Total Defense Virus Protection Assurance Terms & Conditions
This Agreement sets forth the terms and conditions upon which Total Defense (“Company”) agrees to provide the virus removal services further defined below (the “Services”) to you and the terms and conditions upon which you agree to use or receive the Services. You acknowledge and agree that (a) this Agreement (including, without limitation, any of the fees set forth in this Agreement) may be amended by the Company from time to time in its sole discretion with or without notice to you by amending the then current version of this Agreement, and (b) you will be bound by any such amendments immediately upon posting. You should therefore visit this page from time to time to read the current version of this Agreement. You acknowledge that portions of the Services may be subject to third party licenses, which may further affect your rights in the Services.
Total Defense Virus Protection Assurance provides you with peace of mind that your PC will be virus free. In the unlikely event that you are running an eligible Total Defense security product and a virus manages to bypass our defenses and infects your PC, our expert Total Defense Technology Advisors will remove the virus from your PC, free of charge. If the Total Defense Technology Advisor is unable to remove the virus from your PC, you may be entitled to a refund for the amount paid for your current Total Defense software subscription.
1. Eligibility. To be eligible to receive this benefit:
a. Your Eligible Total Defense software must be an active subscription that is enrolled in the Automatic Renewal Service;
b. You must be running an eligible Total Defense Security Product that is version 126.96.36.1995 (If you are unsure of your product version you can contact the Total Defense customer service team and they will assist you in obtaining your version number and/or provide assistance to upgrade to the most current version) or higher; and
c. Your Total Defense security software must have the auto-scan and auto-updates settings turned ON.
2. Terms of Refund. To be eligible to receive a refund:
a. Prior to the time Your PC was infected with a virus: (i) the infected PC must be running an active Total Defense security product, version 188.8.131.525 or higher;(ii) the Total Defense security product must be installed on the device and activated with auto-scan and auto-updates turned ON; and (iii) the Total Defense software must be an active subscription that is enrolled in Automatic Renewal Service.
b. A Total Defense Technology Advisor, using remote access capability, must have been unable to remove the virus from your PC; and
c. If purchased from a retailer or website other than www.Totaldefense.com You must provide proof of purchase validating the amount you paid.
d. If the product was part of a bundle you will be refunded up to the Manufacturers Suggested Retail Price (MSRP).
Your full refund amount will be based on the actual price paid for the Total Defense software (net of any and all discounts, refunds and rebates and less any shipping, handling and any applicable taxes). Total Defense is not responsible for, and the refund DOES NOT apply to any loss or damage(s) incurred as a result of viruses
3. Right to Access and Modify Your Computer Systems and Peripherals. You hereby (a) give the Company, through one or more of its employees, agents or affiliates or through any third party service provider, the right to remotely access your computer systems, computers, software, network devices, servers, phones, tablets, mobile devices, peripherals and/or any other hardware, systems or devices (collectively ‘Computer Systems and Devices’) covered by the Services; (b) grant to the Company, through one or more of its employees, agents or affiliates or through any third party service provider, necessary and reasonable access to your Computer Systems and Devices covered by the Services on your premises; (c) give the Company, through one or more of its employees, agents or affiliates or through any third party service provider, the right to open, view, modify, edit, delete, or otherwise manipulate your computer software, applications, data, and data storage media including, without limitation, the computer operating system, word processing, spreadsheets, databases, workflow, graphics, audio, video, system drivers and libraries, and any other type of software or data that may be contained on your Computer Systems and Devices covered by the Services; and (d) give the Company, through one or more of its employees, agents or affiliates or through any third party service provider, the right to download and/or install software or other products on your Computer Systems and Devices covered by the Services.
4. Services Defined. For purposes of this Agreement, the term ‘Services’ means remote virus removal services that you may receive from the Company. You hereby acknowledge and agree that the Services provided to you by the Company will only cover the users and Computer Systems and Devices which are running a currently licensed version of a Total Defense Security product where the product subscription is currently enrolled in Automatic Renewal Service and that the Company may discontinue any of the Services from time to time in its sole discretion.
5. Your Responsibilities. In addition to your other obligations under this Agreement, you:
a. Acknowledge that you may be required to install certain software on your Computer Systems and Devices covered by the Services to assist the Company in providing the Services, that you may install and use the software in executable form only, and that the Company has the right to terminate this Agreement and the Services if you (i) do not install all of the required software on your Computer Systems and Devices covered by the Services (as applicable and as directed by the Company) or (ii) alter, modify or disable any of the required software or its settings or configurations;
b. Shall only use the Services for the users and Computer Systems and Devices specifically registered with or otherwise authorized by the Company for use in connection with the Services;
c. Shall at all times comply with the Company’s minimum system and hardware requirements, which the Company may change from time to time, and you acknowledge that the Company has the right to terminate this Agreement and the Services if you do not comply with the Company’s minimum system and hardware requirements or are abusive, mistreat Company agents and/or have commercially unreasonable/excessive requests for support; and
d. Agree that, in connection with your use of the Services and other activities related to this Agreement, you will (i) comply with all applicable local, state, national and international laws and regulations, (ii) not infringe the intellectual property or other rights of third parties, and (iii) not submit or otherwise transmit any material that is abusive, defamatory, obscene, infringing, threatening, repetitive or otherwise inappropriate, or that contains viruses or other harmful computer code or files such as Trojan horses, worms or time bombs.
6. User Data. In the course of using the Services, you may submit or otherwise provide data and other content (‘Content’) to the Company and/or any person or entity upon which the Company relies to host or provide any Licensed IP (as defined below), computer server, website or services on behalf of the Company (‘Third Party Provider’). You acknowledge and agree that you are responsible for any Content you submit or otherwise provide to the Company and/or a Third Party Provider. You also represent and warrant that you have obtained all necessary rights and licenses to any such Content. You hereby grant the Company and its Third Party Providers a worldwide, royalty-free, non-exclusive, irrevocable, perpetual, transferable, sub-licensable right and license to use, copy, store, transmit and disclose your Content to fulfill its obligations and provide the Services described in this Agreement. The Company reserves, on behalf of itself and its Third Party Providers, the right to delete any such content at any time in its sole discretion without notice or liability.
8. Performance of the Services
With respect to any claim that Company was unable to remove the virus from your PC, you must notify the Company within five (5) calendar days following the Company’s performance of the Services. If you fail to give the Company written notice within such 5-day period, the Company will not be required to remedy its failure to remove the virus. Provided that you give Company notice in accordance with this paragraph, the Company agrees to use commercially reasonable efforts to remedy the failed virus removal and, in connection therewith, you agree to give the Company reasonable access to your Computer Systems and Devices covered by the Services. If the Company, using commercially reasonable efforts, is unable to remove the virus, then the Company, in its sole discretion, may elect to issue you a refund for the Total Defense software subscription. Notwithstanding the foregoing, the Company’s liability to you shall be limited as specified in this Agreement.
9. Limitation of Liability; Risk of Loss
a. Limitation of Liability. IN NO EVENT SHALL THE COMPANY OR ITS AGENTS, EMPLOYEES, AFFILIATES, DIRECTORS OR OFFICERS OR ANY THIRD PARTY PROVIDERS, LICENSORS OR SUPPLIERS HAVE ANY LIABILITY TO YOU OR ANY OTHER THIRD PARTY, AND YOU AGREE TO RELEASE AND HOLD THE COMPANY AND ITS AGENTS, EMPLOYEES, AFFILIATES, DIRECTORS AND OFFICERS AND ANY THIRD PARTY PROVIDERS, LICENSORS AND SUPPLIERS HARMLESS FROM, ANY LIABILITY ARISING FROM (A) ANY DELAYS IN THE PERFORMANCE OF THE SERVICES; (B) ANY THIRD PARTY SOFTWARE; (C) THE PERFORMANCE OF THE SERVICES, EXCEPT AND ONLY TO THE EXTENT THAT THE COMPANY IS GROSSLY NEGLIGENT IN PERFORMING THE SERVICES; OR (D) CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATE STATUTES MAY APPLY RESTRICTIONS REGARDING LIMITATIONS ON LIABILITY. THE SOLE AND MAXIMUM LIABILITY OF THE COMPANY AND ITS AGENTS, EMPLOYEES, AFFILIATES, DIRECTORS, OFFICERS AND THIRD PARTY PROVIDERS, LICENSORS AND SUPPLIERS, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS WHATSOEVER, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT THAT YOU PAID FOR THE SERVICES WITHIN THE SIXTY DAYS IMMEDIATELY PRECEDING THE INITIAL CLAIM MADE BY YOU IN WHICH THE COMPANY IS LIABLE TO YOU FOR SUCH CLAIM. YOU ACKNOWLEDGE THAT THE COMPANY HAS SET ITS FEES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH IN THIS AGREEMENT AND THAT THESE PROVISIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF PORTIONS OF THIS AGREEMENT ARE FOUND TO HAVE FAILED IN THEIR ESSENTIAL PURPOSE.
b. Risk of Loss. You agree that your use of the Services is your sole responsibility and is solely at your own risk. You acknowledge and agree that the Internet, over which many of the Services are delivered, is not owned, operated or managed by, or in any way affiliated with the Company, and you agree that the Company is not responsible for and has no control over the information, content or other materials, some of which may be offensive, malicious or destructive in nature, which may be accessed on the Internet through use of the Services. You acknowledge and agree that the Internet is not a secure network and that third parties may be able to intercept, access, use, or corrupt the information that you transmit or receive over the Internet, whether in connection with the Company’s provision of the Services or otherwise. The Company is not responsible for invalid destinations, transmission errors, or corruption or security of your data. You further acknowledge and agree that the Company does not own or control all of the various facilities and communications lines through which Services may be provided and that the Company does not guarantee access to or through websites, servers or other facilities on or connected to the Internet, whether or not such websites, servers or facilities are owned or controlled by t he Company. You acknowledge and agree that remotely accessing your Computer Systems and Devices covered by the Services may expose the same and the data contained therein to certain security risks and that you, and not the Company, shall be responsible for such security risks. You acknowledge that due to the nature of the Services being performed, you are exposed to some potential risk of damage or loss including, without limitation, damage to your computer hardware, cabling, hubs, routers, switches, peripherals, accessories, furniture, home, and office, as well as potential risk of damage, corruption, loss of business or time, loss of computer software, applications, data, and data storage media. You acknowledge that it is your responsibility to take proper and adequate measures to preserve, protect and safeguard critical data by backing up such data in appropriate ways prior to any Services being performed by the Company. Unless specifically requested and provided to you as a paid Service by the Company, you acknowledge and agree that you are exclusively responsible for providing all backup, archiving, and protective storage as well as restoration, if required, of your data.
10. WARRANTY DISCLAIMER
THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SOFTWARE) ARE PROVIDED ON AN ‘AS IS’ BASIS, AND YOUR USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SOFTWARE) IS AT YOUR OWN RISK. THE COMPANY WILL USE COMMERCIALLY REASONABLE EFFORTS TO PERFORM AND MAINTAIN ACCEPTABLE PERFORMANCE OF THE SERVICES. HOWEVER, THE COMPANY PROVIDES NO WARRANTIES WHATSOEVER AND THE COMPANY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SOFTWARE), INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. THE COMPANY DOES NOT WARRANT THAT THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SOFTWARE) WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE. THE COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SOFTWARE) IN TERMS OF ACCURACY, RELIABILITY, SATISFACTION OR OTHERWISE, AND THE COMPANY DOES NOT GUARANTEE RESOLUTION OF ANY PROBLEM. YOU ASSUME SOLE RESPONSIBILITY FOR YOUR USE OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SOFTWARE) TO ACHIEVE YOUR INTENDED RESULTS. THE COMPANY DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE LINE RATE, ACCESS OR AVAILABILITY OF THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SOFTWARE).
YOU SPECIFICALLY AGREE THAT THE COMPANY, ITS AFFILIATES, DIRECTORS, STOCKHOLDERS, OFFICERS, AGENTS AND EMPLOYEES, AND THE COMPANY’S SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES, WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND AND/OR ARISING UNDER ANY LEGAL THEORY, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF ANY OF THE FOREGOING PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR INABILITY TO USE THE COMPANY’S PRODUCTS OR SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SOFTWARE) OR IN ANY WAY RELATING TO THE COMPANY’S PRODUCTS OR SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SOFTWARE).
11. Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the State of New York without application of its conflicts of law principles. All disputes arising under or related to this Agreement or the Services provided shall be resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association in proceedings conducted in the English language in New York, New York and judgment on the arbitration award may be entered in any court having jurisdiction. However either party may at any time bring an action for injunctive relief in any court having jurisdiction.