ACTIVE SECURITY MONITOR END USER
LICENSE AGREEMENT
Redistribution or Rental Not Permitted
This is a binding
agreement between you (either an individual or an entity) and AOL Premium
Services LLC (“APS”) that governs your installation and use of this Active
Security Monitor software, including the features, services, content and
documentation accompanying the software (the “Software”).
BY CLICKING “I AGREE,” AND/OR
BY USING THE SOFTWARE, YOU SIGNIFY YOUR AGREEMENT TO THIS ACTIVE SECURITY
MONITOR END USER LICENSE AGREEMENT (THE "AGREEMENT"), YOU AGREE TO
THE PRIVACY PRACTICES DESCRIBED IN PARAGRAPH 4 BELOW, YOU AGREE TO RECEIVE
NOTICES FROM APS ELECTRONICALLY, AND YOU CONSENT TO JURISDICTION IN THE STATE
OF VIRGINIA FOR ANY DISPUTE REGARDING THIS AGREEMENT. If you do not agree to
the terms of this Agreement click "Cancel" and do not install or use
the Software.
1. LICENSE GRANT. APS grants you a personal, limited, non-exclusive,
non-sublicensable, non-transferable license to install and use the Software for
personal and internal business purposes.
2.
RESTRICTIONS. You may not: (i) copy or reproduce
the Software except as expressly permitted herein; (ii) decompile, disassemble,
reverse engineer, or otherwise attempt to derive the source code, underlying
ideas, or algorithms of the Software; (iii) modify or create any derivative
works of the Software or documentation; (iv) copy, reproduce, reuse in another
product or service, modify, alter, or display in any manner any Javascript or
HTML files, or parts thereof, included in the Software; (v) redistribute,
encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the
Software; (vi) remove or alter any trademark, logo, copyright or other
proprietary notices, legends, symbols or labels in the Software; (vii) block,
disable, or otherwise effect any advertising, advertisement banner window,
tabs, links to other sites and services, or other features that constitute an
integral part of the Software; (viii) incorporate, integrate or otherwise
include the Software or any portion thereof into any other software, program,
product, or service; (ix) use the Software in any way that violates this
Agreement or any law; or (x) authorize or assist any third party to do any of
the things described in this paragraph.
3. NETWORK SUPPORT. The
Software is designed to monitor the security status of your home or small
business network of up to five (5) computers. In order to take advantage of
this feature, you must register with APS by providing your email address. You
will then need to install the Software on each computer in your network, and
register each computer.
4. PRIVACY.
(b) REGISTERED
NETWORKS. You may register your computer and other computers in your
network with APS in order to receive an overall network security score. In
order to confirm your registration and enable you to register other PCs in your
network, we ask you to provide your email address and select a password. APS
will not rent or sell your e-mail address to any other company.
Once you register computers in your network with
APS, security and system configuration information gathered by the Software on
each registered computer will automatically be sent to APS or its agents’ servers
in order to assess and calculate your network’s overall security rating
periodically. This overall security rating information is transmitted to
all the registered computers in your network. We also store this information so
you can use your email address and password to log in remotely to receive
information about the security of computers in your network, or review recent
security ratings information.
5. FEES. There is no license fee for the Software. If
the Software is made available on media, and if you wish to receive the Software
on media, there may be a small charge for the media and for shipping and
handling. You are responsible for any and all taxes. If the Software is
provided as part of a service, there may be fees charged for the service.
6. PROPRIETARY RIGHTS. APS and its
licensors retain all title, ownership, and intellectual property rights in the Software.
The Software is protected by copyright and other intellectual property laws and
by international treaties. The Software includes articles about security
issues. These articles are provided to you for your personal, non-commercial
use as a convenience to you. Neither APS nor its licensors make any
representations or warranties regarding the accuracy or reliability of the
information included in these articles. Reproduction and redistribution of these
articles is strictly prohibited. APS and its licensors own all trademarks used in
connection with the Software, and no license to use any such trademarks is
provided hereunder. APS welcomes your feedback regarding our products. You
agree that APS may use in any manner and without limitation all comments,
suggestions, complaints and other feedback you provide relating to the Software.
7. YOUR RESPONSIBILITY. You are responsible
for all activity made by anyone who uses your copy of the Software, including
all legal liability incurred from the use of the Software by you or others. You
are responsible for keeping your password confidential. You may use the Software
for lawful purposes only.
8. ACCESS COSTS. You must
provide at your own expense the equipment and Internet connections that you
will need to use certain features of the Software, such as to obtain an overall
network security score. If you are accessing the internet through a telephone
line, please call your local phone company to determine if the access numbers
you select are subject to long distance or other toll charges at your location.
You are solely responsible for any costs you incur to access the Internet
through any wireless or other communication service.
9. ADDITIONAL SERVICES.
Other products and services (“Additional Services”) may be made
available through the Software, sometimes for a fee. Use of each Additional
Service may be governed by different or additional terms and conditions. Such
additional terms and conditions will be presented to you at the time you decide
to register for or use one of these Additional Services. The Additional
Services may also be subject to different information collection and usage
practices. If this is the case, you will be notified prior to your use of the
Additional Service of the applicable privacy policy, which will describe the
relevant information collection and usage practices. Some features, services,
and components may be available for use only by certain categories of users,
such as members of fee-based services offered by APS or its affiliates.
10. USE AND AVAILABILITY OF OPEN SOURCE CODE. Portions of the Software were created using IPHelper source
code from the Project JEDI website. The source code can be obtained
from the JEDI home page, located at http://delphi-jedi.org Its use is
governed by the Mozilla Public License, available from: http://www.mozilla.org/MPL/MPL-1.1.html.
The IPHelper source code has not been modified by APS or its licensors.
11. CHANGES TO THE SOFTWARE; NO SUPPORT. This Agreement does not entitle you to receive from AOL hard-copy
documentation, support, telephone assistance, or enhancements or updates to the
Software. AOL reserves the right to alter, remove or discontinue any feature,
service, licensing terms, or other characteristics of the Software and any
version made available hereunder.
12. TERMINATION. If you violate the terms of this Agreement, this Agreement and your
right to use the Software shall terminate immediately and without notice. In
the event of any termination of this Agreement or your rights hereunder, all
provisions of this Agreement except the License Grant (Paragraph 1) shall
survive such termination and you agree to continue to be bound by those terms.
Upon termination, you must destroy all copies of the Software.
13. YOUR
REPRESENTATIONS. You represent and warrant that you have adequate
legal capacity to enter into this Agreement, that you will use the Software
only for lawful purposes and in accordance with this Agreement, and that you
will not use the Software in violation of any law, regulation or ordinance or
any right of APS or its licensors or any third party, including, without
limitation, any right of privacy, publicity, copyright, or trademark. You also
represent and warrant that you will provide a true and accurate email address
when you register your computers. You agree to indemnify APS, its parent,
licensors, officers, agents, employees and directors for any damages incurred
as a result of a violation of this paragraph.
14. INJUNCTIVE RELIEF. You
acknowledge and agree that, notwithstanding any other provisions of this
Agreement, your breach or threatened breach of this Agreement shall cause APS
irreparable damage for which recovery of money damages would be inadequate and
that APS, therefore, may obtain timely injunctive relief to protect its rights
under this Agreement in addition to any and all other remedies available at law
or in equity.
15. DISCLAIMER OF WARRANTY. THE SOFTWARE
IS PROVIDED WITH ALL FAULTS ON AN "AS IS" BASIS. APS AND ITS
LICENSORS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE
WARRANTIES THAT THE SOFTWARE IS FREE OF DEFECTS, VIRUS FREE, AND ABLE TO
OPERATE ON AN UNINTERRUPTED BASIS, THAT THE FUNCTIONALITY OF THE SOFTWARE WILL
MEET YOUR REQUIREMENTS, OR THAT ERRORS IN THE SOFTWARE WILL BE CORRECTED, AND
THE IMPLIED WARRANTIES THAT THE SOFTWARE IS MERCHANTABLE, OF SATISFACTORY
QUALITY, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, OR NON-INFRINGING,
UNLESS SUCH IMPLIED WARRANTIES ARE LEGALLY INCAPABLE OF EXCLUSION. FURTHER, APS
AND ITS LICENSORS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE
OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF THEIR CORRECTNESS,
ACCURACY, RELIABILITY, OR OTHERWISE. IN ADDITION, THE SECURITY MECHANISMS IMPLEMENTED
BY THE SOFTWARE HAVE INHERENT LIMITATIONS, AND YOU MUST DETERMINE THAT THE SOFTWARE
SUFFICIENTLY MEETS YOUR REQUIREMENTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE
GIVEN BY APS OR AN APS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN
ANY WAY INCREASE THE SCOPE OF ANY WARRANTY THAT CANNOT BE DISCLAIMED UNDER
APPLICABLE LAW. APS AND ITS LICENSORS HAVE NO LIABILITY WITH RESPECT TO YOUR
USE OF THE SOFTWARE. YOU BEAR THE ENTIRE RISK AS TO ITS QUALITY AND PERFORMANCE
AND ASSUME THE ENTIRE COST OF ANY SERVICE AND REPAIR. THIS DISCLAIMER OF
WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE
IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
16. LIMITATION OF LIABILITY. TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL APS OR ITS PARENT,
AFFILIATES, DIRECTORS, EMPLOYEES, DISTRIBUTORS, LICENSORS, SUPPLIERS, AGENTS OR
RESELLERS (COLLECTIVELY, THE "APS GROUP") BE LIABLE FOR ANY INDIRECT,
SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN
ANY WAY RELATING TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE,
LOST PROFITS, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL
OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF,
AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE)
UPON WHICH THE CLAIM IS BASED. IN ANY CASE, THE APS GROUP'S ENTIRE COLLECTIVE LIABILITY
UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM
OF THE FEES YOU PAID FOR THIS LICENSE (IF ANY) AND REPLACEMENT OF DEFECTIVE
MEDIA OR PROVISION OF A REASONABLY SIMILAR SOFTWARE PRODUCT, AS DETERMINED AT APS'S
SOLE DISCRETION, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY
LIMITED REMEDY, WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE
NEGLIGENCE OF APS TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF
DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR
LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, SO THIS EXCLUSION
AND LIMITATION MAY NOT APPLY TO YOU. THE APS GROUP IS NOT RESPONSIBLE FOR ANY
LIABILITY ARISING OUT OF THE CONTENT PROVIDED BY A THIRD PARTY THAT IS AVAILABLE
IN THE SOFTWARE AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
17. IMPORT/EXPORT
CONTROL.
You agree to fully comply with all export and import laws, regulations, rules
and orders of the United States, or any foreign government agency or
authority, and not to directly or indirectly export, re-export, transfer, or
release the Software, any other commodities, software or
technology received from APS, 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. You further agree to assume responsibility for and bear all
expenses relating to your compliance with the described laws, regulations,
rules and orders, and obtaining all necessary authorizations and clearances.
18. HIGH RISK ACTIVITIES. The Software
is not fault-tolerant and is not designed, manufactured or intended for use in
environments in which its failure could lead directly 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, APS AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY
EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. YOU AGREE THAT
THE APS GROUP WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM THE USE
OF THE SOFTWARE IN SUCH APPLICATIONS.
19. U.S. GOVERNMENT END-USERS. The Software
is 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 Software with only those rights as set
forth herein.
20. ELECTRONIC NOTICES. YOU CONSENT TO APS PROVIDING YOU ANY
INFORMATION AND NOTICES REGARDING THE SOFTWARE (“NOTICES”) IN ELECTRONIC FORM. APS
MAY PROVIDE NOTICES TO YOU (1) VIA E-MAIL IF YOU HAVE PROVIDED APS WITH A VALID
EMAIL ADDRESS OR (2) BY POSTING THE NOTICE ON A WEBSITE DESIGNATED BY APS FOR
THIS PURPOSE. The delivery of any Notice is effective when sent or posted by APS,
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 Software.
21. MISCELLANEOUS. (a) This
Agreement constitutes the entire agreement between you and APS concerning the
subject matter of this Agreement, which may only be modified by APS. (b) Except
to the extent applicable law, if any, provides otherwise, this Agreement shall
be governed by the laws of the Commonwealth of Virginia, U.S.A., excluding its
conflict of law provisions. (c) You agree that jurisdiction for any claim or
dispute arising from the use of the Software resides exclusively in the federal
and state courts of the Commonwealth of Virginia and you consent to the personal
jurisdiction thereof. The foregoing provision may not apply to you depending on
the laws in your jurisdiction. PLEASE NOTE THAT BY AGREEING TO THIS AGREEMENT, YOU ARE:
(1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST US BASED ON THE LAWS
OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE
EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE OR FEDERAL COURTS IN THE
COMMONWEALTH OF VIRGINIA OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH APS; AND (3)
SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN THE
COMMONWEALTH OF VIRGINIA FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR
CLAIMS. (d) This Agreement shall not be
governed by the United Nations Convention on Contracts for the International
Sale of Goods. (e) 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 APS may
at its option instead terminate this Agreement. (f) 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. (g) 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. (h) You may not assign or otherwise transfer by operation of
law or otherwise this Agreement or any rights or obligations herein. APS may
assign this Agreement to any entity at its sole discretion. (i) This Agreement
shall be binding upon and shall inure to the benefit of the parties, their
successors and permitted assigns. (j) 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.
22.
USER OUTSIDE THE U.S.
If you are using the Software 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 Software, 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 Software would
prohibit the enforceability of this Agreement, or impose any additional burdens
on APS, 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 Software
and you agree to remove it from your computer.
Active Security Monitor
Software EULA Rev. 5/18/06