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. 

 

(a) SOFTWARE ID.  If you install the Software, but do not register your computer and the Software in order to receive a network security score, the information gathered by the Software to determine the security status of your computer is not shared with APS. APS does assign a unique identification number to your copy of the Software, but uses this information only on an anonymous basis to track the number of unique instances of the Software in use, to update the Software and to check whether the Software has received updates.

 

(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.

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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


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