TOTAL DEFENSE END USER LICENSE AGREEMENT

This is the Total Defense, Inc. (“Total Defense“) End User License Agreement (the “Agreement“) for the Total Defense software product that is being installed as well as the associated documentation, as defined below, included within the product (the “Product“).

Carefully read the following terms and conditions regarding your use of the Product before installing and using the Product. Throughout this Agreement, you will be referred to as “You” or “Licensee.”

By accepting the terms of this Agreement during installation or otherwise using the Product, you are:

  1. Representing that you are not a minor, and have full legal capacity and have the authority to bind yourself and your employer, as applicable, to the terms of this Agreement;
  2. Consenting on behalf of yourself and/or as an authorized representative of your employer, as applicable, to be bound by this Agreement.

If you do not accept the general conditions of this agreement, please do not install or use the Product.

  1. Total Defense provides Licensee with one copy of the Software (“Product”), for use by a single user, or the quantity designated as the authorized use limitation (“Authorized Use Limitation”) on any packaging, website content referencing the terms of this Agreement or instructions included within the Product packaging. You can view your available and used licenses anytime at www.totaldefense.com/myaccount. Total Defense licenses the Product to Licensee on a non-exclusive basis, pursuant to the terms of this Agreement
    You may not, nor may You permit any other person to:
    1. sublicense, rent or lease any portion of the Product;
    2. reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Product or create derivative works from the Product;
    3. provide, offer or make available the Software and Services as part of a facility management, timesharing, service provider or service bureau arrangement; or
    4. use the Product in any manner that is not permitted pursuant to this License Agreement.
    5. Total Defense Unlimited Internet Security and Total Defense Premium Internet Security are for household (Personal) use only. To use for a Business contact support to obtain a commercial use license.

    The Product may include third party features and functionalities or may access content on a third party website. Such features, functionalities or content may be subject to such third party terms of service and privacy policies.

  2. If the Product is an alpha or beta version of the program, hereinafter referred to as the “beta program” or “beta version” and not generally available to date, Total Defense does not guarantee that the generally available release will be identical to the beta program or that the generally available release will not require re-installation. Licensee agrees that if it registers for support or if otherwise required by Total Defense, Licensee shall provide Total Defense with specific information concerning Licensee’s experiences with the operation of the Product. Licensee agrees and acknowledges that the beta version of the Product (a) is to be used only for testing purposes and not to perform any production activities unless Total Defense shall have otherwise approved in writing and (b) has not been tested or debugged and is experimental and that the documentation may be in draft form and will, in many cases, be incomplete. Licensee agrees that Total Defense makes no representations regarding the completeness, accuracy or Licensee’s use or operation of the beta version of the Product. BETA PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS OF TITLE OR NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. If Licensee is also a Tester of the beta version of the Product (as “Tester” is defined by the Beta Testing Agreement that was agreed to by Licensee during the registration process before obtaining the beta version of the Product), Licensee agrees that the terms of this Agreement are in addition to, and do not supersede, the terms of the Beta Testing Agreement.
  3. If the Product is being licensed on a trial or evaluation basis (including Alpha and Beta Products), Licensee agrees to use the Product solely for evaluation purposes, in accordance with the usage restrictions set forth in Section 1, for a thirty-day evaluation period unless a different period is otherwise noted (the “Trial Period”). At the end of the Trial Period, Licensee’s right to use the Product automatically expires and Licensee agrees to un-install the Product If Licensee desires to continue its use of the Product beyond the Trial Period, Licensee may contact Total Defense or visit www.totaldefesne.com to acquire a license to the Product for the applicable fee. LICENSEE’S USE OF THE PRODUCT DURING THE TRIAL PERIOD IS ON AN “AS IS” BASIS WITHOUT ANY WARRANTY, AND TOTAL DEFENSE DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OR REPRESENTATIONS OF TITLE OR NON-INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY EXPRESS WARRANTIES PROVIDED ELSEWHERE IN THIS AGREEMENT.
  4. Free Products: If the Product that you download or otherwise receive is free software (“Free Software”), then this section of the Agreement shall also apply. To the extent that any provision in this section is in conflict with any other term or condition in this Agreement, this section shall supersede such other term(s) and condition(s) with respect to such Free Software, but only to the extent necessary to resolve the conflict. ALL FREE SOFTWARE IS PROVIDED AS IS, WITHOUT ANY WARRANTY, INDEMNITY, MAINTENANCE OR SUPPORT, EXPRESS OR IMPLIED, SUBJECT TO ANY STATUTORY RIGHTS THAT CANNOT BE EXCLUDED OR LIMITED BY LAW. YOU ACKNOWLEDGE THAT FREE SOFTWARE MAY CONTAIN BUGS, ERRORS AND OTHER PROBLEMS THAT COULD CAUSE SYSTEM OR OTHER FAILURES AND DATA LOSS. YOU ACKNOWLEDGE THAT TOTAL DEFENSE IS NOT LIABLE FOR ANY DAMAGE CAUSED TO YOU OR YOUR SYSTEM. YOU ACKNOWLEDGE THAT WE HAVE NOT PROMISED OR GUARANTEED TO YOU THAT FREE SOFTWARE WILL BE ANNOUNCED OR MADE AVAILABLE TO ANYONE IN THE FUTURE, THAT WE HAVE NO EXPRESS OR IMPLIED OBLIGATION TO YOU TO ANNOUNCE OR INTRODUCE FREE SOFTWARE, AND THAT WE ARE NOT OBLIGATED TO INTRODUCE A PRODUCT SIMILAR TO OR COMPATIBLE WITH FREE SOFTWARE OR ANY UPDATES TO ANY FREE SOFTWARE. ACCORDINGLY, YOU ACKNOWLEDGE THAT ANY USE OF THE FREE SOFTWARE IS ENTIRELY AT YOUR OWN RISK.
  5. Payment of the license fees, specified on the order form set forth on Total Defense’s digital store (“Order Form”) or as agreed between Licensee and an authorized reseller, or as set forth in the terms of the subscription with a Total Defense Service Provider, shall entitle Licensee to use the Product for the term specified on the Order Form, the term specified on the packaging if purchased from an authorized reseller, or as agreed under the terms of the subscription with the service provider (the “Term”), which use may include the right to receive product support services, virus definition updates, Product updates, and Product upgrades. All fees payable hereunder shall be payable in advance. Licensee will install each new release of the Product delivered to Licensee. After the Term, continued usage and/or maintenance of the Product as provided herein shall be subject to the payment by Licensee of the then current renewal price plus applicable taxes. Notwithstanding the foregoing, with respect to any Product that relies on continuous content updates, such as signature files and security updates, Licensee shall be entitled to such content updates for a period specified by the Term from the effective start date of the Term.
  6. Software and Services and Content Updates. Licensee shall have the right to receive new features to and versions of the Product and Services as Total Defense, in its sole discretion, makes such features and versions available during the Term. Total Defense continually strives to improve the usability and performance of its products and services. In order to optimize the Product and Services, and to provide You with the most current version of the Software and Services, You agree the Software and Services may download and install new updates and versions of the Software and Services as they are made available by Total Defense in its sole discretion. You agree to receive and permit Total Defense to deliver such new updates and versions to Your Device. Additionally, Total Defense may modify the terms and conditions that apply to Your use of the Software and Services to reflect such updates and versions and You agree to such updated
  7. The effective start date of the Term will begin: (a) if you purchased the Product from totaldefense.com, on the date of Your purchase, or (b) if You purchased the Product through any other channels, on the date of your initial installation or use of the Product or installation or use of any other software bundled with the Product, on a computer, virtual environment, mobile or mobile computing device (a “Device”). The Term will last for the period of time set out in the Documentation or the applicable transaction documentation from the authorized distributor or reseller from which You obtained the Software. The Product may automatically deactivate and become non-operational at the end of the Term, and You will not be entitled to receive any feature or content updates to the Software unless the Term is renewed.
  8. If your Product is enrolled in the Automatic Renewal Service it will automatically renew each year and you agree to permit Total Defense to automatically renew your subscription by charging the credit card number which you have provided to Total Defense. Total Defense will notify you, using the email you used to register your Product, thirty (30) days prior to your subscription expiration (end of The Term) that your subscription will be automatically renewed and your credit card on file will be charged at the current renewal rate plus applicable sales tax. It is Your responsibility to ensure your current email address is available within your online account at www.totaldefense.com/myaccount. If you do not want your subscription automatically renewed, you may discontinue the Automatic Renewal Service at any time. To cancel the Automatic Renewal Service simply log into your Total Defense account and select the option “Cancel Automatic Renewal Service”. All fees are net of applicable taxes. Licensee agrees to pay any tariffs, duties or taxes imposed or levied by any government or governmental agency including, without limitation, federal, state and local, sales, use, value added and personal property taxes, (other than franchise and income taxes for which Total Defense is responsible) upon a presentation of invoices by Total Defense. Any claimed exemption from such tariffs, duties or taxes must be supported by proper documentary evidence delivered to Total Defense.
  9. Licensee may use the Product as provided herein solely to process his/her/its own data and the data of its majority-owned subsidiaries and use is restricted to the location, computer equipment, and Authorized Use Limitation specified on the Order Form, documentation, or product packaging, as applicable. If Licensee desires to use the Product beyond such restrictions, it shall submit a request to Total Defense, and Licensee will be invoiced for and shall pay the applicable fees for such expanded use if such use is approved by Total Defense.
  10. The Product, including any source or object code that may be provided to Licensee hereunder, as well as documentation, appearance, structure and organization, is the proprietary property of Total Defense and/or its licensors, if any, and may be protected by copyright, patent, trademark, trade secret and/or other laws. Title to the Product, or any copy, modification, translation, partial copy, compilation, derivative work or merged portion of any applicable SDK, shall at all times remain with Total Defense and/or its licensors. Usage rights respecting the Product may not be exchanged for any other Total Defense product. The Product is licensed as a single product. Its component parts may not be separated for use. Licensee and its employees will keep the Product and the terms of this license strictly confidential and use its best efforts to prevent and protect the Product from unauthorized disclosure or use. Licensee may not (and shall not allow any third party to) (i) disclose, de-compile, disassemble nor otherwise reverse engineer the Product or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programing interfaces of the Product by any means whatsoever except to the extent the foregoing restriction is expressly prohibited under applicable law, and then only with prior written notice to the respective owners; (ii) create any derivative works based on the Product; (iii) use the Product to provide facilities or in connection with a service bureau or like activity whereby Licensee, without purchasing a license from Total Defense for such purpose, operates or uses the Product for the benefit of a third party who has not purchased a copy of the Product; (iv) permit the use of the Product by any third party without the prior written consent of Total Defense (v) distribute, sell, sublicense, rent, lease or use the Product (or any portion thereof) for time sharing, hosting, provision of services or like purposes or (vi) remove any product identification proprietary, copyright or other notices contained in the Product Licensee shall not release the results of any benchmark testing of the Product to any third party without the prior written consent of Total Defense. Licensee will not transfer, assign, rent, lease, use, copy or modify the product, in whole or in part, or permit others to do any of the foregoing with regard to the Product without Total Defense’s prior written consent, except to the extent the foregoing restriction is expressly prohibited under applicable law. Licensee will not remove any proprietary markings of Total Defense or its licensors. The Product may be used only within the boundaries of the country where the Product was purchased (except as otherwise provided on the Order Form) unless Total Defense consents otherwise in writing. If this license terminates for any reason, Licensee shall ensure that all copies and partial copies of the Product have been deleted from all computers and storage devices and are no longer in use.
  11. Licensee (You) acknowledges that the Product may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. Licensee shall comply with all relevant import and export regulations, including those adopted by the Office of Export Administration of the US Department of Commerce. Licensee shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Product or any direct product derived thereof: (i) into (or to a national or resident of) any embargoed or terrorist supporting country, (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals: (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (iv) otherwise in violation of any export restrictions, laws or regulations of any United States or foreign agency or authority. Licensee agrees to the foregoing and warrants that it is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Product is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without prior permission of the United States government. The Product and any accompanying documentation have been developed entirely at private expense. They are delivered and licensed as “commercial item” “computer software” as defined in FAR 2.101. For such purposes, the term “Product” and “Computer Program” shall have the same meaning hereunder. The Computer Program(s) was developed at private expense, is commercial, and is published and copyrighted. Third parties purchasing on behalf of a Federal Government agency shall only transfer the Computer Program(s) to the Government with “Restricted Rights” as that term is defined in FAR 52.227-19(c)(2) or DFAR 252.227-7015. All Software is provided FOB shipping point or electronic delivery. Acceptance is waived and deemed to have occurred at the earliest of point of physical shipment or delivery of keys/access codes for electronic delivery. Total Defense is the manufacturer of the Product.
  12. Government Users. The Program is commercial computer software. If the user or licensee of the Program is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Program, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this EULA in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Program was developed fully at private expense. All other use is prohibited.
  13. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, without regard to its choice of law provisions and without application of the United Nations Convention on the International Sale of Goods. As the exclusive means of resolving through adversarial dispute resolution any disputes arising out of this Agreement, a party may demand that any such dispute be resolved by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and each party hereby consents to any such disputes being so resolved. The place of arbitration shall be New York, New York. Judgment on the award rendered in any such arbitration may be entered in any court having jurisdiction.
  14. Online Backup. The Product may include an online backup feature, which provides the capability to store and retrieve Your data on Total Defense’s system via the Internet during the Term (“Online Backup Feature”), subject to the amount of online backup space provided with Your Product and/or which You additionally purchase.
    1. Availability. The Online Backup Feature is provided “AS-IS” and “AS AVAILABLE” and Total Defense will not be responsible to pay You for any loss or damage resulting from any downtime of the Online Backup Feature due to reasonable scheduled maintenance, maintenance for critical issues or forces beyond the reasonable control of Total Defense.
    2. User Conduct and Responsibility; Compliance with Applicable Laws. Use of the Online Backup Feature, including the transmission of any data You choose to store through the Online Backup Feature, (“Data”) is subject to all applicable local, state, national and international laws and regulations, including, but not limited, to the United States export laws. You agree to comply with such applicable laws and regulations and with the specifications set out in the Documentation or the applicable transaction documentation from the authorized distributor or reseller from which You obtained the Product and not to (i) use the Online Backup Feature for illegal purposes, (ii) transmit or store material that may infringe the intellectual property rights or other rights of third parties or that is illegal, tortious, defamatory, libelous, or invasive of another’s privacy; (iii) transmit or store data belonging to another party without first obtaining all consents required by law from the data owner for transmission of the data to Total Defense for storage within the United States; (iv) transmit any material that contains software viruses or other harmful computer code, files or programs such as trojan horses, worms or time bombs; (v) interfere with or disrupt servers or networks connected to the Online Backup Feature; or (vi) attempt to gain unauthorized access to the Online Backup Feature, the accounts of other Online Backup Feature users, or computer systems or networks connected to the Online Backup Feature.
    3. Your obligations in this Section regarding use of the Online Backup Feature apply to all use of the Online Backup Feature in connection with Your Total Defense account. You are solely responsible for the use of the Online Backup Feature, and the Data transmitted or stored through the Online Backup Feature, in connection with Your Total Defense account.
    4. To the maximum amount permissible under applicable law, You agree to pay Total Defense, its parents, subsidiaries, affiliates, officers, directors, employees and agents the amount of any claims, demands, costs, damages, losses, liabilities and expenses, including reasonable attorneys’ fees, made by any third party arising out of or in connection with use of the Online Backup Feature through Your Total Defense account to the extent any such claims, demands, costs, damages, losses, liabilities and expenses arise as a result of Your breach of this Agreement or Your negligence or willful misconduct. Such amount may include but is not limited to responsibility for payments of any such claims, demands, costs, damages, losses, liabilities and expenses arising out of or in connection with the Data transmitted or stored through the Online Backup Feature in connection with Your Total Defense account.
    5. Termination; Suspension. Your right to use the Online Backup Feature will terminate on expiration of the Term. Total Defense may immediately suspend or terminate use of the Online Backup Feature during the Term for Your failure to comply, or Total Defense’s reasonable belief that You have failed to comply with these terms and conditions (other than a trivial or inconsequential breach) or any other misuse of the Online Backup Feature. Following the expiration or termination of the Term:
      1. Total Defense may permanently delete any Data stored to the online backup space provided with Your Product;
      2. Total Defense will not be obligated to maintain such Data, forward such Data to You or a third party, or migrate such Data to another backup service or account; and
      3. You will not be able to store the Data to any additional backup space that You may have purchased separately unless and until the Term is renewed.
    6. Miscellaneous. Total Defense has no obligation to monitor use of the Online Backup Feature and/or Data transmitted or stored through the Online Backup Feature. To the maximum extent permissible under applicable law and notwithstanding the provisions below, Total Defense reserves the right at all times to monitor, review, retain and/or disclose any Data or other information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to investigate any use or suspected breach of this Agreement.
  15. Data and Privacy.
    1. From time to time, the Product may collect certain information, including personally identifiable information, from the Device on which it is installed, which may include:
      1. Data pertaining to the results of standard operation from product. This data will be used to populate Total Defense’s community information;
      2. Data pertaining to the results of the uninstall of a competitive product in order to ensure efficiencies and performance of future uninstall routines;
      3. Information on potential security risks as well as URLs and the Internet Protocol (IP) addresses of websites visited that the Product deems potentially fraudulent. The URLs could contain personally identifiable information that a potentially fraudulent website is attempting to obtain without Your permission. This information is collected by Total Defense for the purpose of delivering the functionalities of the Product, and also for evaluating and improving the ability of Total Defense’s products to detect malicious behavior, potentially fraudulent websites and other Internet security risks.
      4. Executable files and files that contain executable content that are identified as potential malware, including information on the actions taken by such files at the time of installation. These files are submitted to Total Defense using the Product’s automatic submission function. Such automatic submission function may be deactivated after installation by following the instructions in the Documentation for applicable products. The collected files could contain personally identifiable information that has been obtained by the malware without Your permission. Files of this type are being collected by Total Defense only for the purpose of improving the ability of Total Defense’s products to detect malicious behavior.
      5. The name given to the Device during the initial setup of such Device. If collected, the name will be used by Total Defense as an account name for the Device under which You may elect to receive additional services and/or under which You may use certain features of the Product. You may change such account name at any time after installation of the Product and it is recommended that You do so.
      6. Status information regarding installation and operation of the Product. This information indicates to Total Defense whether installation of the Product was successfully completed as well as whether the Product has encountered an error. The status information could contain personally identifiable information only if such information is included in the name of the file or folder encountered by the Product at the time of installation or error. The status information is collected by Total Defense for the purpose of evaluating and improving Total Defense’s product performance and installation success rate. Total Defense may also use this information to optimize its web pages.
      7. Information contained in a report that You may choose to send through the Product to Total Defense when the Product encounters a problem. The report includes information regarding the status of both the Product and Your Device at the time that the Product encountered the problem. The status information about Your Device may include the system language, country locale, and the operating system version for Your Device, as well as the processes running, their status and performance information, and data from files or folders that were open at the time the Product encountered the problem. The information could contain personally identifiable information if such information is included in, or is a part of the name of the files or folders open at the time the Product encountered the problem. This information will be sent to Total Defense only with Your permission, and will not be sent automatically. The information is collected by Total Defense for the purpose of correcting the encountered problem and improving Total Defense’s product performance. This information will not be correlated or matched up with any personally identifiable information.
      8. The Internet Protocol (IP) address and/or Media Access Control (MAC) address and the Machine ID of the Device on which the Product is installed to enable the Product to function and for license administration purposes.
      9. Other general, statistical information used for product analysis, and for improving product functionality.
    2. Unless it is expressly defined as optional, the collected information as set out above is necessary for the purpose of the functionality of Total Defense’s products. Information may be transferred to Total Defense in the United States or other countries that may have less protective data protection laws than the region in which You are situated (including the European Union) and may be accessible by Total Defense employees or contractors exclusively to be used in accordance with the purposes described above. For the same purposes the information may be shared with partners and vendors that process information on behalf of Total Defense. Total Defense has taken steps so that the collected information, if transferred, receives an adequate level of protection.
    3. Subject to applicable laws, Total Defense reserves the right to cooperate with any legal process and any law enforcement or other government inquiry related to Your use of this Product. This means that Total Defense may provide documents and information relevant to a court subpoena or to a law enforcement or other government investigation. In order to promote awareness, detection and prevention of Internet security risks, Total Defense may share certain information with research organizations and other security software vendors. Total Defense may also use statistics derived from the information to track and publish reports on security risk trends. By using the Product, You acknowledge and agree that Total Defense may collect, transmit, store, disclose and analyze such information for these purposes.
    4. Data that You transmit or store through the Online Backup Feature will be transferred to and stored in servers located in countries that may have less protective data protection laws than the country in which You are located (including without limitation the United States). These servers are owned and maintained by a third party processor which Total Defense has required by contract to safeguard Your Data. If you have any questions about how Your Data is being handled, please contact Total Defense Customer Service.
  16. The Product may include third party features and functionalities or may access content on a third party website. Such features, functionalities or content may be subject to such third party terms of service and privacy policies. If the Product contains third party software, and the licensor requires the incorporation of specific license terms and conditions for such software into this Agreement, those specific terms and conditions, which are hereby incorporated by this reference, are located below this Agreement. Licensee acknowledges that this license has been read and understood that by installing and using the product, licensee accepts its terms and conditions.
  17. Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Total Defense and its suppliers have and will retain all rights, title and interest (including without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) in and to the Product and all copies, modifications and derivative works thereof. You acknowledge that You are obtaining only a limited license right to the Product and that irrespective of any use the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise. If requested, Licensee shall certify in writing that Licensee is using the Product for the number of servers, with the number of copies, on the system configuration at the site agreed upon by the parties (as applicable). End User agrees that no more than once annually its use of the Product may be audited by Total Defense (or and independent auditor work on such party’s behalf) during normal business hours upon reasonable advance written notice for the purpose of verifying Licensee’s compliance with this EULA. End User (You) acknowledges that Bitdefender has a substantial interest in the in the Program or some of its components and that, if this EULA is not directly with Bitdefender, then Bitdefender is a third party beneficiary to this EULA.
  18. Confidentiality. Licensee acknowledges that it may obtain information relating to the Product or Total Defense and its licensors, including but not limited to, any code, technology, know-how, ideas, algorithms, testing procedures, structure, interfaces, specifications, documentation, bugs, problem reports, analysis and performance information and other technical, business, product, and data (“Confidential Information”). Licensee shall not disclose Confidential Information to any third party or use Confidential Information for any purpose other than the use of the Product as licensed under the EULA.
  19. Total Defense warrants that it can enter into this Agreement and that it will indemnify, hold Licensee harmless, and defend or, at its option, settle any claim that Total Defense is so authorized or that Licensee’s use of the Product as authorized hereby infringes any patent, copyright or other intellectual property right of any third party. Total Defense also warrants that the Product will operate in accordance with its published specifications, provided that Total Defense’s only responsibility will be to use reasonable efforts, consistent with industry standards, to cure any defect. The foregoing warranty respecting the operation of the Product will be in during a period of sixty (60) days from Licensee’s acquisition of license for the Product (the date of purchase). If, within a reasonable time after receiving Licensee’s written notice of breach of either of the above warranties, Total Defense is unable to cause the Product to operate (a) without infringing a third party’s intellectual property rights, or (b) in accordance with Total Defense’s written specifications, then either party may terminate this Agreement on written notice to the other party and Total Defense or the authorized reseller will refund the relevant license fees paid for such non-compliant Product only when Licensee returns the Product to Total Defense or its authorized reseller from whom it obtained the Product, with the purchase receipt within the warranty period noted above. The warranties set forth in this Section do not apply to beta versions of the Product, Product licensed on a free, trial or evaluation basis or to SDKs.
  20. Warranty Disclaimer. EXCEPT FOR ANY EXPRESS LIMITED WARRANTY OFFERED BY TOTAL DEFENSE FOR WHICH LICENSEES REMEDY IS LIMITED TO REPAIR, REPLACEMENT OR REFUND BY TOTAL DEFENSE, THE SOFTWARE IS PROVIDED “AS IS” AND NO WARRANTIES ARE MADE TO ANY PERSON OR ENTITY WITH RESPECT TO THE SOFTWARE OR ANY SERVICES AND TOTAL DEFENSE DISCLAIMS ON ITS OWN BEHALF AND THAT OF ITS LICENSORS, INCLUDING BITDEFENDER. ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
  21. EXCEPT AS SET FORTH ABOVE, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW:

    22. NO OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE MADE BY TOTAL DEFENSE;

    1. IN NO EVENT WILL TOTAL DEFENSE OR ITS LICENSORS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY TO LICENSEE OR ANY OTHER PARTY FOR ANY CLAIM FOR LOSS, INCLUDING TIME, MONEY, GOODWILL, AND SPECIAL OR CONSEQUENTIAL DAMAGES, WHICH MAY ARISE FROM THE USE, OPERATION OR MODIFICATION OF THE PRODUCT, EVEN IF TOTAL DEFENSE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT THE ABOVE LIABILITY LIMITATION IS FOUND TO BE INVALID UNDER APPLICABLE LAW, THEN TOTAL DEFENSE’S TOTAL LIABILITY FOR SUCH CLAIM SHALL BE LIMITED TO THE AMOUNT OF THE LICENSE FEE ACTUALLY PAID FOR THE PRODUCT BY LICENSEE. NEITHER OEM NOR ITS LICENSORS SHALL BE LIABLE FOR LOSS OR INACCURACY OF DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, SYSTEM DOWNTIME, FAILURE OF SECURITY MECHANISMS, GOODWILL, PROFITS OR OTHER BUSINESS LOSS, REGARDLESS OF LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO THIRD PARTY, INCLUDING AGENTS, DISTRIBUTORS, OR AUTHORIZED TOTAL DEFENSE RESELLERS IS AUTHORIZED TO MODIFY ANY OF THE ABOVE WARRANTIES OR MAKE ANY ADDITIONAL WARRANTIES ON BEHALF OF TOTAL DEFENSE. TOTAL DEFENSE DOES NOT WARRANT THAT THE PRODUCT WILL MEET LICENSEE’S REQUIREMENTS OR THAT USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE.
    2. THE PARTIES AGREE THAT THE LIMITATIONS OF THIS SECTION ARE ESSENTIAL AND THAT END USER WOULD NOT BE PERMITTED TO USE THE PRODUCT ABSENT THE TERMS OF THIS SECTION. THIS SECTION SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY SPECIFIED IN THIS EULA SHALL BE FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE
    3. THE PROGRAM IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. THIS PROGRAM IS NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, OR COMMUNICATIONS SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE.
  22. Licensee may not assign this Agreement. Total Defense may assign this Agreement to any third party that succeeds Total Defense’s interests in the Product and assumes the obligations of Total Defense hereunder; and Total Defense may assign its right to payment hereunder or grant a security interest in this Agreement or such payment right to any third party.
  23. If a court holds that any provision of this Agreement to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. No waiver of any breach of this Agreement shall be a waiver of any other breach, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. Any notices concerning this Agreement should be made in writing and delivered to Total Defense (Attention Law Department) at Total Defense’s then current principal executive office.
  24. [Bitdefender SDK] © Bitdefender 1997-2018
  25. Total Defense Mobile Security and Total Defense Mac Antivirus are Rebranded BitDefender Software © Bitdefender 1997-2018