AVG Safe Surf End User Agreement
IMPORTANT: This End User Agreement (the “Agreement”) contains the terms and conditions governing access to and use of all of the Services and Software obtained from AVG VPN Technologies UK Ltd. (“AVG VPN Tech”) (each, a “Solution”) by you and any entity or individual you represent or for whose computer, smartphone or other Device you acquire the Solutions (“you”).
AVG VPN Tech may amend this Agreement at any time by notice provided to you in accordance with this Agreement, and your continued use of any Solution at any point at least 30 days after the notice date will constitute your acceptance of the amendment of this Agreement. AVG VPN Tech may require that you accept the amendment of this Agreement in order to continue using Solutions you have previously purchased. If you decline to accept the amendment of this Agreement, AVG VPN Tech may terminate your use of the affected Solutions, in which case we will refund the amounts you paid for the Solutions (prorated for the unexpired or unused portion of the Subscription Period).
If you have any questions or concerns about this Agreement or the Solutions to which it relates, please direct them to the AVG VPN Tech contacts shown in Section 11.16.
AVG VPN Tech is a limited company registered in England under company number 09960966 and its registered office is located at 110 High Holborn, London WC1V, UK.
Note as well that in this Agreement you:
- Acknowledge that:
- You must keep your user profile up to date to ensure that you receive notices about Subscription Period extensions and other important information about this Agreement and the Solutions.
- AVG VPN Tech may from time to time update any Solution or replace a Solution with another Solution with similar functionality without requesting or obtaining your separate consent, and your Device or certain Device functions may not be available to you while the Update is in process;
- Represent that you are 18 years of age or older, and are authorized to accept this Agreement on behalf of all of the individuals and entities for whom (or for whose Devices) you obtain Solutions;
- Represent and warrant that you are not located in a country that is subject to a U.S. or U.K. Government embargo, or that has been designated by the U.S. or U.K. Government as a “terrorist supporting” country and that you are not a person who is either barred or otherwise legally prohibited from receiving or using the Solutions under the laws of the country in which you are resident or from which you access or use the Solutions;
Acceptable Use Policy means the Acceptable Use Policy located at www.avg.com/vpn-acceptable-use.
Applicable Conditions, with respect to any Solution, means the Subscription Period for the Solution, whether the Subscription Period automatically extends, the number and type of Devices for which the Solution is authorized, and other terms governing use of that Solution. The Applicable Conditions are specified (i) on the checkout payment page if you obtain the Solution over the Internet, from a Mobile App Store or by other electronic means, (ii) by telephone or email communication when you purchase the Solution, or (iii) on the package if you acquired the Solution on CD or other physical medium.
Authorized Purposes means your personal use or internal commercial use, and in each case not for resale or other exploitation for the benefit of a third party.
Beta Solution means any Evaluation Solution and any Solution marked or otherwise designated as a beta test version, irrespective of whether payment has been made.
Device means any mobile phone, mobile device, tablet, mobile network appliance, other mobile product (each, a “Mobile Device”), personal computer, Internet-connected device, or any other device supported by AVG VPN Tech as specified in the Applicable Conditions and in the Technical Specifications in respect of the Solution.
Dispute has the meaning ascribed to it by Section 10.1 of this Agreement.
Evaluation Solution means an otherwise paid Solution that AVG VPN Tech provides without receiving payment for trial or evaluation purposes.
Extension Period has the meaning ascribed to it by Section 3.1 of this Agreement.
Free Solution means any Solution other than Beta Solutions that AVG VPN Tech designates as “free” or otherwise provides without charge.
Group Company means, with respect to AVG VPN Tech, an entity controlling, controlled by or under common control with the AVG VPN Tech. “Control,” as used in this section, means ownership of more than 50% of the outstanding voting interest of the applicable entity.
Initial Subscription, for each Solution, means the period beginning on the date you obtain the Solution and continuing for the term (defined by the passage of time, your use of the Solution or another metric) specified by the Applicable Conditions.
Mobile App Store means an online store that currently or in the future offers Mobile Solutions, including through the Device itself.
Mobile Solution means a Solution available to you on a Mobile Device platform, e.g., Android, iOS, and Windows Phone.
Personally Identifiable Information means information that can be used to uniquely identify, contact, or locate a single individual or can be used with other sources to uniquely identify a single individual including, as applicable under applicable law, personal data (as the term is used by the EU Data Protection Directive 95/46/EC).
Service means a Solution comprising services.
Software means a Solution comprising software, or software provided in support of a Service, intended to be installed on a Device, and shall include any Updates.
Solution has the meaning set forth in the preamble.
Subscription Period, with respect to each Solution, means the Initial Subscription together with all Extension Periods.
Technical Specifications means the technical documentation applicable to the relevant Software, available at www.avg.com/safe-surf (Technical Specifications) or in the description of the Solution provided on the Mobile App Store as updated from time to time.
Third Party Materials means software, services, websites, offers and promotions or products provided by any third party and governed by Third Party Terms and Conditions.
Update means content or code AVG VPN Tech deploys to update a Solution including but not limited to new releases or versions of Software provided by AVG VPN Tech from time to time in connection with a Solution.
U.S. or U.K. Government means the federal government of the United States of America or the government of the United Kingdom, respectively.
2. License Grant; GENERAL.
2.1. Grant of License. AVG VPN Tech, subject to the terms and conditions of this Agreement, hereby grants you a non-exclusive and non-transferable license to use each Solution you purchase or otherwise properly acquire, in each case during the applicable Subscription Period for Authorized Purposes in accordance with the Applicable Conditions and, if applicable, Technical Specifications. The Subscription Period for Free Solutions continues indefinitely, without the need for extensions, until you or AVG VPN Tech terminate it in accordance with this Agreement.
2.2.1. General. You will not, and will not permit any third party to, (i) use any license key, username/password combination or other authorization code or number supplied by AVG VPN Tech in connection with any Solution on more than the number of Devices or simultaneous usage instances specified by the Applicable Conditions, (ii) disclose any license key, username/password combination or other authorization code or number to any party other than AVG VPN Tech or AVG VPN Tech designated representatives, (iii) except as expressly authorized by law, (A) reverse engineer, disassemble, decompile, translate, reconstruct, transform or extract any Solution or any portion of the Solution, or (B) change, modify or otherwise alter any Solution, (iv) publish, resell, distribute, broadcast, transmit, communicate, transfer, pledge, rent, share or sublicense any Solution, (v) grant any third party access to or use of any Solution on a service bureau, timesharing, subscription service or application service provider or other similar basis, (vi) test or benchmark, or disclose or publish testing or benchmark results, for any AVG VPN Tech Solution without AVG VPN Tech’s prior written consent (which you may request at http://www.avg.com/benchmarking), (vii) defeat or circumvent, attempt to defeat or circumvent, or authorize or assist any third party in defeating or circumventing controls on the installation or use of copies of any Solution; or (viii) violate the Acceptable Use Policy.
2.2.2. Software. In addition to the limitations established by Section 2.2.1, you will not (i) copy Software for any purpose other than, as reasonably necessary to use the same as contemplated by this Agreement, and to preserve 1 uninstalled/off-line copy for disaster recovery purposes; (ii) install the Software on any operating system not supported by AVG VPN Tech as reflected in the Technical Specifications, or (iii) remove any copyright, trademark or other proprietary notices from the Software.
2.2.3. Warning. IF YOU USE ANY SOLUTION FOR PURPOSES OR IN A MANNER NOT AUTHORIZED BY THIS AGREEMENT, YOU ARE COMMITTING A MATERIAL BREACH OF THIS AGREEMENT AND MAY VIOLATE APPLICABLE LAWS, AND ALL WARRANTIES PROVIDED BY AVG VPN TECH FOR THE SOLUTION WILL TERMINATE IMMEDIATELY FOLLOWING YOUR BREACH.
2.3. Third Party Fees. You may incur access fees or data or usage fees from third parties (such as your Internet provider or mobile carrier) in connection with your use of a Solution. For instance, you may incur such fees if you use the Solution and it downloads Updates. You are responsible for all such fees.
AVG VPN Tech, from time to time during the Subscription Period and, without your separate permission or consent, may deploy Updates for any Solution, and you may not be able to use the applicable Solution or Device (or certain functions of the Device) until the Update is fully installed. Updates will be deemed a part of the Solution for all purposes under this Agreement. Updates may include both additions to and removals of particular functionality offered by a Solution or may replace it entirely, and the content and functionality of such updates is at the sole discretion of AVG VPN Tech. AVG VPN Tech or your Device may offer you the option to decline or delay Updates, but you must download and permit installation of all available Updates to obtain maximum benefit from the Solution. AVG VPN Tech may stop providing support for a Solution until you have accepted and installed all Updates. AVG VPN Tech will determine when and if Updates are appropriate and has no obligation to make any Updates available to you. AVG VPN Tech in its sole discretion may stop providing Updates for any version of the Solution other than the most current version, or Updates supporting use of the Solution in connection with any versions of operating systems, email programs, browser programs and other software with which the Solution is designed to operate.
2.5.Conflicting Functionality and Uninstallation. Certain Software, during its installation, may disable existing functionality, such as a firewall, and replace it with functionality provided with the Solution. If you uninstall the Solution, you may be prompted to activate other software. AVG VPN Tech strongly advises you to activate such other software as prompted once the Solution has been uninstalled. Some third-party applications may not allow the Solutions to install or run correctly. If you choose to ignore the warnings provided during the installation of the Solution, such Solutions may not function properly, and notwithstanding anything to the contrary in this Agreement, AVG VPN Tech disclaims any and all warranties and liability with respect to such Solutions.
2.1. User Comments. AVG VPN Tech welcomes your comments concerning Solutions, including notice that you have experienced a failure, error or other malfunction, and suggestions for additional or different features and functions. Please send us your comments and suggestions using the web form located at https://support.avg.com/support_safe_surf. AVG VPN Tech accepts no obligation to respond or act on any such comments or suggestions and this invitation to comment does not constitute any admission of liability or product failure of a Solution, but you grant AVG VPN Tech a perpetual, irrevocable, transferrable, sublicensable, fully paid-up, royalty-free, worldwide right and license under your intellectual property rights (if any) to use, copy, record, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit in any manner whatsoever your comments and suggestions in any Solution and other products and services.
2.2. User Content. Certain Solutions may enable you to transmit or receive others data or information you have generated or obtained from other sources (“User Content”). You retain full ownership to your own User Content, including all intellectual property rights you already hold under applicable law in User Content that you transmit or receive through the Solution, subject to the rights, licenses, and other terms of this Agreement, including any underlying rights of others in any User Content that you may transmit or receive. You grant to AVG VPN Tech, a non-exclusive, unrestricted, unconditional, unlimited, worldwide, irrevocable, perpetual, and cost-free right and license to receive, access, reproduce, or record any User Content you receive through our Solution and to disseminate, distribute, reproduce, disclose, sell, re-sell, sublicense (through multiple levels), adapt, modify, display, publicly perform, transmit, publish, broadcast, translate, make derivative works of, and otherwise exploit (collectively, to “use,”) in any manner whatsoever, all or any portion of the User Content you transmit through a Solution (and derivative works thereof), solely for the purpose of providing the Solutions to you under this Agreement. Each time you transmit or receive any User Content, you represent and warrant that you are at least the age of majority in the state or other jurisdiction in which you reside and are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User Content you transmit or receive, and that, in regard to that User Content, (a) you are an owner or licensee of the intellectual property and other rights to the User Content, or you have a lawful right to use the User Content, and you grant AVG VPN Tech the right to use it as described in this Section, all without any AVG VPN Tech obligation to obtain consent of any third party and without creating any obligation or liability of AVG VPN Tech; (b) the User Content is accurate (to the extent that the User Content consists of factual data or information); (c) the User Content does not and, as to AVG VPN Tech’s permitted uses and exploitation set forth in this Agreement, will not, infringe any intellectual property or other right of any third party; and (d) the User Content and your actions with respect to it will not violate the Acceptable Use Policy, violate this Agreement, or cause injury or harm to any person. You agree and acknowledge AVG VPN Tech has a passive role in the transmission, reception and use of User Content that you transmit or receive, and AVG VPN Tech does not take any initiative in the transmission, reception, or use of User Content. Moreover, as between you and AVG VPN Tech, you agree and acknowledge that you are solely responsible for your use of User Content and that AVG VPN Tech cannot supervise, control, direct, choose, verify, investigate, or evaluate the User Content or your actions with respect to User Content that you transmit or receive using our service. You acknowledge that we may remove or disable access to any User Content, or interrupt any or all services, at any time at our own discretion. You understand and acknowledge that we have the right (but no obligation) to do so if we believe, or are notified, that you have breached any this Agreement (including copyright breach), or if we discontinue or restrict the service that enables you to transmit or receive User Content.
3. SUBSCRIPTION EXTENSIONS, TERMINATION.
To the extent you purchased your license directly from AVG VPN Tech under a separate written agreement or from a AVG VPN Tech business partner you are paying directly for your Solution, this provision and refund terms set forth in this Agreement may not apply to you. Please refer to your written agreement for subscription periods, renewals and refunds information.
3.1. Subscription Extensions. At the end of any Subscription Period, your subscription may extend for successive terms (each, an “Extension Period”) in accordance with this Section 3.1. If, under the Applicable Conditions for a given Solution, the Subscription Period automatically extends for an additional month, year or a similar consecutive time period, AVG VPN Tech may provide you with a notice that includes instructions on how to cancel your subscription at the end of the current Subscription Period. You may cancel your subscription at the end of the Subscription Period by following the instructions in the notice. You may also cancel your subscription at any time during the Subscription Period by visiting the Solution’s control panel. Canceling your subscription will stop recurring fees going forward, but will not retroactively refund current payments, and you will retain access to your paid-for Solutions until the end of the then-current Subscription Period. If you do not cancel the subscription, AVG VPN Tech will charge your credit card or debit card within a reasonable time prior to the end of the then-current Subscription Period for the then-current extension fee (which may be higher than the price you initially paid) and, on receipt of payment, will extend the Subscription Period for the applicable Extension Period.
3.2.1. For Mobile Solutions. The quickest way to obtain a refund on a Mobile Solution is to follow the process established by the Mobile App Store from which you purchased the Solution. If the Mobile App Store does not honor your refund request, but you are otherwise within 30 days of your initial purchase, you may be able to return your Mobile Solution for a refund of all amounts paid (other than for in-app purchases or subscriptions) by following the instructions at http://www.avg.com/billing.
3.2.2. Other Solutions. Certain other Solutions may be eligible for return and refund. Please see http://www.avg.com/billing.
3.3. Payment Information. In an effort to ensure your use of a Solution is not interrupted, AVG VPN Tech may participate in recurring billing programs or account updated services. If your Subscription Period automatically extends and AVG VPN Tech is unable to charge the credit card or debit card AVG VPN Tech has on file for you, AVG VPN Tech at its option may obtain an updated card number, expiration date or other updated payment information from your bank or another source, or your card issuer may automatically charge your card without notifying AVG VPN Tech or you. If you wish to use PayPal to purchase a subscription, you must open an account with PayPal and abide by the terms of service of PayPal, which can be found here.
3.4. Termination. AVG VPN Tech, in addition to such other rights as may be available at law, in equity or otherwise, may terminate your license to any or all Solutions without liability (i) for convenience on five (5) days’ prior notice, provided that AVG VPN Tech, in its sole discretion, shall for paid Solutions, either (a) refund to you the fees you paid to AVG VPN Tech in respect of the unexpired portion of the applicable Subscription Period, pro-rated over the applicable Subscription Period, or (b) grant a license for a substantially similar product for the remainder of the Subscription Period, or (ii) for cause at any time without notice. For the avoidance of doubt, for Free Solutions and Beta Solutions, AVG VPN Tech shall have no further obligation to you beyond providing five (5) days’ prior notice to terminate for convenience in accordance with this Section, and shall have no obligation to provide notice in the case of a termination for cause.
3.5. Effect of Termination. On the expiration of the applicable Subscription Period for any relevant Solution or termination of the Subscription Period for any relevant Solution or this Agreement, you shall cease using the relevant Solutions, AVG VPN Tech may cease making Updates available to you, and the relevant Solution may cease functioning. Sections 1, 2.6, 2.7, 4, 5, 6, 7, 8, 9, 10 and 11 will survive the expiration or termination of this Agreement.
4. SPECIAL TERMS FOR MOBILE APPS.
4.1.1. Purchase of Solutions Through a Mobile App Store. Each Mobile App Store posts the terms on which it sells Solutions to you, including the terms on which the Mobile App Store may (or may not) accept returns or grant refunds of the purchase price you pay. You should review those terms carefully before making your purchase.
4.1.2. Use of Solutions. At the same time, this Agreement, not the standard end user license or other terms made available to you by a Mobile App Store, governs your use of all Solutions. Each Mobile App Store, though, requires that AVG VPN Tech make certain disclosures and disclaimers, all of which provided in the remainder of this Section 4.
4.2. Solutions Downloaded from Google Play.
4.2.1. Google Play Store. The Google Play Store means the Mobile App Store available through a Device and at http://play.google.com (“Google Play Store”). For the avoidance of doubt, the license granted in Section 2.1 of the Agreement is in lieu of any rights to use a Solution that would otherwise be granted by the default terms for applications downloaded from the Google Play Store.
4.3. Solutions Downloaded from an Apple App Store. The following additional terms apply for any Solution acquired through the iTunes App Store (https://itunes.apple.com/us/genre/ios/id36?mt=8) and the Mac App Store (https://itunes.apple.com/us/genre/mac/id39?mt=12) (each, an “Apple App Store”):
4.3.1. The licenses granted by Section 2.1 are limited to a non-transferable license to use the Solution on any iPhone, iPod Touch or other Apple-powered Device that you own or control and as permitted by the Usage Rules set forth in the Apple App Stores Terms of Service, available online at http://www.apple.com/legal/internet-services/itunes/us/terms.html or through such sites and other means made available to you by Apple.
4.3.2. AVG VPN Tech and you acknowledge and agree that:
(a) This Agreement is concluded solely between the parties, and not with Apple. AVG VPN Tech, not Apple, is solely responsible for the Solutions and the content thereof.
(b) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Solution.
(c) If the Solution fails to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Solution to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Solution, and that, as between you, AVG VPN Tech and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be AVG VPN Tech’s sole responsibility.
(d) AVG VPN Tech, not Apple, is responsible for addressing any claims by you or any third party relating to the Solution or your possession and/or use of that Solution, including, but not limited to: (i) product liability claims; (ii) any claim that the Solution fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) In the event of any third party claim that the Solution or your possession and use of that Solution infringes that third party’s intellectual property rights, AVG VPN Tech, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
(f) Apple and Apple's subsidiaries are third party beneficiaries of this Agreement and, on your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary.
5. THIRD PARTY MATERIALS; THIRD PARTY TERMS AND CONDITIONS.
AVG VPN Tech, directly or through a Solution, may present links to or offers for Third Party Materials, all of which are controlled by third parties and most of which are subject to Third Party Terms and Conditions. Please read those conditions carefully before accepting them. AVG VPN Tech is not responsible for the content or performance of any such Third Party Materials, does not warrant or endorse any such Third Party Materials or assume or have any liability whatsoever to you or any third party with respect to such Third Party Materials. If you access, download or use such Third Party Materials, you do so entirely at your own risk.
6.1. AVG VPN Tech reserves all rights in the Solutions not expressly granted by this Agreement. All copyrights, trademarks and other conceivable intellectual property rights in and to the Solution (including, but not limited to, data files, images appearing in the Solution and screen displays as well as any and all documentation relating to the Solution) are owned by AVG VPN Tech or its licensors, and are protected by United Kingdom and foreign copyright laws, international treaties and other applicable laws. Any copy of a Solution you are permitted to create pursuant to this Agreement must contain the entire copyright notice and other notices included with the original copy of the Solution.
6.2. Any trade names, trademarks, service marks, logos, domain names or other distinctive brand features used with, on or relating to any third party products or services including Third Party Materials available on or through a Solution are the property of the third party providers or their respective licensors.
7.1. DISCLAIMER. AVG VPN TECH PROVIDES EACH SOLUTION ON AN “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” BASIS, AND AVG VPN TECH AND ITS GROUP COMPANIES, AGENTS, LICENSORS, REPRESENTATIVES, SUPPLIERS, DISTRIBUTORS, RESELLERS, WIRELESS CARRIERS OVER WHOSE NETWORK THE SOLUTION IS PROVIDED, OR OTHER BUSINESS PARTNERS AND EACH OF THEIR RESPECTIVE GROUP COMPANIES, REPRESENTATIVES, VENDORS, AGENTS AND SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE SOLUTIONS, MEDIA AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, WHETHER GIVEN BY ANY THIRD PARTY LICENSORS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, ANY IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY OR CONDITION OF NONINFRINGEMENT. AVG VPN TECH DOES NOT WARRANT THAT THE OPERATION OF THE SOLUTIONS WILL BE UNINTERRUPTED OR ERROR FREE, THAT THE SOLUTIONS WILL WORK PROPERLY ON ANY GIVEN DEVICE OR WITH ANY PARTICULAR CONFIGURATION OF HARDWARE AND/OR SOFTWARE, OR THAT THE SOLUTIONS WILL PROVIDE COMPLETE PROTECTION FOR THE INTEGRITY OF SELECTED DATA, INFORMATION OR CONTENT STORED OR TRANSMITTED VIA THE INTERNET. Some jurisdictions do not allow limitations on certain warranties, so the above limitations may not apply to you. You may have other rights that vary from jurisdiction to jurisdiction.
7.2. Hazardous Environments. Solutions are not designed or licensed for use in hazardous environments, including without limitation operation of nuclear facilities, aircraft navigation systems, aircraft communication systems, air traffic control, life support or weapons systems and any other environment in which bodily injury or death could result from failure of or inability to use any Solution. Without limiting the provisions of Section 7.1 of this Agreement, AVG VPN Tech and its licensors hereby disclaim any express or implied warranties of fitness for such purposes or uses.
8. Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AVG VPN TECH OR ITS GROUP COMPANIES, AGENTS, LICENSORS, REPRESENTATIVES, SUPPLIERS, DISTRIBUTORS, RESELLERS, WIRELESS CARRIERS OVER WHOSE NETWORK THE SOLUTION IS PROVIDED OR OTHER BUSINESS PARTNERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, WITHOUT REGARD TO CAUSE OR THEORY OF LIABILITY, OR ANY DAMAGES (WHETHER DIRECT OR INDIRECT) INCURRED FOR LOSS OF BUSINESS, PROFITS OR REVENUE, LOSS OF PRIVACY, LOSS OF USE OF ANY DEVICE OR SOLUTION INCLUDING THE SOLUTION, COSTS OF PROCURING SUBSTITUTE OR REPLACEMENT GOODS AND SERVICES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER PECUNIARY LOSS ARISING OUT OF THIS AGREEMENT OR THE SOLUTION PROVIDED HEREUNDER, EVEN IF AVG VPN TECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AVG VPN TECH WILL NOT BE LIABLE FOR ANY UNAUTHORIZED ACCESS TO, OR ANY CORRUPTION, ERASURE, THEFT, DESTRUCTION, ALTERATION, INADVERTENT DISCLOSURE OR LOSS OF DATA, INFORMATION OR CONTENT TRANSMITTED, RECEIVED OR STORED BY OR IN CONNECTION WITH A SOLUTION REGARDLESS OF THE CAUSE. IN NO EVENT SHALL AVG VPN TECH’S LIABILITY RELATED TO ANY SOLUTION EXCEED THE LESSER OF (I) THE FEES YOU ACTUALLY PAID OR ARE REQUIRED TO PAY FOR THE SOLUTION, AND (II) THE AVG VPN TECH SUGGESTED RETAIL PRICE FOR THE SOLUTION AS OF THE DATE YOU RECEIVED IT OR, WITH RESPECT TO A FREE SOLUTION OR BETA SOLUTION, US$5.00. THE FOREGOING LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
YOU WILL INDEMNIFY, DEFEND AND HOLD HARMLESS AVG VPN TECH, ITS GROUP COMPANIES, AGENTS, LICENSORS, REPRESENTATIVES, SUPPLIERS, DISTRIBUTORS, RESELLERS AND OTHER BUSINESS PARTNERS, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND REPRESENTATIVES FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, RESULTING FROM YOUR USE OF THE SOLUTION OR ANY VIOLATION OF THIS AGREEMENT BY YOU, INCLUDING BUT NOT LIMITED TO ANY BREACH OR ALLEGED BREACH OF ANY OF YOUR REPRESENTATIONS, WARRANTIES, OBLIGATIONS OR UNDERTAKINGS HEREUNDER. AVG VPN TECH RESERVES THE RIGHT TO ASSUME, AT ITS SOLE EXPENSE, THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU, IN WHICH EVENT YOU WILL FULLY COOPERATE WITH AVG VPN TECH IN ASSERTING ANY AVAILABLE DEFENSES.
10. Governing Law; ARBITRATION.
10.1. Applicability of Section 10 based on Country of Residence. The construction, validity and performance of this Agreement and all non-contractual obligations arising from or connected with this Agreement shall be governed by in accordance with the following sentence. If you are an individual located in, or your business has a principal place of business in or is incorporated (a) anywhere in the world except for the United States, the construction, validity and performance of this Agreement and all non-contractual obligations arising from or connected with this Agreement shall be handled solely in accordance with the procedures set forth in Section 10.2; (b) in the United States, all Disputes (as defined in Section 10.3) will be handled solely by the procedures laid out in Section 10.3.
10.2. Jurisdiction and Applicable Law – Other than United States. Each Party irrevocably agrees to submit to the exclusive jurisdiction of the courts sitting in London, England over any claim or matter arising under or in connection with this Agreement. For purposes of any such court proceeding, you consent to, and will not challenge, an English or Welsh court’s personal jurisdiction over you, and you further waive objection based upon improper venue or forum non conveniens and will not seek to prosecute a legal proceeding in, or transfer one to, another district or jurisdiction. These terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales excluding conflict of laws principles. For avoidance of doubt, application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
10.3. Binding Arbitration Agreement and Class Action Waiver – United States.
10.3.1. Application. This Binding Arbitration Agreement and Class Action Waiver applies to any Dispute arising from or related to a Solution or this Agreement and involving you and AVG VPN Tech and/or its Group Companies. “Dispute,” for purposes of this Section 10, 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, fraud, and violation of statute or regulation).
10.3.2. Notice. In the event of a Dispute, you must provide AVG VPN Tech with a notice of Dispute, which is a written statement of the name, address and contact information of the party giving it, the facts giving rise to the Dispute, and the relief requested. You must send any Notice of Dispute by email to AVG VPN Tech at firstname.lastname@example.org (stating Subject: Section 10.3.2 Notice of Dispute Under EULA).
10.3.3. CLASS ACTION WAIVER. 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.
10.3.4. Agreement to Arbitrate. If you and AVG VPN Tech 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, except as provided in Sections 10.5 and 10.8.2, below. Except as provided in Sections 10.5 and 10.8.2, 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.
10.3.5. Exceptions to Agreement to Arbitrate.
(a) Small Claims Court. 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.
(b) Intellectual Property. All Disputes concerning any alleged misappropriation of your or AVG VPN Tech's intellectual property, including any Disputes concerning Section 6 of this Agreement, will be resolved in court.
10.3.6. Arbitration Procedures. 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”).
(a) Arbitration Costs. The Consumer Procedures provide for certain fees, specifically allocating some to the consumer (you) and others to the business (AVG VPN Tech). If your claim is US$75,000 or less, AVG VPN Tech will pay all of those specified fees and costs, including those allocated to the consumer. AVG VPN Tech does not agree to bear any other costs. If your claim is more than US$75,000, the Consumer Procedures will govern payment.
(b) Laws And Rules Governing Arbitration. Except as provided in Section 10.8, the AAA's Consumer Procedures shall 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. In ruling on a Dispute, the neutral arbitrator will apply the terms of this Agreement and the laws of the State of Delaware. 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) shall have the discretionary authority to require a face-to-face hearing upon the request of a party.
(c) AAA Not Integral To Agreement To Arbitrate. You and AVG VPN Tech 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 AVG VPN Tech shall negotiate in good faith to agree on a sole arbitrator who shall 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 shall follow the AAA's Consumer Procedures.
10.3.7. Severability. If one or more parts of Section 10 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 Section 10 and all other provisions of this Agreement. If such severance results in all of some parts of a Dispute proceeding in a court of law, exclusive jurisdiction for any such court proceeding shall be the state or federal courts sitting in the State of Delaware. For purposes of any such court proceeding, you consent to, and will not challenge, the Delaware 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.
10.3.8. Business Customers Disputes. If you purchased a Solution for other than personal or household use, all Disputes will be subject to Sections 10.1 through 10.7, with the following exceptions:
(a) Arbitration Procedures. 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.
11.1. Notice. AVG VPN Tech may at any time deliver any notice to you via electronic mail, pop-up window, dialog box or other means, even though in some cases you may not receive the notice unless and until you launch a Solution. Any such notice will be deemed delivered on the date AVG VPN Tech first makes it available through a Solution, irrespective of when you actually receive it.
11.2. Interpretation. The headings in this Agreement do not affect its interpretation. The use of any gender includes all genders. The singular includes the plural and vice-versa. Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.
11.3. Severability. Should any provisions of this Agreement be deemed illegal, invalid or unenforceable under any applicable laws and regulations, all other provisions of this Agreement shall remain in full force and effect.
11.4. Impossibility. AVG VPN Tech shall be not liable for any failure or delay in performance due in whole or in part to any cause beyond its reasonable control, including but not limited to utility or transmission failures, failure of phone lines or phone equipment, power failure, strikes or other labor disturbances (including without limitation a strike or other labor disturbance arising in respect of AVG VPN Tech and its Group Companies, agents, licensors, representatives, suppliers, distributors, resellers and other business partners), acts of war or terror, floods, sabotage, fire, natural or other disasters or Acts of God.
11.5. Waiver. The failure of either party to insist on the strict performance of any of the terms, conditions and provisions of this Agreement shall not be construed as a waiver or relinquishment of future compliance with the Agreement, and the terms, conditions and provisions of this Agreement shall remain in full force and effect. No waiver of any term or condition of this Agreement on the part of either party shall be effective for any purpose whatsoever unless such waiver is in writing and signed by such party. The waiver by either party of a breach of any provision of this Agreement by the other party shall not be construed as a continuing waiver of such breach or as a waiver of other breaches of the same or of other provisions of this Agreement.
11.6. Assignment. You may not assign your rights or obligations under this Agreement without the prior written consent of AVG VPN Tech. AVG VPN Tech may assign this Agreement at any time in its sole discretion without any prior written consent by you.
11.7. Construction. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded. In the event that an ambiguity or question of intent or interpretation arises, in any judicial proceeding or otherwise, the terms of this Agreement shall be construed as having been drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
11.8. U.S. Government License. Any Solution provided to the U.S. Government is provided with the commercial license rights and restrictions described elsewhere herein. AVG VPN Tech reserves all unpublished rights under the United States copyright laws.
11.10. 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., U.K. and other governments. Without derogating from the generality of the foregoing, (i) you represent that you are not a member of any of the denied person list, unverified list, entity list, specially designated nationals list, debarred list or any other lists published by the U.S. or U.K. Government, (ii) you shall not use, export or re-export the Solution to territories, destinations, companies or individuals in violation of U.S. and E.U. embargos or trade sanctions, including without limitation, in the following countries: Cuba, Iran, North Korea, Sudan and Syria.
11.11. No Third Party Beneficiaries. This Agreement is intended solely for the benefit of you and AVG VPN Tech and/or its Group Companies, and their respective agents, licensors, representatives, suppliers, distributors, resellers and other business partners. Other than as provided in Section 4.3.2(f), no person not a party to this Agreement may bring a cause of action pursuant to this Agreement as a third party beneficiary hereof.
11.12. Language. This Agreement was originally prepared in the English language. Although AVG VPN Tech may provide one or more translations for your convenience, the English version will control in the case of any conflict or discrepancy.
11.13. Internet connection. Certain Solutions may require an active and stable connection to the Internet in order to function. It is therefore your responsibility to ensure that you have at all times an active and stable Internet connection.
11.14. Product names. AVG VPN Tech reserves the right to change the name of its Solutions in its sole discretion from time to time.
11.15. Contact Information. AVG VPN Tech may be contacted at email@example.com.
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