(Cylance Smart Antivirus v. 4.13.18)
This is a legal agreement between the individual that downloads, accesses, installs or uses the Software on his or her end point (and where relevant, the small business which you are purchasing on behalf of) (“you” or “your”) and Cylance Inc. (“Cylance,” “we,” “us” or “our”).
PLEASE READ THIS LEGALLY BINDING END USER LICENSE AGREEMENT CAREFULLY, INCLUDING ANY LINKED TERMS.
The following terms (including any terms incorporated by reference) form the Agreement between you and Cylance (the “Agreement”). If your subscription is renewed or you have accepted multiple versions of the agreement, then the most current version that you accepted supersedes and replaces all prior versions. If you are reading this in any language other than the English language then please understand that the English language version of this Agreement will control; any translated version of this Agreement conflicts with or differs from the English version, the English version will control.
The Agreement includes and/or incorporates by reference the following:
BY CLICKING THE RELEVANT BUTTON OR CHECKING THE RELEVANT BOX, OR REGISTERING FOR, DOWNLOADING, ACCESSING, INSTALLING OR USING THE SOFTWARE, OR TAKING ACTIONS REQUIRED OF YOU TO ACKNOWLEDGE YOUR ASSENT TO THESE TERMS, YOU (AND WHERE RELEVANT, THE SMALL BUSINESS THAT YOU REPRESENT AND THAT IS PURCHASING THE LICENSE) CONFIRM THAT:
IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT AUTHORIZED TO DOWNLOAD, ACCESS OR INSTALL OR OTHERWISE USE THE SOFTWARE FOR ANY PURPOSE WHATSOEVER.
IF YOU ACQUIRE THE SOFTWARE OR SERVICES PURSUANT TO THIS AGREEMENT AS A CONSUMER, WITHIN THE MEANING OF APPLICABLE CONSUMER PROTECTION LAWS IN YOUR COUNTRY, THEN REGARDLESS OF ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THIS AGREEMENT DOES NOT AFFECT ANY STATUTORY OR CODIFIED RIGHTS OR REMEDIES THAT YOU HAVE UNDER THOSE CONSUMER PROTECTION LAWS WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED, AND THIS AGREEMENT IS SUBJECT TO THOSE RIGHTS AND REMEDIES.
This Agreement affects your rights and the conditions on which you may download, access and use our proprietary software solution identified as part of the order, including any endpoint or hosted component(s), proprietary analytical engines, web interfaces, applications, programs, license keys, installer software, end user documentation (“Documentation”), content made available to you as part of the offering, and any upgrades and/or modifications to any of the forgoing made available to you (collectively, the “Software”).
Users who have obtained licenses for personal use for themselves (and members of their family or household) (“Household Users”), may download endpoint components of the Software on electronic devices belonging to their family or household for household use (“Household Use”). Users who have obtained licenses from or on behalf of the small business (“Small Business Users”) may download endpoint components of the Software on electronic devices owned or controlled by your small business for small business use (“Small Business Use”). In either case, the number of electronic devices that the Software may be downloaded to will depend on the number of endpoint licenses purchased as identified in the relevant order. Users will designate administrative user(s) on behalf of the group that will manage and monitor the Software on behalf of the group and have access to System Data (defined below) on behalf of the entire family/household or small business (each as relevant) (“Administrative User”). For clarity, these terms and conditions apply to each and every user of the Software (whether you are a Small Business User or a Household User and/or an Administrative User of the Software); and if you are purchasing on behalf of a small business, these terms also apply and are binding on the small business that you represent.
1. License Grant; Restrictions on Use.
1.1 License Rights. During the relevant subscription term for which a license to the Software has been purchased (“Subscription Term”) and subject to the terms of this Agreement, Cylance grants to you a non-exclusive, non-transferable, non-sublicensable license to install the endpoint components of the Software and access and use the hosted components of the Software solely for Household Use or Small Business Use for which the Software license was purchased (each as relevant).
1.2 Restrictions. Except as otherwise expressly permitted under this Agreement, you shall not (and shall not authorize or permit any other user to):
For the avoidance of doubt, all restrictions specified above with respect to the Software apply to all components of the Software and to all users of the Software. Any violation of the terms of this Agreement by a Household User shall be deemed a violation of this Agreement by the User who purchased/ obtained the licenses and distributed such licenses to his/her household/family group. Any violation of this Agreement by a Small Business User shall be deemed a violation of this Agreement by the small business who has purchased the license.
CYLANCE WILL HAVE THE ABSOLUTE AND UNILATERAL RIGHT IN ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF THE SOFTWARE TO YOU OR TO OTHER HOUSEHOLD USERS OR SMALL BUISINESS USERS WHO ARE DEEMED OR SUSPECTED BY CYLANCE TO BE USING THE SOFTWARE IN VIOLATION OF LAW OR THIS AGREEMENT.
2. Support; Automatic Updates to Software.
2.1 Support. Information regarding any available access to Cylance support for Cylance Smart Antivirus can be found at https://home-support.cylance.com/. Any technical support ("Support") is provided in our sole discretion without any guarantee or warranty of any kind and Cylance reserves the right to refuse, suspend or terminate any technical support, in its sole discretion. It is your sole responsibility to back up all your existing data, software and programs before receiving any technical support from Cylance.
2.2 Automatic Software Updates. You agree that Cylance may (at its sole option) make automatic updates to the Software during the Subscription Term. You understand and agree that these automatic updates may result in a loss of functionality on your computer system or system instability. You also agree that an automatic update to the Software may disable the Software at the end of the Subscription Term.
3.1 Privacy Notice. Please review our Privacy Notice available at https://www.cylance.com/en-us/company/about-us/privacy-notice.html. Our Privacy Notice outlines the manner in which we, or others acting on our behalf, may collect, use, and share information about you and the systems on which the Software is downloaded to. It is your responsibility to review our Privacy Notice prior to agreeing to this Agreement or using our Software. By clicking accept or otherwise assenting to these terms, or by registering, downloading, accessing, installing or using the Software, you are confirming that you have reviewed our Privacy Notice.
3.2 Small Business Users. If you have obtained the licenses herein for Small Business Use, you are subject to the terms of the General Data Protection Regulation and you acknowledge and agree that you are the data controller and Cylance is the data processor. As such, you may request a Data Processing Addendum by sending an email to email@example.com.
3.3 Updates to Privacy Notice. Each time you use Cylance website, products or services, the current version of our Privacy Notice found at https://www.cylance.com/en-us/company/about-us/privacy-notice.html will apply. We reserve the right to update the Privacy Notice at any time to reflect changes in the law, the Cylance products and services we provide, our business and technology, and our data collection and use practices. If we make any material changes to our Privacy Notice, we will notify you using your email address on record and/or by placing a notice on the site prior to the change becoming effective. Your continued use of Cylance products, services or our website following the posting of changes to our Privacy Notice, will deem your acceptance to those changes.
4. Access to System Data. The Software will gather, reproduce, adapt, display, transmit, and otherwise process certain data or information gathered from the endpoints on which the Software is loaded and from the applications, machines, systems or networks in communication with such endpoints (“System Data”). Examples of such System Data include usernames, filepaths, MAC Addresses, network MS information, hardware type, model number, hard disk size, CPU type, disk type, RAM size, systems architecture, operating system, versions, locale, BIOS version, BIOS model, system telemetry, device ID, IP address, location, information about third party products, and other configurations, settings and artifacts including metadata related to the execution of Potentially Malicious Code (as defined herein). For clarity, System Data specifically excludes Anonymous Analytics and nothing herein shall be construed to mean otherwise. Endpoint components of the Software will communicate this information to the hosted manangement console components of the Software hosted by Cylance which are accessable by the Administrative User(s) of the Software. You hereby agree that you consent to your Adminitstrative User’s access to System Data on your behalf and you agree that Administrative Users can manage and monitor the Software on behalf of you and your family, household or small business (each as relevant) as contemplated herein.
5. Analyzing Potentially Malicious Code; Collection of Anonymous Analytics. You acknowledge, understand and agree that: a primary feature of the Software is to help users facilitate detection and analysis of malicious scripts, machine instructions, files or code (including portable executable files or code) (collectively, “Potentially Malicious Code”) that exist on, or are being introduced into, your endpoint or the networks connected to your endpoint. Administrative User(s) of the Software may configure the Software on your behalf to allow the endpoint Software on your system to upload Potentially Malicious Code to servers operated by Cylance to analyze such Potentially Malicious Code. The Potentially Malicious Code uploaded may be deconstructed, assigned a unique file hash, and analyzed by the Software analytical engine, together with other data transmitted by the Software from the endpoint or the systems or networks where Potentially Malicious Code was derived, in order to improve upon existing analytics. These analytics, hereinafter referred to as “Anonymous Analytics,” shall be owned by Cylance, and, notwithstanding anything else herein, Cylance may share, use, and exploit such Anonymous Analytics in any way, including without limitation to determine functionality of and potential for malicious files or scripts to cause instability or damage to systems or networks, for sharing and distribution to other customers to promote awareness, detection and prevention of internet security risks, to support its customers, to identify potential internet security risks, and to further develop or enhance its products and services.
6. Authorizations, Acknowledgements, and Disclosures for Processing of System Data and for Monitoring Endpoint Systems. You acknowledge and agree to the following: that your Administrative User(s) have a lawful basis for monitoring the endpoints on which the Software is downloaded; that you have consented to and authorized the monitoring of the endpoints as contemplated; and that uploading Potentially Malicious Code and/or otherwise Processing System Data as contemplated in this Agreement by Cylance and access to System Data by your Administrative User has been approved by you; you have taken all other actions required under applicable laws to ensure that: (i) any such Processing of System Data by Cylance in the USA (or other countries that the Software is downloaded or used by your Users) for the purposes of performing under this Agreement (including delivery of the features or functionality of the Software or services contemplated herein) and (ii) monitoring of your groups endpoints by and accessing System Data by the Administrative User is legal under all applicable laws of the jurisdiction where such data originated and where such endpoints are being monitored. You acknowledge and agree that our access, analysis and associated transmission of data, including personal data, will be deemed authorized by you for purposes of all applicable international, federal, state and local laws, rules and regulations that relate to, regulate, or impact the subject matter of the Software.
7. Payment, Renewal, Cancellation. If you have purchased the license to the Software from our Reseller/Merchant of record, the payment, renewal and cancellation terms agreed to with such Reseller/Merchant of Record (including any automatic renewal terms you may have agreed to) shall apply to your purchase of the Software. If your employer has purchased licenses from Cylance on your behalf then the payment, renewal and cancellation terms agreed in Cylance’s agreement with your employer will govern. If your employer chooses not to renew your license you may have an opportunity to purchase licences directly. You are responsible for any charges incurred with your data or mobile service provider in connection with your use of the Software, including any overage and penalties assessed for exceeding your data or minute allowance, or use of domestic or international short message service.
8. Term and Termination. This Agreement is effective when the Software is first downloaded, accessed, installed or used as described in the first paragraph of this Agreement and will remain in effect until the earlier of: (i) the expiration of the relevant Subscription Term identified in the order (including any renewal term to which this Agreement applies, if any) or (ii) the termination of this Agreement in accordance with its terms. This Agreement will immediately terminate if you breach any of your obligations contained in this Agreement. Termination or expiration of this Agreement will immediately terminate the license granted to you. Immediately upon the termination of this Agreement, you must delete the Software, as well as any back-up copies from any computer on which the Software was installed. Any terms of this Agreement which by their nature extend beyond termination, as well as any rights or obligations that have accrued prior to termination or expiration, will survive such termination.
9. Confidentiality. By using the Software (including Documentation), you may receive or have access to Cylance trade secrets, proprietary information, and/or confidential information. More specifically, you understand that any nonpublic information that you receive regarding the Software (and any performance data, benchmark results, and technical information relating thereto), including the Documentation you obtain shall be deemed the confidential information of Cylance. You agree that you are not entitled to use or disclose any Cylance confidential Information other than strictly in accordance with the terms and conditions of this Agreement solely for the purposes of exercising your license rights to the Software as expressly permitted herein.
10. Limited Warranty; Warranty Disclaimer.
10.1 Limited Warranty. For thirty (30) days after the purchase date of the subscription to the Software (“Warranty Period”), we warrant that the Software licensed will perform substantially in accordance with the Documentation provided by us in connection with that Software at the time of purchase. Your sole remedy, and our and our suppliers’ entire liability, in case of any breach of this limited warranty is that we will, at our option, refund the price you paid for the license after you remove all instances of the Software licensed to you (and the relevant licenses provided to your family, household or business), replace the Software, or provide an alternative remedy as required by local consumer law in your jurisdiction. These remedies will not be available in countries that are prohibited under export laws, in which case will require refund and removal of all copies of the Software sold pursuant to the subscription.
GENERAL. EXCEPT AS EXPRESSLY PROVIDED HEREIN, (A) THE SOFTWARE, DOCUMENTATION, INFORMATION, SERVICES AND ANY UPDATES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE; (B) CYLANCE AND ITS LICENSORS, SUPPLIERS, AND AGENTS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE; (C) CYLANCE DOES NOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE OR DOCUMENTATION, THAT THE SOFTWARE WILL BE ERROR-FREE, COMPLETELY SECURE, OR BE PROVIDED (OR BE AVAILABLE) WITHOUT INTERRUPTION; AND (D) CYLANCE MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING ACCURACY OF INFORMATIONAL CONTENT, OR THE APPROPRIATENESS OF THE SOFTWARE FOR ANY PARTICULAR SYSTEM NOT IDENTIFIED IN THE DOCUMENTATION.
HIGH RISK ACTIVITIES. THE SOFTWARE IS NOT FAULT-TOLERANT, AND ARE NOT DESIGNED OR INTENDED FOR HIGH-RISK ACTIVITIES SUCH AS USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAILSAFE PERFORMANCE, INCLUDING NUCLEAR-FACILITIES OPERATIONS, AIR TRAFFIC COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT LIFE-SUPPORT MACHINES, OR ANY OTHER APPLICATION IN WHICH THE FAILURE OF THE SOFTWARE OR SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR PROPERTY DAMAGE. WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH-RISK ACTIVITIES.
DATA, SYSTEMS, POTENTIALLY MALICIOUS CODE. YOU UNDERSTAND THAT ANY DECISION BY THE ADMINISTRATIVE USER TO BLOCK, QUARANTINE OR ENABLE EXECUTION OF POTENTIALLY MALICIOUS CODE ON YOUR ENDPOINT IS AT YOUR OWN RISK. THE SOFTWARE AND RECOMMENDATIONS OR SUGGESTIONS MADE BY CYLANCE PERSONNEL, IF ANY, DO NOT REPLACE YOUR OR YOUR ADMINISTRATIVE USER’S OBLIGATION TO EXERCISE INDEPENDENT JUDGMENT WITH RESPECT TO POTENTIALLY MALICIOUS CODE, OR THE SELECTION, CONFIGUARTION OR USE OF THE SOFTWARE, ANY RECOMMENDATIONS OR SUGGESTIONS PROVIDED, AND/OR ANY RESULTS OBTAINED FROM USE OF THE SOFTWARE. YOU AGREE THAT CYLANCE IS NOT RESPONSIBLE FOR YOUR SYSTEM DATA OR APPLICATION, YOUR ENDPOINT OR NETWORK SECURITY OR POTENTIALLY MALICIOUS CODE THAT MAY OR MAY NOT BE DETECTED, CLASSIFIED OR MISCLASSIFIED UNDER ANY CIRCUMSTANCES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE TO WAIVE ANY AND ALL CAUSES OF ACTION OR CLAIMS AGAINST CYLANCE ARISING FROM OR RELATING TO ANY OF THE FORGOING.
THE PROVISIONS OF THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT POSSIBLE UNDER APPLICABLE LAWS THAT MIGHT BE APPLICABLE TO YOU.
11. LIABILITY LIMITATIONS.
(A) THE TOTAL LIABILITY OF CYLANCE AND ITS LICENSORS, SUPPLIERS, AND AGENTS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU PAID FOR USE OF THIS SOFTWARE OR IF NOTHING PAID, THEN ONE-HUNDRED U.S. DOLLARS (USD $100.00); AND
(B) IN NO EVENT WILL CYLANCE OR ITS LICENSORS, SUPPLIERS, AND AGENTS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR LOST OR DAMAGE TO DATA OR SYSTEMS, OR FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION), HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, EVEN IF CYLANCE AND ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THE PROVISIONS OF THIS SECTION WILL APPLY ONLY TO THE MAXIMUM EXTENT POSSIBLE UNDER LAWS APPLICABLE TO YOU (INCLUDING WHERE RELEVANT THE APPLICABLE CONSUMER PROTECTION LAWS).
12. Ownership. The Software is licensed and not sold. Cylance and its licensors shall own and retain all right, title, and (except as expressly licensed hereunder) interest in and to the Software and all updates, copies or portions thereof, and any derivative works thereof (by whomever created). All suggestions or feedback provided by you to Cylance or its agents or contractors with respect to the Software shall be Cylance property and you hereby assign the same to Cylance (and its successors) and you understand that Cylance and its successors can fully exploit the same as needed for its business. You do not receive any rights to the Software other than those specifically granted in this Agreement and no implied licenses with respect to the Software are granted herein.
13. Export. We make no representation that the Software is appropriate for use in any given country of use. You agree that the Software may be subject to United States government laws, regulations, orders or other restrictions regarding export from the United States and re-export from other jurisdictions of software, technical data and information or derivatives of such software, or technical data and information. You acknowledge that none of the Software or underlying information or technology may be downloaded, or otherwise exported or re-exported into (or to a national or resident of) the Russian Federation or the People's Republic of China, or used in any countries or by any individual subject to U.S. any trade embargo or exclusion, including without limitation, Iran, Cuba, Syria, North Korea, Sudan and the Crimea Region of Ukraine. You warrant that you will not, directly or indirectly, without obtaining prior authorization from the competent government authorities as required by those laws and regulations: (1) sell, export, re-export, transfer, divert, or disclose or provide the Software or Documentation to any prohibited person, entity, or destination; or (2) use the Software for any use prohibited by the laws or regulations of the United States or your country of residence or location. You will reasonably cooperate with us and will provide us promptly upon request with any certificates or documents, in each case as are reasonably requested to obtain approvals, consents, licenses and/or permits required for any payment or any export or import of the Software or Documentation under this Agreement. Nothing in this Agreement will preclude us from cooperating in any legal proceeding or government inquiry.
14. Evaluation or Beta Copies of Other Cylance Software. For any evaluation or beta copies of Cylance software provided to you under this Agreement, the evaluation or beta copy shall be deemed “Software” hereunder and subject to the terms herein, provided that, the following shall apply to such Software (notwithstanding any contrary term specified in any other sections of this Agreement): (a) the license for evaluation or beta copies of the Software is limited to the evaluation term permitted by Cylance (or its Authorized Reseller) and only for the limited purpose of evaluating the Software and establishing your desire to purchase licenses to the Software or provide feedback; and (b) the evaluation and beta copies of the Software are provided “as is” without any warranty of any kind; and (c) you shall not be entitled to any Support or any upgrades of the evaluation or beta copies of the Software and any such support or upgrades may be provided by Cylance at its sole discretion; and (d) the parties may terminate the evaluation or beta license with five (5) days written notice to the other party; and (e) upon the effective date of such terminated license, Cylance may require you to promptly return the evaluation or beta copies of the Software and remove all copies of such Software from its systems.
15.1 Language. This Agreement, any disputes hereunder, and all services to be provided hereunder by Cylance to you (if any) shall be conducted and provided in the English language.
15.2 Open Source. Notwithstanding anything else herein, to the extent any endpoint Software delivered hereunder includes any third party open source libraries/components/applications/user interface/utilities (collectively referred to as “Open Source”) and to the extent required by the relevant licensor, such Open Source shall be subject to the relevant Open Source proprietary notices, disclaimers, requirements and/or extended rights which are relevant to the relevant Open Source code and identified to the user in the relevant Documentation.
15.3 Illegality; Severability. Should any term of this Agreement be declared invalid, void or unenforceable for any reason, then such term shall be modified, limited or eliminated to the minimum extent necessary to effectuate the original intent and such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect.
15.4 Entire Agreement; Modifications. This Agreement constitutes the entire agreement between the parties with respect to the license of the Software and delivery of Support (if and where relevant). This Agreement supersedes and cancels all previous written and previous or contemporaneous oral communications, proposals, representations, and agreements relating the subject matter contained herein. We may modify the terms of this Agreement (including our Privacy Notice) by providing you notice. If we make any material changes, we will notify you using your email address on record and/or by placing a notice on the site prior to the change becoming effective. Your continued use of the Cylance Software following delivery of the notification, posting of changes to this Agreement will mean you accept those changes. If you do not agree to the updated terms you may terminate this Agreement and after you remove all Software from your endpoint (and your groups endpoints), you can obtain a pro-rata refund of the relevant pre-paid and unused fees paid by you for your subscription for the unused period that you paid for the license. You acknowledge that it has not relied upon any written or oral representations by Cylance in entering into this Agreement, other than those explicit representations set forth in this Agreement.
15.5 Waiver. The failure of either party to enforce any rights or provision of this Agreement, or a failure to take action against the other party in the event of any breach hereunder, shall not be deemed a waiver by that party of such right or provision or a waiver of any other right or provision or a waiver of such right or provision on any other occasion.
15.6 Headings. The title of this Agreement and the headings of Sections and Subsections used in this Agreement are for ease of reference only and will not be used to interpret any part of this Agreement.
15.7 No Third-Party Beneficiary. The parties do not intend that any term of this Agreement be enforceable by any third party.
15.8 Assignment. Cylance may assign this Agreement or its rights or duties hereunder, in whole or in part, but you may not assign your rights under this Agreement without the express written permission of Cylance.
15.9 Governing Law. To the maximum extent permissible, this Agreement will be governed by the laws of the State of California, USA, without regard to conflicts of law rules or principles that would dictate a different governing law. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
15.10 BINDING ARBITRATION AND CLASS ACTION AND JURY TRIAL WAIVER.
PLEASE READ THIS SECTION CAREFULLY. TO THE MAXIMUM EXTENT PERMISSABLE, THIS SECTION AFFECTS YOUR LEGAL RIGHTS CONCERNING ANY DISPUTES BETWEEN YOU AND CYLANCE. FOR PURPOSES OF THIS SECTION, “CYLANCE” MEANS CYLANCE INC. AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS AND AUTHORIZED RESELLERS.
(A) Agreement to Arbitrate Disputes. Any claim, dispute or controversy of any kind, regardless of the type of claim or legal theory or remedy (“Claim”) by either you or us against the other arising from, relating to or in any way concerning the Agreement, the Software, or services you receive from us (or from any advertising for any such products or services) will, at the demand of either party, be resolved by confidential binding arbitration. This agreement to arbitrate also includes: (i) Claims relating to the enforceability or interpretation of any of these arbitration provisions; (ii) Claims by you, and also Claims made on your behalf or connected with you, such as an employee, representative, agent, predecessor, successor, heir, assignee, or trustee in bankruptcy; (iii) Claims that relate directly to us, and/or to our parent, affiliates, successors, assignees, employees, and agents; and (iv) Claims asserted as part of a class action, private attorney general or other representative action, it being expressly understood and agreed to that the arbitration of such claims must proceed on an individual (non-class and non-representative) basis and the arbitrator may award relief only on an individual (non-class and non-representative) basis. YOU AND WE AGREE THAT NO CLASS ACTION, CONSOLIDATED ACTION, PRIVATE ATTORNEY GENERAL OR OTHER REPRESENTATIVE CLAIMS MAY BE PURSUED IN ARBITRATION, NOR MAY SUCH ACTIONS BE PURSUED IN COURT. BY ACCEPTING THIS ARBITRATION AGREEMENT, YOU AGREE TO WAIVE THE RIGHT TO INITIATE OR PARTICIPATE IN A CLASS ACTION, REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR CONSOLIDATED ARBITRATION IN ANY MATTER ENCOMPASSED BY THIS ARBITRATION PROVISION.
(B) Notice. The party seeking relief under this Agreement must first notify the other party of the dispute in writing at least 60 days in advance of initiating any action. Notice to Cylance should be sent to Cylance Inc., Attn: Legal Department—CylanceHome, 400 Spectrum Center Drive, #900, Irvine, CA 92618 U.S.A. The notice must include your name, address, and contact information, the facts giving rise to the dispute, and the relief requested. You and we will use reasonable efforts to resolve any dispute through informal negotiation within sixty (60) days from the date the notice of dispute is sent. After 60 days, you or we may commence arbitration.
(C) Administration of Arbitration. If any dispute is not resolved by informal negotiation, any claim, dispute, or controversy will be, at the demand of either party, conducted exclusively by binding arbitration governed by the Federal Arbitration Act (“FAA”), and not state law. YOU ARE GIVING UP THE RIGHT TO LITIGATE (OR PARTICIPATE IN AS A PARTY OR CLASS MEMBER) ALL DISPUTES IN COURT BEFORE A JUDGE OR JURY. Instead, all disputes will be resolved on an individual basis before a single, neutral arbitrator and the proceeding will be confidential. The arbitrator will be either a lawyer admitted to practice law in his or her jurisdiction and with at least ten years’ experience or a retired or former judge selected in accordance with the rules of the AAA. The arbitrator is bound by the terms of this Agreement, and the arbitration will be governed by the Commercial Arbitration Rules and Supplementary Procedures for Consumer Related Disputes of the AAA, as modified by this Agreement (the “Arbitration Rules”). For more information, see adr.org or call 1-800-778-7879. All arbitration proceedings will be conducted in English, and the United States FAA will govern the interpretation, enforcement, and proceedings pursuant to the binding arbitration clause in this Agreement. The arbitration will take place at a mutually agreed-upon location, however, if no agreement can be reached, then at a location determined by the Arbitrator. The award will be confidential and only disclosed as is necessary to obtain judgment or as otherwise required by law. You and we further agree that a judgment may be entered upon the award by any court having jurisdiction. The arbitration award will determine the rights and obligations between the named parties only, and only in respect to the claims in arbitration, and will not have any bearing on the rights and obligations of any other dispute. In the event of a conflict between the Arbitration Rules and this arbitration agreement, this arbitration agreement will govern.
(D) Costs. The party initiating the arbitration will pay the initial filing fee. If you file the arbitration and an award is rendered in your favor, we will reimburse your filing fee. We will pay the fees and costs for the first day of any hearing. All other fees and costs will be allocated in accordance with the arbitration rules. However, we will advance or reimburse filing and other fees if the arbitrator rules that you cannot afford to pay them or if you ask us and we determine there is a good reason for doing so. Each party will bear the expense of their respective attorneys, experts, and witnesses and other expenses, regardless of who prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.
(E) Severability. If any term or provision this Section 15.10 is found to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement and will be eliminated to the minimum extent necessary. If any portion of this arbitration agreement is deemed invalid or unenforceable, it will not invalidate the other provisions of the arbitration agreement; provided, however, that (i) if the prohibition on class-wide arbitration is deemed invalid, then this entire arbitration agreement will be null and void; and (ii) if the prohibition on arbitration of representative claims brought in a private attorney general capacity is deemed invalid, then the arbitration agreement will be null and void as to such claims only. This arbitration agreement will survive the termination or cancellation of this Agreement. In the event of a conflict between this arbitration agreement and any other applicable arbitration provision, this arbitration agreement will control.
(F) WAIVER OF JURY TRIAL. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN THROUGH ARBITRATION, YOU AND WE AGREE THAT THERE WILL NOT BE A JURY TRIAL. YOU AND WE UNCONDITIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY DISPUTE THAT IN ANY WAY RELATES TO OR ARISES OUT OF THE AGREEMENT OR FROM ANY EQUIPMENT, PRODUCTS AND SERVICES YOU RECEIVE FROM US (OR FROM ANY ADVERTISING FOR ANY SUCH PRODUCTS OR SERVICES). IN THE EVENT OF LITIGATION, THIS PARAGRAPH MAY BE FILED TO SHOW A WRITTEN CONSENT TO A TRIAL BY THE COURT. This paragraph in no way invalidates the Agreement to Arbitrate Disputes.
16. Consumer Protection Under Local Laws of Certain Countries. Cylance licenses its Software to consumers without prejudice to any legal or statutory right any party may have in the jurisdiction in which they reside, notwithstanding anything stated to the contrary in this Agreement. The subsections below contain information regarding the local laws of certain countries that will apply to this Agreement and may supersede certain provisions as referenced herein.
16.1 Australia. If you acquire the Software or services under this Agreement as a consumer within the meaning of the Australian Consumer Law (“ACL”), then you are entitled to guarantees that cannot be excluded under this Agreement. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. This Agreement does not exclude, restrict, or modify the application of any provision of the ACL, the exercise of any right or remedy conferred by the ACL, or our liability for a failure to comply with any applicable consumer guarantees. ANY DISCLAIMERS, EXCLUSIONS OR LIMITATIONS OF WARRANTIES, GUARANTEES AND LIABILITIES IN THIS AGREEMENT APPLY TO THIS AGREEMENT ONLY TO THE EXTENT PERMITTED BY THE AUSTRALIAN CONSUMER LAW, AND CYLANCE’S LIABILITY IS LIMITED ONLY TO THE MAXIMUM EXTENT PERMITTED BY AUSTRALIAN LAW. The benefits to you by the express warranties in this Agreement are in addition to other rights and remedies you may have under a law in relation to the goods or services to which the warranties relate. The warranties are made by Cylance Inc., with offices located at 400 Spectrum Center Drive, #900 Irvine, CA 92618, telephone number +1 888 847 9427. In order to claim an express warranty under this Agreement, any defect in the Software must appear within sixty (60) days. Any claims made under this warranty must be sent, at your expense, to our address noted above, and directed to the attention of the Legal Department.
16.2 New Zealand. For consumers in New Zealand who obtain the Software for personal, domestic, or household use (and for not business purposes), this Agreement is subject to the Consumer Guarantees Act.
16.3 European Economic Area (EEA). For consumers in New Zealand who obtain the Software for personal, domestic, or household use (and for not business purposes), this Agreement is subject to the Consumer Guarantees Act.
(A) For consumers that usually reside in the EEA and utilize the Software for non-business-related purposes, Cylance warrants for a period of two (2) years from purchase that the Software provides the functionalities set forth in the applicable user Documentation (the “agreed upon functionalities”). THIS WARRANTY DOES NOT APPLY TO THE SOFTWARE THAT FAILS TO PERFORM BECAUSE IT HAS BEEN ALTERED BY YOU. To make a warranty claim as a consumer, you must notify Cylance during this two (2) year period, providing details of proof of purchase of the Software. Cylance will then verify whether there is a defect in the Software. We may advise you that the error has arisen because you have not installed the Software correctly. Alternatively, if there is a defect in the Software, you may request either a refund or a repaired or replacement copy of the Software. Requests must be accompanied by proof of purchase. In the event your warranty details are substantiated, Cylance will attempt, to the extent practicable, to satisfy your request.
(B) Consumers who purchased this Software and typically reside in the EEA have the right to cancel this Agreement within fourteen (14) days of the purchase without giving any reason. To exercise the right to cancel, you must notify us of your decision to cancel by a clear statement (e.g., a letter sent by post, fax or e-mail) which includes proof of purchase. If you cancel this Agreement, we will reimburse to you all payments received from you. We will make the reimbursement without undue delay, and no later than fourteen (14) days after the day on which we are informed about your decision to cancel this Agreement. We will make the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of the reimbursement.
16.4 Germany. If you acquire the Software or services under this Agreement as a consumer in Germany, then the following provisions will apply, superseding any contradicting provisions of the Agreement:
(A) Warranty. The validly licensed Software will perform substantially as described in any Documentation provided by Cylance. However, we give no contractual guarantee in relation to the licensed Software. Any defect in the Software or the Documentation will have to be reported to Cylance in writing without undue delay, in case of defects as to quality [Sachmängel] by submitting a detailed description of the defect or, if this is not possible, of the symptoms of the defect, and any useful information available to you for rectification of the defect. If you can demonstrate the existence of a defect as to quality, which is not negligible, such defect shall be rectified by Cylance within a reasonable period of time. Cylance will pay damages and reimburse expenditures due to a defect within the limits of paragraph (B) below, “Limitation of Liability.” Cylance will not be subject to the strict liability [verschuldensunabhängige Haftung] provided for in section 536a para. 1, first sentence, first alternative of the German Civil Code [Bürgerliches Gesetzbuch – BGB]. Notwithstanding anything to the contrary herein, you will have no warranty claims if the defect is based upon any Software or Documentation being: (i) used or accessed other than by you for the expressly approved purpose and according to the Documentation; (ii) modified by you other than as approved in writing by Cylance; or (iii) used, accessed or combined with products not supplied by Cylance or agreed to by Cylance in the Documentation when the Software or Documentation is/are not infringing absent such use or combination.
(B) Limitation of Liability. Cylance is only liable for damages caused by slight negligence if such are due to a material breach of duty, which endangers the achievement of the objective of these terms, or to a failure to comply with duties, the very discharge of which is an essential prerequisite for the proper performance of these terms. Cylance’s liability is limited to the damages which are typical for such type of contract and which could have been foreseen. This will also apply to damages caused by the gross negligence of an agent or an employee of Cylance, who is not an officer or executive [keine Organ oder leitender Angestellter] of Cylance. The aggregate liability of Cylance for damages will be limited to five times the amount paid for the Software. The limitation period for your claims for damages shall be two (2) years from the date you became aware of the claim, or (3) years from the date of the event causing the damage, whichever is earlier, except for claims in case of defect which shall be time-barred after one (1) year. With the exception of liability under the German Product Liability Law, the above limitations of liability shall apply to all claims for damages, irrespective of their legal basis, including claims in case of defect and claims based on tort [Schadenersatzansprüche aus unerlaubter Handlung]. The above limitations of liability also apply in case of your claims for damages against Cylance’s employees or agents.
(C) Free Software. Any evaluation or beta or otherwise free Software is provided “AS IS”. Cylance will not be liable for defects as to quality or defects in title of such free Software, unless such have been maliciously concealed. Cylance will only be liable for damages resulting from such free Software if such have been caused by wilful misconduct or gross negligence.
17. Notices. Notices sent to you will be sent to your email address or via the Software console interface or any address as you may specify in writing by notice.
Notices to Cylance should be sent to:
Attn: Legal Department--CylanceHome
400 Spectrum Center Drive, #900
Irvine, CA 92618