End user agreement for Online Armor Personal Firewall Premium
NOTICE TO ALL USERS: CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT (“AGREEMENT”), FOR THE LICENCE OF SPECIFIED SOFTWARE (“SOFTWARE”) PRODUCED BY TALL EMU PTY LTD (“TALL EMU”).
IF YOU HAVE PURCHASED THIS SOFTWARE VIA INTERNET BY CLICKING THE ACCEPT BUTTON, YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) CONSENT TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE BUTTON THAT INDICATES THAT YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT AND DO NOT INSTALL THE SOFTWARE.
IF YOU HAVE PURCHASED THIS SOFTWARE ON A PHYSICAL MEDIUM, HAVING BROKEN THE CD'S SLEEVE, YOU (EITHER AN INDIVIDUAL OR A SINGLE ENTITY) ARE CONSENTING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT DO NOT BREAK THE CD's SLEEVE, DOWNLOAD, INSTALL OR USE THIS SOFTWARE. YOU MAY RETURN THIS SOFTWARE FOR A FULL REFUND. YOUR RIGHT TO RETURN AND REFUND EXPIRES 30 DAYS AFTER PURCHASE FROM AN AUTHORISED TALL EMU DISTRIBUTOR OR RESELLER. THE RIGHT TO RETURN AND REFUND EXTENDS ONLY TO THE ORIGINAL PURCHASER.
All references to “Software” herein shall be deemed to include the software activation key (“Key Identification File”) with which you will be provided by Tall Emu as part of the Software.
1. Licence Grant. Subject to the payment of the applicable licence fees, and subject to the terms and conditions of this Agreement, Tall Emu hereby grants to you a non-exclusive, non-transferable right to use one copy of the specified version of the Software and the accompanying documentation (the “Documentation”) for the term of this Agreement solely for your own internal business purposes. You may install one copy of the Software on one computer, workstation, personal digital assistant, or other electronic device for which the Software was designed (each, a “Client Device”). If the Software is licensed as a suite or bundle with more than one specified Software produce, this licence applies to all such specified Software products, subject to any restrictions or usage terms specified on the applicable price list or product packaging that apply to any of such Software products individually.
1.1 Use. The Software is licensed as a single product; it may not be used on more than one Client Device or by more than one user at a time, except as set forth in this Section.
1.1.1 The Software is “in use” on a Client Device when it is loaded into the temporary memory (i.e., random-access memory or RAM) or installed into the permanent memory (e.g., hard disk, CD-ROM, or other storage device) of that Client Device. This licence authorizes you to make only as many back-up copies of the Software as are necessary for its lawful use and solely for back-up purposes, provided that all such copies contain all of the Software's proprietary notices. You will maintain records of the number and location of all copies of the Software and Documentation and will take all reasonable precautions to protect the Software from unauthorised copying or use.
1.1.2 If you sell the Client Device on which the Software is installed, you will ensure that all copies of the Software have been previously deleted.
1.1.3 You shall not decompile, reverse engineer, disassemble or otherwise reduce any party of this Software to human readable form nor permit any third party to do so. The interface information necessary to achieve interoperability of the Software with independently created computer programs will be provided by Tall Emu on request on payment of its reasonable costs and expenses for procuring and supplying such information. In the event Tall Emu notifies you that it does not intend to make such information available for any reason, including (without limitation) costs, you shall be permitted to take such steps to achieve interoperability provided that you may only reverse engineer or decompile to the extent permitted by law.
1.1.4 You shall not, nor permit any third party to copy (other than as expressly permitted herein), make error corrections to or otherwise modify, adapt or translate the Software nor create derivative works of the Software.
1.1.5 You shall not rent, lease or lend the Software to any other person, nor transfer or sub-licence your licence rights to any other person.
1.1.6 You shall not use this Software in automatic, semi-automatic or manual tools designed to create virus signatures, virus detection routines, any other data or code for detecting malicious code or data.
1.2 Server-Mode Use. You may use the Software on a Client Device or on or as a server (“Server”) within a multi-user or networked environment (“Server-Mode”) only if such use is permitted in the applicable price list or product packaging for the Software. A separate licence is required for each Client Device or “seat” that may connect to the Server at any time, regardless of whether such licenced Client Devices or seats are concurrently connected to or actually accessing or using the Software. Use of software or hardware that reduces the number of Client Devices or seats directly accessing or utilizing the Software (e.g., “multiplexing” or “pooling” software or hardware) does not reduce the number of licences required (i.e., the required number of licences would equal the number of distinct inputs to the multiplexing or pooling software or hardware “front end”). If the number of Client Devices or seats that can connect to the Software can exceed the number of licences you have obtained, then you much have a reasonable mechanism in place to ensure that your use of the Software does not exceed the use limits specified for the licence you have obtained. This licence authorises you to make or download such copies of the Documentation for each Client Device or seat that is licensed as are necessary for its lawful use, provided that each such copy contains all of the Documentation proprietary notices.
1.3 Volume Licences. If the Software is licensed with volume licence terms specified in the applicable product invoicing or packaging for the Software, you may make, use or install as many additional copies of the Software on the number of Client Devices as the volume licence terms specify. You must have reasonable mechanisms in place to ensure that the number of Client Devices on which the Software has been installed does not exceed the number of licences you have obtained. This licence authorizes you to make or download one copy of the Documentation for each additional copy authorized by the volume licence, provided that each such copy contains all of the Document's proprietary notices.
2. Term. This Agreement is effective for the period specified in the Key File (the unique file which is required to fully enable the Software, (please see Help/ about Software or Software about), unless and until earlier terminated as set forth herein. This Agreement will terminate automatically if you fail to comply with any of the conditions, limitations or other requirements described herein. Upon any termination or expiration of this Agreement, you must immediately destroy all copies of the Software and the Documentation. You may terminate this Agreement at any point by destroying all copies of the Software and the Documentation.
(i) Tall Emu will provide you with the support services (“Support Services”) as defined below for a period of one year on:
(a) payment of its then current support charge; and
(b) successful completion of the Support Services Subscription Form as provided to you with this Agreement or as available on the Tall Emu website, which will require you to produce the Key Identification File which will have been provided to you by Tall Emu with this Agreement. It shall be in the absolute discretion of Tall Emu whether or not you have satisfied this condition for the provision of Support Services.
(ii) Support Services will terminate unless renewed annually by payment of the then current annual support charge and by successful completion of the Support Services Subscription Form again.
(iii) “Support Services” means:
(a) Daily updates of antivirus databases;
(b) Free software updates, including version upgrades;
(c) Extended technical support via support forums, or, at Tall Emu's discretion E-mail.
(d) phone-line provided by Vendor and/or Reseller which may attract an additional fee;
4. Ownership Rights. The Software is protected by copyright laws. Tall Emu and its suppliers own and retain all right, title and interest in and to the Software, including all copyrights, patents, trademarks and other intellectual property rights therein. Your possession, installation, or use of the Software does not transfer to you any title to the intellectual property in the Software, and you will not acquire any rights to the Software except as expressly set forth in this Agreement.
5. Confidentiality. You agree that the Software and the Documentation, including the specific design and structure of individual programs and the Key Identification File constitute confidential proprietary information of Kaspersky Lab. You shall not disclose, provide or otherwise make available such confidential information in any form to any third party without the prior written consent of Kaspersky Lab. You shall implement reasonable security measures to protect such confidential information, but without limitation to the foregoing shall use best endeavours to maintain the security of the Key Identification File.
6. Limited Warranty.
(i) Tall Emu warrants that for ninety (90) days from first download or installation the Software will perform substantially in accordance with the functionality described in the Documentation when operated properly and in the manner specified in the Documentation.
(ii) You accept all responsibility for the selection of this Software to meet your requirements. Tall Emu does not warrant that the Software and/or the Documentation will be suitable for such requirements nor that any use will be uninterrupted and error free.
(iii) Tall Emu does not warrant that this Software identifies all known viruses, nor that the Software will not occasionally erroneously report a virus in a title not infected by that virus.
(iv) Your sole remedy and the entire liability of Kaspersky Lab for breach of the warranty at paragraph (i) will be at Tall Emu's option, to repair, replace or refund of the Software if reported to Tall Emu or its designee during the warranty period. You shall provide all information as may be reasonably necessary to assist the Supplier in resolving the defective item.
(v) The warranty in (i) shall not apply if you (a) make or cause to be made any modifications to this Software without the consent of Tall Emu, (b) use the Software in a manner for which it was not intended, or (c) use the Software other than as permitted under this Agreement.
(vi) The warranties and conditions stated in this Agreement are in lieu of all other conditions, warranties or other terms concerning the supply or purported supply of, failure to supply or delay in supplying the Software or the Documentation which might but for this paragraph (vi) have effect between Tall Emu and your or would otherwise be implied into or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, all of which are hereby excluded (including, without limitation, the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or as to the use of reasonable skill and care).
7. Limitation of Liability.
(i) Nothing in this Agreement shall exclude or limit Tall Emu's liability for (i) the tort of deceit, (ii) death or personal injury caused by its breach of a common law duty of care or any negligent breach of a term of this Agreement, (iii) any breach of the obligations implied by s.12 Sale of Goods Act 1979 or s.2 Supply of Goods and Services Act 1982 or (iv) any liability which cannot be excluded by law.
(ii) Subject to paragraph (i), the Supplier shall have no liability (whether in contract, tort, restitution or otherwise) for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise):
(a) Loss of revenue;
(b) Loss of actual or anticipated profits (including for loss of profits on contracts);
(c) Loss of the use of money;
(d) Loss of anticipated savings;
(e) Loss of business;
(f) Loss of opportunity;
(g) Loss of goodwill;
(h) Loss of reputation;
(i) Loss of, damage to or corruption of data; or
(j) Any indirect or consequential loss or damage howsoever caused (including, for the avoidance of doubt, where such loss or damage is of the type specified in paragraph (ii), (a) to (ii), (i).
(iii) Subject to paragraph (i), Tall Emu's liability (whether in contract, tort, restitution or otherwise) arising out of or in connection with the supply of the Software shall in no circumstances exceed a sum equal to the amount equally paid by you for the Software.
8. The construction and interpretation of this Agreement shall be governed in accordance with the laws of New South Wales, Australia. The parties hereby submit to the jurisdiction of the courts of New South Wales, Australia save that Tall Emu as claimant shall be entitled to initiate proceedings in any court of competent jurisdiction.
9. (i) This Agreement contains the entire understanding of the parties with respect to the subject matter hereof and supersedes all and any prior understandings, undertakings and promises between you and Tall Emu, whether oral or in writing, which have been given or may be implied from anything written or said in negotiations between us or our representatives prior to this Agreement and all prior agreements between the parties relating to the matters aforesaid shall cease to have effect as from the Effective Date. Save as provided in paragraphs (ii) - (iii) below, you shall not have any remedy in respect of an untrue statement made to you upon which you relied in entering into this Agreement (“Misrepresentation”) and Tall Emu shall not have any liability to the other than pursuant to the express terms of this Agreement.
(ii) Nothing in this Agreement shall exclude or limit Tall Emu's liability for any Misrepresentation made by it knowing that it was untrue.
(iii) The liability of Tall Emu for Misrepresentation as to a fundamental matter, including a matter fundamental to the maker's ability to perform its obligations under this Agreement, shall be subject to the limitation of liability set out in paragraph 7 (iii).