End User License Agreement for AOL Computer Checkup
End User License Agreement for AOL Computer Checkup
Welcome! The following terms govern your use of the Computer Checkup software, applications and services (“Applications”). You may use the Applications only if you agree to these terms.
BY INSTALLING OR USING THE APPLICATIONS, YOU SIGNIFY THAT YOU AGREE TO ABIDE BY THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT" or “LICENSE”).
This license has the same legal effect as an agreement in writing. If you do not agree, do not install, copy or use the Applications.
1. APPLICATIONS. AOL Inc., Support.com, Inc. and their affiliates and suppliers ("we", “our” or "us") provide the Applications to you under the terms of this Agreement. In this Agreement, we use the term “you” or “your” to mean you as an individual or such entity in whose behalf you act, if any. We may discontinue or change any feature of the Applications at any time and without notice.
2. TERMS. This Agreement plus (a) any supplemental terms posted below and (b) any additional terms that accompany any specific feature, Application or upgrade collectively govern your use of the Applications. We may modify this License if we offer and you accept the download of any new features or updates for the Applications.
3. OWNERSHIP. This is a license of the Applications, not a sale. The Applications and any content and services provided via the Applications are protected by copyright and other intellectual property laws and by international treaties. We, our licensors and suppliers own all rights in the Applications. Your rights to use the Applications are specified in this Agreement and we retain and reserve all rights not expressly granted to you.
4. RIGHT TO USE. During the term of this Agreement, we grant you a personal, limited, non-exclusive, revocable, non-sublicenseable and non-transferable right to install and use one copy of the Application on one computing device for personal and internal business purposes. If a greater number of computing devices is specified during purchase, you may use the application for the specified number of computer devices. Each device would require a separate license from us.
5. RESTRICTIONS. You may not: (i) make any copies of the Applications other than the copy that you need to operate the Applications on your devices, (ii) modify or create any derivative works of the Applications; (iii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, underlying ideas, or algorithms of the Applications, or in any way ascertain, decipher, or obtain the communications protocols for accessing our networks; (iv) use the Applications to develop software or services that access the address space of the Applications or that intercept the proxy; (v) attempt to gain unauthorized access to any of our or our suppliers', licensors’, and distributors' services, accounts, computer systems or networks associated with the Applications; (vi) resell, lease, sublicense or otherwise attempt to transfer rights to the Applications; (vii) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Applications; (vii) block, disable, or otherwise affect any advertising, advertisement banner window, tabs, links to other sites and services, or other features that constitute an integral part of the Applications; (ix) incorporate, integrate or otherwise include all or any portion of any of the Applications (including the communications protocols) into any software, program or product that communicates, accesses, or otherwise connects with our services or that interconnects any of our services with any other instant messaging or other online service; (x) use any of our services associated with the Applications in any manner that could damage, disable, overburden, or impair such services or interfere with any other party's use and enjoyment of them; (xi) use the Applications in any way that violates this Agreement or any law; (xii) use the Applications in any way that violates the rights of any third party; (xiii) use the Applications in any way to transmit, directly or indirectly, any unsolicited bulk communications (such e-mails, voice, photos, video, chat or SPIM instant messages); or (xiv) assist any third party to do any of the things described in this paragraph.
We may take any actions or apply any technical remedies to prevent unsolicited bulk communications, viruses or other harmful code from entering, utilizing, or remaining within our computer or communications networks.
7. REGISTRATION. You will need to register with us in order to access and use the Applications. You will need some form of log-in credential authorized by us, such as a username or authorized e-mail address (“User ID”), so that you can access your account. You agree that the AOL Lifestore Terms of Service apply to you when you make a purchase of the Applications. You can get a User ID at www.aol.com or www.aim.com. You must agree to abide by the terms and conditions that apply to your use of your User ID and any interactive online service that you elect to use with the Applications.
8. ACCESS. You must provide at your own expense the equipment, Internet connections and wireless devices or wireless services to access and use the Applications and the products associated with such Applications. We do not guarantee that the Applications will work with all wireless devices or wireless service plans, at all times, or in all geographic locations. When you use the Applications, you may incur certain charges from your wireless carrier according to the terms of your carrier agreement, including without limitation, standard fees for data, messaging and wireless access, SMS and MMS messaging services. Please check with your carrier to verify whether there are any such fees that may apply to you. YOU ARE SOLELY RESPONSIBLE FOR ANY COSTS YOU INCUR TO ACCESS OR USE THE APPLICATIONS THROUGH YOUR WIRELESS DEVICE.
9. YOUR RESPONSIBILITIES. You are responsible for:
(a) All activities that occur as a result of the use of the Applications through your User ID and devices;
(b) Maintaining the confidentiality of any User ID, passwords or log-in credentials;
(c) Taking reasonable steps to prevent unauthorized access to confidential information stored in your mobile phone or other wireless device; and
(d) Complying with this Agreement and with any and all applicable laws.
You must notify your wireless carrier immediately if your mobile phone is lost or stolen. We cannot be responsible for what happens if your account information (such as stored User IDs and passwords) becomes known to someone else.
10. SUGGESTIONS. You agree that we may, without limitation and for no compensation, use in any manner all comments, suggestions, complaints and other feedback you provide relating to the Applications.
11. YOUR REPRESENTATIONS. You represent and warrant that you have adequate legal capacity to enter into this Agreement, that you will use the Applications only for lawful purposes, that you will not violate the rights of others or the terms of this Agreement.
12. AUTOMATED UPDATES. We may, but we are under no obligation to, provide updates, patches and fixes (collectively, “Updates”). You may be given the opportunity to choose whether you want all Updates delivered automatically or if you would prefer to be notified when a new Update is ready to be installed, or when we make such Updates available for download. You authorize us to deliver automatically any Update if we believe it is necessary to provide for the continued functionality of the Applications. Your use of the Updates will be governed by this Agreement unless you are asked to agree to new or additional terms at the time of download or installation.
13. PERFORMANCE AND USAGE INFORMATION.
(a) TECHNICAL INFORMATION. Most of the Applications are configured to report back information automatically relating to computer errors arising in connection with use of the Applications, without notice to you. Information on your Applications’ configuration settings may be included. We use these data to diagnose and improve the Applications.
(b) FEATURE USAGE INFORMATION. The Applications may also provide us with anonymous information about use of the Applications’ features. We use this information in the aggregate to improve the Applications and determine which Application features and buttons are most popular and useful to its users.
(c) PERSONALIZATION. You may be asked to provide us with certain information so that we can personalize content presented to you through the Applications. For example, you may be asked for your zip code, which could be used to provide you with relevant local weather and/or news reports.
14. THIRD PARTY OFFERINGS. Your use of any third-party plug-in applications is at your own risk. We assume no responsibility for your use of such plug-ins, and we have no obligation to correct errors or provide Updates for third party applications.
15. TERMINATION. This Agreement automatically terminates if you fail to comply with any of its terms. We may terminate this Agreement and/or the License granted to you under this Agreement at any time in our sole discretion. You may discontinue use of the Applications at your discretion. Upon termination, you must stop all use of the Applications and must destroy all copies of the Applications that are in your possession. All provisions of this Agreement, except for the license grant in Section 3 above, survive the termination of this Agreement.
16. INJUNCTIVE RELIEF. You agree that your breach or threatened breach of this Agreement will cause us irreparable injury for which recovery of money damages would be inadequate and that we, therefore, may obtain timely injunctive relief to protect our rights under this Agreement in addition to any and all other remedies available to us at law or in equity.
17. DISCLAIMER OF WARRANTY.
WE AND OUR DISTRIBUTORS PROVIDE THE APPLICATIONS “AS IS” AND WITH ALL FAULTS. WE AND OUR DISTRIBUTORS DO NOT WARRANT THAT THE APPLICATIONS WILL MEET YOUR REQUIREMENTS OR WILL BE ERROR-FREE. THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, EFFORT AND COST OF ANY SERVICE AND REPAIR IS WITH YOU.
WE, OUR SUPPLIERS AND DISTRIBUTORS DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, NON-INFRINGEMENT OR ACCURACY, UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION.
IN ADDITION WE specifically disclaim any representation or warranty for the amount of performance increase or utility provided by the Applications. THE APPLICATIONS will not necessarily increase performance or provide a utility benefit on your computer, and WE MAKE no claim of specific deficiency, defect, or underperformance with respect to your computer. Any claims of performance increases or utility made for THE APPLICATIONS are those of possible or potential improvement or utility, and no representation or warranty is offered that a specific utility or amount of performance increase, if any, will be realized on any particular computer. Each computer is different and the scenarios under which they are used are different, and no claim is made that any one computer or usage scenario shall result in any performance increase or utility benefit from THE APPLICATIONS.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW. WE, OUR SUPPLIERS AND DISTRIBUTORS HAVE NO LIABILITY WITH RESPECT TO YOUR USE OF THE APPLICATIONS.
IF ANY IMPLIED WARRANTY MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THEN SUCH IMPLIED WARRANTY IS LIMITED TO 30 DAYS FROM THE DATE YOU ACQUIRED THE APPLICATIONS FROM US OR OUR AUTHORIZED DISTRIBUTOR.
18. LIMITATION OF LIABILITY.
You can recover from us and our third-party suppliers only direct damages up to the greater of the amount that you paid for the Applications or U.S. $5.00.
telephone assistance, corrections, Updates, upgrades, bug fixes and/or enhancements of the Applications from us or our distributors.
20. IMPORT/EXPORT CONTROL. The Applications are subject to export and import laws, regulations, rules and orders of the United States and foreign nations. You must comply with these laws that apply to the Applications. You may not directly or indirectly export, re-export, transfer, or release the Applications, any other commodities, software or technology received from us, or any direct product thereof, for any proscribed end-use, or to any proscribed country, entity or person (wherever located), without proper authorization from the U.S. and/or foreign government.
21. HIGH RISK ACTIVITIES. The Applications are not fault-tolerant and are not designed, manufactured or intended for use in environments in which their failure could lead to death, personal injury, or severe physical or environmental damage, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems ("High Risk Activities"). ACCORDINGLY, WE AND OUR SUPPLIERS, LICENSORS AND DISTRIBUTORS SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU AGREE THAT WE WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE OF THE APPLICATIONS IN SUCH HIGH RISK ACTIVITIES.
22. U.S. GOVERNMENT END-USERS. The Applications are a "commercial item," as that term is defined in 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. § 12.212 (Sept. 1995) and 48 C.F.R. § 227.7202 (June 1995). Consistent with 48 C.F.R. § 12.212, 48 C.F.R. § 27.405(b) (2) (June 1998) and 48 C.F.R. § 227.7202, all U.S. Government End Users acquire the Applications with only those rights as described in this License.
23. ELECTRONIC NOTICES. YOU AGREE TO THIS LICENSE ELECTRONICALLY. YOU AUTHORIZE US TO PROVIDE YOU ANY INFORMATION AND NOTICES REGARDING THE APPLICATIONS (“NOTICES”) IN ELECTRONIC FORM. WE MAY PROVIDE NOTICES TO YOU (1) VIA E-MAIL IF YOU HAVE PROVIDED US WITH A VALID EMAIL ADDRESS OR (2) BY POSTING THE NOTICE ON A WEB OR MOBILE PAGE DESIGNATED BY US FOR THIS PURPOSE. The delivery of any Notice is effective when sent or posted by us, regardless of whether you read the Notice or actually receive the delivery. You can withdraw your consent to receive Notices electronically by discontinuing your use of the Applications. As long as you are able to access the Internet using the Applications, you will be able to receive electronic notices from us.
24. INDEMNIFICATION. Upon a request by us, you agree to defend, indemnify, and hold harmless us and our parent and other affiliated companies, and our respective employees, contractors, officers, directors, suppliers and agents and distributors from all liabilities, claims, and expenses, including attorneys’ fees that arise from your use or misuse of the Applications. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
25. CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES. You agree that the laws of the Commonwealth of Virginia govern this Agreement and any claim or dispute that you may have against us, without regard to Virginia’s conflict of laws rules, and that the United Nations Convention on Contracts for the International Sale of Goods will have no applicability. You further agree that any disputes or claims that you may have against us will be resolved by a court located in the Commonwealth of Virginia and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
26. DISPUTE RESOLUTION AND BINDING ARBITRATION PROVISION.
(a) DEFINITIONS. As used in this Arbitration Provision, “Claims” means all claims, disputes, or controversies between you and us of any nature or kind, whether pre-existing, present, or future, that arise from or relate to the use of our web site or any of our products or services (collectively the “Services”). This includes but is not limited to disagreements about the validity, enforceability, or scope of this Arbitration Provision.
(b) INFORMAL EFFORTS TO RESOLVE DISPUTE. If a dispute arises between you and us, you should first attempt to resolve it by contacting our Customer Service Center at 1-800-727-8776 or by sending the details of your complaint, including your contact information for a response, to the address or fax number listed below. We will attempt in good faith to resolve all Claims submitted this way within fifteen (15) days of receipt.
(c) AGREEMENT TO ARBITRATE; RIGHT TO OPT OUT. If informal efforts to resolve Claims fail or are not used, you agree that any and all Claims will be resolved exclusively by binding arbitration as described herein, except that: (i) you may assert Claims in a small claims court in the United States if your Claims meet the court’s jurisdictional requirements; and (ii) either party may pursue Claims and relief in a court of competent jurisdiction regarding the validity and/or infringement of a party’s intellectual property rights.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS VERY LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD TO YOU ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND FORMS OF RELIEF AS A COURT COULD (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF AS WELL AS STATUTORY DAMAGES), AND MUST FOLLOW THE LAW AND TERMS OF THIS AGREEMENT AS A COURT WOULD. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS AND PRIVATE ATTORNEY GENERAL ACTIONS ARE NOT PERMITTED.
IF YOU DO NOT WISH TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST ACCEPT OR HAVE ACCESS TO THIS AGREEMENT BY MAILING OR FAXING AN OPT-OUT REQUEST TO OUR CUSTOMER SERVICE CENTER LISTED BELOW. YOUR WRITTEN NOTIFICATION MUST INCLUDE YOUR NAME, ADDRESS, THE EMAIL ADDRESS YOU USED TO REGISTER WITH US, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH US THROUGH ARBITRATION. YOUR DECISION TO OPT OUT OF THIS ARBITRATION PROVISION WILL HAVE NO ADVERSE EFFECT ON YOUR RELATIONSHIP WITH US OR THE DELIVERY OF SERVICES TO YOU BY US. IF YOU HAVE PREVIOUSLY NOTIFIED US OF YOUR DECISION TO OPT OUT OF ARBITRATION, YOU DO NOT NEED TO DO SO AGAIN.
(d) ARBITRATION FEES. The allocation and payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules which limit the amount a consumer is required to pay. If the arbitrator determines that your Claims are not frivolous applying the standards of the Federal Rules of Civil Procedure, we agree to reimburse you the amount of all filing, administration and arbitrator fees you are required to pay for the arbitration.
(e) ARBITRATION RULES. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules if you are a resident of the United States; if your use of the Services has been principally for personal or household use, the AAA’s Supplementary Procedures for Consumer-Related Disputes will also apply. If you are a resident of a country other than the United States, the arbitration will be conducted by the AAA’s International Centre for Dispute Resolution in New York, NY, under its rules for international arbitration, and you and we agree to submit to the personal jurisdiction of the U.S. federal court in New York, NY, in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. In the event of a conflict or inconsistency between the applicable arbitration rules and this Arbitration Provision, this Arbitration Provision shall govern and control.
The arbitration will be conducted in the English language by a single arbitrator who is an attorney-at-law with experience in consumer and technology transactions and who is also a member of the AAA National Roster of Arbitrators. If you and we can’t agree on a mutually acceptable arbitrator within fifteen (15) days after the arbitration is initiated, then the AAA will pick a neutral arbitrator who meets the qualifications. The AAA’s rules are available at www.adr.org, or by calling 1-800-778-7879 from inside the United States or +1-212-484-4181 from outside the United States.
(f) INITIATING ARBITRATION. To begin an arbitration proceeding, you must follow the procedures specified by the applicable AAA rules as described on their website at www.adr.org.
(g) TIME RESTRICTION. YOU MUST FILE A COMPLAINT WITH THE AAA OR A PERMITTED COURT WITHIN ONE (1) YEAR OF THE DATE OF THE OCCURRENCE OF THE EVENT OR FACTS GIVING RISE TO A CLAIM, OR YOU WAIVE THE RIGHT TO PURSUE ANY CLAIM BASED UPON SUCH EVENT, FACTS OR DISPUTE.
(h) ARBITRATION PROCESS. Because appearing in person for arbitration can be unduly burdensome in the circumstances, arbitration under this Arbitration Provision shall not require any personal appearance by the parties or witnesses unless mutually agreed. Either or both parties may participate by written submissions, telephone calls, or other means of remote communication as allowed by the arbitrator. The arbitration proceedings will be conducted in the English language at a location designated by the AAA that is the most convenient for you.
The arbitration can only decide Claim(s) between you and us, and may not consolidate or join the claims of other persons that may have similar claims. There shall be no pre-arbitration discovery except as provided for in the applicable AAA rules. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect customer account information and other confidential or proprietary information.
In conducting the arbitration proceeding, the arbitrator will apply the law of the State of California (without regard to its conflicts of law provisions) including U.S. federal law for matters covered by federal law (for example, the Federal Arbitration Act). At the request of any party, the arbitrator shall provide a brief written explanation of the basis for the decision and award. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator’s decision will be final and binding on the parties except for any right to appeal under the AAA rules or the Federal Arbitration Act.
(i) RECOVERY AND ATTORNEYS’ FEES. If the arbitrator rules in your favor on the merits of any Claim you bring against us and issues you an award that is greater in monetary value than our last written settlement offer made to you before written submissions are made to the arbitrator, then we will (i) pay you 150% of your arbitration damages award, up to $1,000 over and above your damages award; and (ii) pay your attorneys, if any, the amount of attorneys’ fees, and reimburse any expenses (including expert witness fees and costs) that you or your attorney reasonably incurred for investigating, preparing, and pursuing your Claim in arbitration. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of such fees, expenses, and the alternative payment and the attorney premium at any time during the proceedings and upon request from either party made within 14 days of the arbitrator’s ruling on the merits. The right to attorneys’ fees and expenses discussed above supplements any right to attorneys’ fees and expenses you may have under applicable law, although you may not recover duplicative awards of attorneys’ fees or costs. If your use of the Services was principally for personal or household use, we waive any rights we may have to seek an award of attorneys’ fees and expenses from you in connection with any arbitration of Claims between us.
(j) CONFIDENTIALITY. You and we shall keep confidential any information exchanged during the arbitration as well as the decision of the arbitrator made with respect to any Claim(s) arbitrated under this Arbitration Provision and, with the exception of disclosure to your or our attorneys, accountants, auditors, and other legal or financial advisors, neither party shall disclose such information or decision to any other person unless required to do so by law.
(k) CONTINUING OBLIGATION TO ARBITRATE; SEVERABILITY. This Arbitration Provision shall survive termination of your access to or use of any Services and related agreements. If any portion of this Arbitration Provision is deemed invalid or unenforceable at law, such invalid or unenforceable provision will be interpreted, construed or reformed to the extent required to make it valid and enforceable, and this shall not invalidate the remaining portions of this Arbitration Provision.
Customer Service Center Address:
27. ENTIRE AGREEMENT. This Agreement and any supplemental terms constitute the entire agreement between you and us concerning the subject matter of this Agreement, which may only be modified by us.
28. GENERAL TERMS. (a) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. (b) If any part of this Agreement is held invalid or unenforceable, that part shall be construed to reflect the parties' original intent, and the remaining portions remain in full force and effect, or we may at our option terminate this Agreement. (c) The controlling language of this Agreement is English. If you have received a translation into another language, it has been provided for your convenience only. (d) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. (e) You may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein. We may assign this Agreement to any entity in our sole discretion and without notice to you. (f) This Agreement shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. (g) Neither party shall be in default or be liable for any delay, failure in performance or interruption of service resulting directly or indirectly from any cause beyond its reasonable control. (h) Support.com, Inc. shall be deemed a third party beneficiary to this Agreement.
29. USERS OUTSIDE THE U.S. If you are using the Applications outside the U.S., then the provisions of this Section shall apply: (i) Les parties aux présentés confirment leur volonté que cette convention de même que tous les documents y compris tout avis qui s'y rattaché, soient redigés en langue anglaise. (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); (ii) you are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Applications, and you represent that you have complied with any regulations or registration procedures required by applicable law to make this license enforceable; and (iii) if the laws applicable to your use of the Applications would prohibit the enforceability of this Agreement, or impose any additional burdens on us, or confer any rights to you that are materially different from the terms and conditions of this Agreement, then you are not authorized to use the Applications and you agree to remove it from your computer. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties.
Last Updated: 26 September 2013
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