and other terms implied by statute or common law shall be expressly excluded.
  11. Liability for damages
    Notwithstanding the legal nature of the relevant claim, the following shall apply to the Customer’s damage claims and claims for expenses incurred in vain:
    1. To the fullest extent permitted under Hong Kong law, Avira shall not be liable to the Customer, whether under contract, tort (including negligence), or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with any agreement, the Terms, or the Products and/or Services provided by Avira.
    2. To the fullest extent permitted under Hong Kong law, Avira's total liability to the Customer, whether under contract, tort (including negligence) or otherwise, in respect of any loss or damages arising under or in connection with any agreement, the Terms, or the Products and/or Services provided by Avira, shall not exceed the total amount paid by the Customer for the relevant Products and/or Services that are the subject matter of the dispute in question.
    3. In accordance with section 11(2) of the Control of Exemption Clauses Ordinance (Cap. 71), if the Customer is a Consumer then nothing in this section 11. shall limit or exclude Avira's liability for breach of sections 15, 16 or 17 of the Sale of Goods Ordinance (Cap. 26).
    4. Nothing in this section 11. shall limit or exclude Avira's liability for: (i) death or personal injury caused by Avira's negligence, or the negligence of its employees, agents or subcontractors; (ii) fraud or fraudulent misrepresentation on the part of Avira; or (iii) breach of section 14 of the Sale of Goods Ordinance (Cap. 26).
    5. The foregoing limitations of liability also apply in regard to all Avira's representatives, including but not limited to its directors, legal representatives, employees and other vicarious agents.
  12. Retention of title, transfer by way of security
    Should a Product of Avira be provided to the Customer against payment and in perpetuity, the following shall apply:
    1. The risk in the Products shall pass to the Customer from the time of delivery, but Avira shall retain title in delivered Products and goods as parts of Services until full payment. The provisions of these Terms pursuant to which the Customer acquires no title, including but not limited to the title stipulated in clause 4. above, shall remain unaffected thereby.
    2. Should the Customer sell the Products and Services provided by Avira before the Customer has itself paid the Fee to Avira, the Customer and Avira agree that the receivables from the resale shall be assigned to Avira. Should the Products and Servcies be provided together with other items, the assignment of the receivables shall be limited to the value of Avira’s Products and Services. Avira may disclose the assignment or demand that the Customer notifies the debtor of such assignment. The Customer shall formally assign the receivables – if still necessary – at any time at Avira’s request.
    3. Assertion of the retention of title by Avira shall not constitute rescission of the agreement unless Avira expressly advises the Customer thereof.
    4. The Customer’s right to continue to use the Products and Services shall lapse upon assertion of the retention of title by Avira. Any and all backup copies made by the Customer for its own use must be returned to Avira or deleted by the Customer.
  13. Miscellaneous
    1. Should any provision of these Terms be or become invalid, ineffective or unenforceable, the remaining provisions of these Terms shall be valid and enforceable.
    2. If the Customer is an Entrepreneur, the place of performance shall be the respective registered seat of Avira.
    3. These Terms and all disputes arising out of or in connection with it shall be governed exclusively by the laws of Hong Kong Special Administrative Region, under exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods dated 11 April 1980 (CISG). Each party irrevocably agrees to submit to the non-exclusive jurisdiction of the Hong Kong courts over any claim or matter arising from or in connection with these Terms.
    4. Any necessary official permits for transports, purchase and use of the Products and Services in the destination country shall be obtained by the Customer at its own responsibility and costs.
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