7. Privacy; processing of personal and other information
7.1. The term “Data”, as used in this Agreement and the Privacy Policy, means: (a) the information you provide to Vendor, another member of the Vendor Group, or a Vendor Partner in the course of ordering Solutions, including your name, billing address (including postal code), email address, phone number, payment card or account number, payment card or account verification code, payment card commencement date and expiration date, the account password you select for your account with Vendor or another member of the Vendor Group, and other Billing Data as defined in Vendor’s Privacy Policy (the “Privacy Policy”, which you can find here) (collectively, “Transaction Data”); (b) information Vendor, another member of the Vendor Group or a Vendor Partner collects in the course of processing and fulfilling your orders for Solutions, including information about the make, model, operating system and other identifying details of your Device, the name of your Internet service provider, your Internet Protocol (IP) address; and (c) information about your installation and use of Solutions ((b) and (c) collectively being referred to as “Service Data” in the Privacy Policy).
7.2. You authorize Vendor, another member of the Vendor Group or a Vendor Partner, to use your Data, for the purposes described in the Privacy Policy. You acknowledge that such use of your Data includes processing and fulfilling your orders for subscriptions, improving Solutions, and providing information to you about the Solutions to which you have subscribed and offering you other Solutions. You acknowledge that Vendor or another member of the Vendor Group may share your Data with Vendor Partners such as Vendor’s ecommerce platform providers and payment processors, suppliers providing support, services and Solutions to you on Vendor’s behalf, and suppliers providing Vendor or a member of the Vendor Group with purchase analytics and crash analytics in respect of Solutions.
8. Termination
8.1. This Agreement will immediately terminate upon your breach of any of your obligations in this Agreement (including any breach of your obligations in Sections 2, 5 or 10), which will result in forfeiture of any rights you may have to receive Updates or to obtain a refund for the portion of the subscription fee you have paid for the unexpired or unused portion of the Subscription Period. Vendor reserves the right to any other remedies available under law in the event your breach of any of your obligations under this Agreement adversely affects any member of the Vendor Group or any Vendor Partner. The exclusions and limitations of liability of members of the Vendor Group and Vendor Partners contained in this Agreement will survive termination of this Agreement.
8.2. Vendor, by notice to you, may immediately terminate this Agreement for convenience at any time with respect to any particular Solution or all Solutions and the entire and exclusive liability of each member of the Vendor Group and each Vendor Partner, and your sole and exclusive remedy, in respect of any such termination will be limited to a refund for the portion of the subscription fees you have paid for the unexpired or unused portion of the Subscription Period. From the effective date of such termination you will no longer be entitled to use any affected Solution and Documentation.
8.3. If a Subscription Period is conditioned on you paying a fee or charge, and if Vendor has not received payment by the 15th day following the commencement of that Subscription Period, you will be deemed to have surrendered your license to use the Solution, and the license will terminate immediately without further action by you or Vendor.
9. U.S. government restricted rights
All Solutions qualify as “commercial items”, as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire such Solutions and related Documentation with only those rights set forth in this Agreement that apply to non-governmental customers. Use of such Solutions and related Documentation constitutes agreement by the U.S. Government entity that the computer software and computer software documentation is commercial, and constitutes acceptance of the rights and restrictions set forth in this Agreement.
10. Export controls
You must comply with all applicable U.S. and international laws governing export and re-export of the Solutions, including the U.S. Export Administration Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments. Without derogating from the generality of the foregoing, you represent, warrant and undertake that: (i) you are not a member of any of the denied persons list, unverified list, entity list, specially designated nationals list, debarred list or any other lists published by the U.S. Government; and (ii) you will not use, export or re-export any Solution in, or to, territories, destinations, companies or individuals in violation of U.S. and E.U. embargoes or trade sanctions. You will indemnify, defend and hold each member of the Vendor Group harmless from and against any claim, demand, suit or proceeding, and all damages, liabilities, costs and expenses arising from your failure to comply with this Section 10.
11. Binding arbitration agreement and class action waiver
11.1. This Section 11 applies to any Dispute arising from or related to any Solution, subscription for any Solution or this Agreement, and involving you and Vendor. “Dispute”, for the purposes of this Section 11, means any dispute, action, or other controversy regardless of the particular cause of action(s) asserted (i.e., it encompasses, among any other potential cause of action or legal basis, claims for breach of contract, misrepresentation or fraud, indemnification, tort (including negligence and strict product liability), and violation of statute or regulation).
11.2. In the event of a Dispute, you must provide Vendor with a notice of Dispute, which is a written statement of your name, address and contact information, the facts giving rise to the Dispute, and the relief requested by you. You must send any notice of Dispute by email to Vendor at legal@avast.com (stating Subject: Section 11 Notice of Dispute Under EULA).
11.3. ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE IN ANY FORUM WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. YOU WILL NOT SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NO ARBITRATION OR PROCEEDING WILL BE COMBINED WITH ANOTHER WITHOUT THE PRIOR WRITTEN CONSENT OF ALL PARTIES TO ALL AFFECTED ARBITRATIONS OR PROCEEDINGS.
11.4. If you and Vendor do not resolve any Dispute by informal negotiation, any other effort to resolve the Dispute will be conducted exclusively by binding arbitration governed by the United States Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., and the substantive laws of the State of New York (without regard to choice of laws principles). Except as provided in Section 11.5 below, you are giving up the right to litigate (or participate in litigation as a party or class member) all Disputes in court before a judge or jury. Instead, all Disputes will be resolved before a neutral arbitrator, whose decision will be final except for a limited right to judicial review under the FAA. Any court with jurisdiction over the parties may enforce the arbitrator’s award.
11.5. The arbitration requirement of this Section 11 is subject to the following exceptions:
11.5.1. You may litigate any Dispute in small claims court, in the county or other similar political subdivision in which you reside, if the Dispute meets all requirements to be heard in the small claims court. If you initiate a claim in small claims court, you are responsible for all court costs and fees.
11.5.2. All Disputes concerning any alleged misappropriation of your or Vendor’s intellectual property will be resolved in court.
11.5.3. If you are a consumer and live in the European Union, Norway, Iceland or Lichtenstein, you may be entitled to address your Dispute through an internet platform for online dispute resolution established by the European Commission (the “ODR Platform”). The ODR Platform is intended to facilitate out-of-court resolutions relating to online purchases of goods and services between consumers and traders based in the European Union, Norway, Iceland and Lichtenstein. You will find the ODR Platform by following this link: http://ec.europa.eu/consumers/odr/.
11.6. Any arbitration will be administered by the American Arbitration Association (the “AAA”) in accordance with the AAA’s “Consumer Arbitration Rules” effective September 1, 2014, including the “Costs of Arbitration (Including AAA Administrative Fees)” effective September 1, 2014 (collectively, the “Consumer Procedures”) and will be subject to the following:
11.6.1. The Consumer Procedures provide for certain fees, specifically allocating some to the consumer (you) and others to the business (Vendor). If your claim is US$75,000 or less, Vendor will pay all of those specified fees and costs, including those allocated to the consumer. Vendor does not agree to bear any other costs. If your claim is more than US$75,000, the Consumer Procedures will govern payment.
11.6.2. Except as provided in below, the AAA’s Consumer Procedures will be applied to any Dispute between the parties. However, pursuant to Consumer Arbitration Rule R-1(e), a party may raise the proper application of the Consumer Arbitration Rules to an arbitrator for a final decision. This Agreement governs to the extent it conflicts with the Consumer Procedures. You will commence arbitration only in the county or other similar political subdivision in which you reside. The arbitration proceedings will be conducted by conference call. However, if the proceedings are conducted pursuant to the AAA Consumer Procedures, the arbitrator(s) will have the discretionary authority to require a face-to-face hearing upon the request of a party.
11.6.3. You and the Vendor agree that the use of the AAA to administer arbitration is not integral to the parties’ agreement to arbitrate Disputes. If the AAA will not or cannot conduct an arbitration, you and Vendor will negotiate in good faith to agree on a sole arbitrator who will resolve the Dispute as provided in the Consumer Procedures. If the parties cannot agree on an arbitrator, a court of competent jurisdiction may appoint an arbitrator, who will follow the AAA’s Consumer Procedures.
11.6.4. If one or more parts of this Section 11 are found to be illegal, invalid or unenforceable as to all or some parts of a Dispute, then, and only in that circumstance, those parts will be severed and the Dispute will be resolved subject to all remaining parts of this Section 11 and all other provisions of this Agreement. If such severance results in all or some parts of a Dispute proceeding in a court of law, exclusive jurisdiction for any such court proceeding will be the courts sitting in the county of New York, New York, U.S. For purposes of any such court proceeding, you consent to, and will not challenge, the New York, New York courts’ personal jurisdiction over you, and you further waive objection based upon improper venue or forum non conveniens and will not seek transfer to another district or jurisdiction.
11.7. Notwithstanding the preceding paragraphs of this Section 11, if you acquired a Solution for other than personal or household use, the arbitration proceedings, including the payment of costs, will be administered in accordance with the AAA’s Commercial Arbitration Rules (the “Commercial Procedures”). The Commercial Procedures are appropriately applied to any Dispute between the parties, and you will not advocate otherwise in any proceeding. However, this Agreement governs to the extent it conflicts with the Commercial Procedures.
