NOTICE TO USER: PLEASE READ THIS CONTRACT CAREFULLY.
BY DOWNLOADING AND INSTALLING ALL OR ANY PORTION OF THE SOFTWARE YOU AGREE TO AND ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, WHICH INCLUDE THE LIMITATIONS ON USE CONTAINED IN SECTION 2; LIMITATIONS ON TRANSFERABILITY IN SECTION 6; THE LIMITED WARRANTY IN SECTIONS 8 AND 9; THE DISCLAIMER OF WARRANTY AND LIMITATIONS ON LIABILITY IN SECTIONS 10 AND 11; AND THE EXCLUSIVE DISPUTE RESOLUTION PROVISIONS IN SECTION 13.
ESG RESERVES THE RIGHT TO MODIFY THIS EULA AS NEEDED IN ITS SOLE DISCRETION. THE EULA IN EFFECT AT THE TIME YOU DOWNLOADED THE SOFTWARE WILL GOVERN YOUR USE OF IT, UNLESS WE OBTAIN YOUR CONSENT OTHERWISE. YOUR CONTINUED USE OF THE SOFTWARE AFTER A CHANGE TO THE EULA HAS BEEN BROUGHT TO YOUR ATTENTION WILL CONSTITUTE YOUR ACCEPTANCE OF THE CHANGES AND THE REVISED EULA. IF YOU DO NOT AGREE THAT THIS AGREEMENT IS ENFORCEABLE, DO NOT USE THIS SOFTWARE.
("ESG") means Enigma Software Group USA LLC, a Florida limited liability company, 2803 Gulf to Bay Blvd., Suite #446, Clearwater, FL 33759 USA, a developer of computer security software and Internet-based systems.
("Esellerate.net") means The Registration Network, or Esellerate.net is a wholly owned subsidiary of Digital River, Inc, a Minnesota publicly traded company, NASDAQ symbol DRIV, 9625 West 76th Street Eden Prairie, MN 55344 USA, a leading reseller and enabler in the software and online subscription industry.
("Software") means all of the contents of the files or other media with which this Agreement is provided, including but not limited to (a) ESG or third party computer information, Software, or Database; (b) digital images, stock photographs, clip art, sounds or other artistic works ("Stock Files"); (c) related explanatory written materials or files ("Documentation"); and (d) fonts; and (e) upgrades, modified versions, Updates, additions, copies of the Software, and Database Updates, if any, licensed to you by ESG (collectively, "Updates").
("Use") or ("Using") means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation.
("Database") means a structured collection of records or data that is stored, encrypted, and tabulated in a proprietary format. Our Database relies upon our Software to organize and interpret the stored data. Our data contains the structure and removal rules of malignant malware components. In addition, our Database may contain exclusions of non-malignant file components. In order to efficiently combat the threat of malware, our Database requires constant Updates.
("Permitted Number") means the number of computers that can install and use a copy of the Software, and such number is one (1) by default unless otherwise indicated under a valid license (e.g., a volume license) specifically negotiated and granted by ESG.
("Computer") means an electronic device that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
2. SOFTWARE LICENSE.
As long as you comply with the terms of this EULA (the "Agreement"), ESG grants to you a non-exclusive license to use the Software for the purposes described in the Documentation.
2.1. General Use. You may install and use the Software on your compatible computer, up to the Permitted Number of computers; or
2.2. Server Use. You may install one copy of the Software on your computer file server for the purpose of downloading and installing the Software onto other computers within your internal network up to the Permitted Number or you may install one copy of the Software on a computer file server within your internal network for the sole and exclusive purpose of using the Software through commands, data or instructions (e.g. scripts) from another computer on your internal network, provided that the Computer that accesses or uses the Software on such computer file server at any time, whether concurrent or not, does not exceed the Permitted Number. No other network use is permitted without negotiation and purchase of a volume or server license; and
2.3. Backup Copy. You may make one backup copy of the Software, provided your backup copy is not installed or used on any computer. You may not transfer the rights to a backup copy unless you transfer all rights in the Software as provided under Section 6.
2.4. Home Use for Business Copies. If you are using the Software at your business, and you are the primary user of the computer that is licensed to use the Software, you may, also install the Software on one of your home computers. However, the Software may not be used on your home computer at the same time the Software on your business computer is being used.
If the Software supports multiple platforms or languages, if you receive the Software on multiple media, if you receive a Content Update (as set forth in Section 5 below), if you otherwise receive multiple copies of the Software, or if you received the Software bundled with other Software, you may only use the Software as licensed above. You may not rent, lease, sublicense, lend or transfer any versions or copies of the Software you do not use. If the Software is a Content Update, as discussed in Section 5 below, you must possess a valid license to such previous version in order to use the Content Update.
3. INFORMATION WE COLLECT FROM YOU AND YOUR COMPUTER
3.1. Information Collected/Transmitted During Scans.
3.1(a). Diagnostic Report. If you push the "Start Scan" button or select "Start Full Scan" from the "SpyHunter Scanner" dropdown menu, a diagnostic report from your system will be transmitted to ESG's Technical Team for diagnostic purposes. The information transmitted is identical to the information that is displayed when you press "Generate Support Log" within the "Spyware Helpdesk" tab of the user interface. In addition, SpyHunter sends ESG the SpyHunter version number and language, the IP address of the computer on which SpyHunter is installed, and a unique number that identifies your copy of SpyHunter. For paid users, SpyHunter also transmits their username and password. We collect this information for the purposes of diagnosing new malware threats and for tracking the location of malware infections. The information collected is encrypted when sent, it is stored on ESG's system until it can be analyzed and statistical and other information is extracted. The extracted information does not contain any IP addresses or user identifiable information. For free scans, once the relevant information is extracted, the diagnostic report is purged in due course. For paid users, the diagnostic report is retained for use in customer service. The diagnostic report information is not shared with any third parties. Note that SpyHunter allows you to opt-out of transmitting the diagnostic report by visiting the "General" tab under the "Settings" tab and changing the option for "transmit diagnostic information." Note, the normal operation of SpyHunter depends upon transmission of diagnostic information, and in order for SpyHunter to work safely and effectively, it is strongly recommended that you leave this feature enabled.
3.2. Updates To SpyHunter. If you select the "Program Update" or "Definitions Update" option within the "Update Tab" on the user interface, SpyHunter sends ESG the SpyHunter version number and language, a unique number that identifies your copy of SpyHunter, and the IP address of the computer on which SpyHunter is installed. The SpyHunter version number and unique number are used to identify the specific updates to transmit and to allow a specific copy of SpyHunter to be de-activated if it is being used for hacking or malicious purposes. No geolocation or other identifying information (such as IP address) is analyzed or stored, other than in ordinary server logs which are purged frequently. None of the information collected is shared with any third parties, nor does it contain user identifiable information.
3.4. Personal Information We Collect to Provide Services to You. If you are a paid licensee, we collect and use the information you provide us, such as the identifying information you provide when you register at /purchase_spyhunter.php, the information you provide when communicating with customer support, and the scans you conduct of your computer. We use that information to provide services to you, for certain accounting and auditing purposes, and to update the Malware Tracker application. If you are a paid licensee, your username and password are sent and received during each communication to authenticate you as a user. Payment card and other financial information are collected solely by ESG's payment processor, Esellerate.net, and is used to verify and collect payment for licenses to use ESG's products. Payment and financial information are not collected by ESG and are not stored on ESG's systems. We take steps to safeguard and protect your personal information, which include but are not limited to, ensuring that information is encrypted before it is sent to or from us to you and that statistical information we develop is not tied to your username or your IP address.
3.5. Personal Information of Former Paid Licensees. ESG retains non-financial contact information, and support and scan logs, for paid customers whose licenses have expired to facilitate renewal or reinstatement. Esellerate.net stores payment and billing information of customers whose software licenses have expired to ensure accurate processing of chargebacks and for auditing purposes. We take steps to safeguard and protect your personal information, which include but are not limited to, ensuring that information is encrypted before it is sent to or from us to you.
When you purchase SpyHunter, your account will be configured for six month semi-annual automatic billing. If you choose to cancel the automatic billing option, you can accomplish this by either: (a) opening a ticket with technical support (on the following URL: /support/) and request to opt-out of the automatic billing option, (b) contact our payment processor Esellerate.net at 1-800-999-2734 (for international callers 1-719-576-0123), (c) or email Esellerate.net at firstname.lastname@example.org. If you cancel automatic billing, we will not bill you for continued service when your account expires. If you desire continued service, it will be your responsibility to renew your account. If you remain on automatic billing, your account will automatically renew at the end of your subscription and your credit card will be billed accordingly.
5. CONTENT UPDATES.
SpyHunter is updated from time to time (including but not limited to the following: (a) the SpyHunter Software, (b) the malware definitions & signatures Database, (c) updated URL lists, (d) and other miscellaneous blacklist & whitelist Databases. These Updates are collectively referred to as "CONTENT UPDATES"). You shall have the right to obtain Content Updates for the duration of your subscription, which is 6 months after your purchase of a license. ESG may create a new version of its software, or otherwise create a Content Update that is sufficiently new or different that it will require purchase of a separate subscription to access such Content Update. In such event, you nonetheless will have access to other Content Updates, which will permit you full benefit of your six-month license. This License does not otherwise permit Licensee to obtain and use Content Updates.
6. INTELLECTUAL PROPERTY RIGHTS.
The Software and any copies that you are authorized by ESG to make are the intellectual property of and are owned by ESG and its suppliers. The structure, organization, Database, and code of the Software are the valuable trade secrets and confidential information of ESG and its suppliers.
The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used.
The Software includes the curl and libcurl free software, which is subject to the following copyright and permissions: Copyright (c) 1996 – 2009, Daniel Stenberg, email@example.com. All rights reserved. Permission to use, copy, modify, and distribute this software for any purpose with or without fee is hereby granted.
You may not copy the Software, except as set forth in Section 2 ("Software License"). Any copies that you are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software. You agree not to modify, adapt or translate the Software. You also agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software except to the extent you may be expressly permitted to decompile under applicable law, it is essential to do so in order to achieve operability of the Software with another Software program, and you have first requested ESG to provide the information necessary to achieve such operability and ESG has not made such information available. ESG has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any information supplied by ESG or obtained by you, as permitted hereunder, may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any Software which is substantially similar to the expression of the Software. Requests for information should be directed to the ESG Customer Support Department. Trade names and or Trademarks ("hereafter Trademarks") shall be used in accordance with accepted trademark practice, including identification of trademarks owners' names. Trademarks can only be used to identify printed output produced by the Software and such use of any trademark does not give you any rights of ownership in that trademark. Except as expressly stated above, this Agreement does not grant you any intellectual property rights in the Software.
You may not rent, lease, sublicense or authorize all or any portion of the Software to be copied onto another user's computer except as may be expressly permitted herein. You may, however, transfer all your rights to use the Software to another person or legal entity provided that: (a) you also transfer each this Agreement, the Software and all other Software or hardware bundled or pre-installed with the Software, including all copies, Updates and prior versions, to such person or entity; (b) you retain no copies, including backups and copies stored on a computer; and (c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased a license to the Software. Notwithstanding the foregoing, you may not transfer education, pre-release, or not for resale copies of the Software.
8. USE ONLY AS LICENSED.
As set forth in Section 2, above, the Software may only be used as licensed.
9. LIMITED WARRANTY.
You hereby acknowledge that the Software may not be uninterrupted and cannot be guaranteed error free and further acknowledge that the existence of any such errors shall not constitute a breach of this Agreement by ESG. In particular, ESG does not guarantee that the Software will detect and/or remove all known viruses, spyware, adware, malware, Trojans, keyloggers and trackware, or locate all browser infections and tracking cookies on your computer, nor that the Software will not occasionally erroneously report a virus in a file or system not infected by that virus. If the Software is a beta version, you acknowledge and agree that (a) the Software may contain errors and defects and may not function as intended or in accordance with its specifications; and (b) you assume all risk in using the Software and agree to take due care in the installation, execution and testing of the Software on your computer system.
9.1. The particular operating systems upon which the Software has been designed to execute will be published by ESG from time to time ("Compatible OS"). You agree that you will not execute or install the Software on any operating system other than a Compatible OS. You acknowledge and agree that the Software may not execute correctly and may interfere with other software if executed on an operating system which is not a Compatible OS.
9.2. In the event that any terms, conditions, representations or warranties are implied by statute, common law or equity ("Prescribed Terms") into this Agreement which cannot be lawfully excluded, the Prescribed Terms will apply to this Agreement, save that the liability of ESG for breach of any Prescribed Terms will be limited, to the extent permitted by law, at the option and sole discretion of ESG, to any one or more of the following: (a) the replacement of the Software to which the breach relates or the supply of equivalent Software; (b) the repair of the Software; (c) the payment of the cost of replacing the Software or of acquiring equivalent Software; or (d) the payment of the cost of having the Software repaired.
9.3. If the liability of ESG for breach of any Prescribed Terms is capable of exclusion, they are hereby excluded to the fullest extent permitted by law.
9.4. Except as provided by the Prescribed Terms (if any), which are not capable of exclusion or limitation, or as expressly set out in these terms: (a) ESG makes no warranties in relation to the Software, including warranties as to the performance or fitness for purpose of the Software (other than that ESG is entitled to grant to you the rights set out in this EULA); (b) you will not under any circumstances have any cause of action against, or right to claim or recover from, ESG for or in respect of any loss, damage or injury (including without limitation any loss of profit, indirect or consequential loss, damage or injury) arising from the supply or use of the Software or any breach of these terms; and (c) subject to paragraph (b) above, the maximum liability of ESG to you in respect of any breach of this Agreement or otherwise in respect of your use of the Software will be the amount you have paid ESG for the Software and if you have not paid ESG any amount for the Software, will be the amount of USD $0 (zero dollars).
9.5. You acknowledge that this is the sole agreement between you and ESG, and you have exercised your independent judgment in acquiring the Software and have not relied upon any representations made by ESG which have not been stated expressly in this Agreement or upon any descriptions or illustrations or specifications contained in any document including catalogues or publicity material produced by ESG.
9.6. For further warranty information, please see the jurisdiction specific information in our GOVERNING LAW section which is Section 13 of this Agreement, if any, or contact ESG's Customer Support Department.
9.7. Further instructions on the procedures and policies to make a warranty claim are explained in our REFUND POLICY which is Section 17 of this agreement. Your exclusive remedy shall be limited to either, at ESG's option, the replacement of the Software or the refund of the license fee you paid for the Software.
THE FOREGOING LIMITED WARRANTY STATES THE SOLE AND EXCLUSIVE REMEDIES FOR ESG'S OR ITS SUPPLIER'S BREACH OF WARRANTY. ESG AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, AND FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, ESG AND ITS SUPPLIERS MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS, INCLUDING BUT NOT LIMITED TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, SATISFACTORY QUALITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
11. LIMITATION OF LIABILITY.
IN NO EVENT WILL ESG OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF AN ESG REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. ESG'S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY. Nothing contained in this Agreement limits ESG's liability to you in the event of death or personal injury resulting from ESG's gross negligence or intentional misconduct. ESG is acting on behalf of its suppliers for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose. For further information, please see the jurisdiction specific information at the end of this Agreement, if any, or contact ESG's Customer Support Department.
12. EXPORT RULES.
You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation (including without limitation Iran, Iraq, Syria, Sudan, Libya, Cuba, North Korea, and Serbia) and that you are not otherwise prohibited under the Export Laws from receiving the Software. All rights to use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
13. GOVERNING LAW AND DISPUTE RESOLUTION.
This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of New York. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. All disputes arising from or related to your use of the Software shall be resolved through binding, confidential arbitration, which is the sole and exclusive remedy for any dispute. Such arbitration shall be conducted in accordance with the American Arbitration Association's Consumer Procedure Rules. (The arbitration need not be conducted, however, by or under the auspices of the American Arbitration Association if the parties mutually agree to another arbitrator). There shall be one arbitrator selected by mutual agreement of the parties. If the parties are unable to agree to an arbitrator, either party may request that the American Arbitration appoint an arbitrator. Any dispute as to whether a specific issue is covered by this EULA or is subject to arbitration will be determined by the arbitrator. The arbitration shall be conducted in the complaining party's home jurisdiction unless the amount demanded exceeds $10,000, in which case the arbitration shall occur in Manhattan County, New York. The arbitrator will determine whether substantive motions or discovery will be permitted, and will determine the scope of such matters, provided that the arbitrator will authorize the discovery and enter the prehearing orders necessary to ensure a fair, private hearing. Arbitration awards may be confirmed by any court of competent jurisdiction.
14. GENERAL PROVISIONS.
If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. This Agreement shall not prejudice the statutory rights of any party dealing as a consumer. This Agreement may only be modified by a writing signed by an authorized officer of ESG Updates may be licensed to you by ESG with additional or different terms. This is the entire agreement between ESG and you relating to the Software and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the Software.
15. NOTICE TO U.S. GOVERNMENT END USERS.
The Software and Documentation are "Commercial Items," as that term is defined at 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 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through §227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. For U.S. Government End Users, ESG agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.
16. COMPLIANCE WITH LICENSES.
If you are a business or organization, you agree that upon request from ESG or ESG's authorized representative, you will within thirty (30) days fully document and certify that use of any and all ESG Software at the time of the request is in conformity with your valid licenses from ESG.
17. REFUND POLICY.
Refund requests from purchases placed directly at ESG's purchase page (via online download or on CD) must be requested through our payment processor Esellerate.net. ESG has authorized Esellerate.net to process all the refund requests from our subscribers. You must adhere to the following guidelines and initiate the refund request within 30 days from the date of purchase in accordance with our policy below. In addition, ESG has also authorized Esellerate.net to also provide a refund outside the 30 day period where it is required by law to do so.
17.1. All requests for refunds must be made to Esellerate.net within 30 days of the date ESG and Esellerate.net first made the software available to you for download (the "Purchase Date"). You can accomplish this by either contacting Esellerate.net at 1-800-999-2734 (for international callers 1-719-576-0123), or email Esellerate.net at firstname.lastname@example.org. ESG and Esellerate.net will also provide you with a refund where it is required to do so by law.
17.2. You must provide ESG and/or Esellerate.net with sufficient information to be able to identify your transaction, such as the order number and/or e-mail address and/or date of transaction given to you when the download was ordered.
17.3. ESG and Esellerate.net will only refund the amount you paid for the software plus any appropriate taxes charged with that order. ESG will not refund any shipping or handling charges that may have been charged to you in respect of your return of your CD to Esellerate.net.
17.4. Refunds will be made in the same manner as you purchased the product. For example, if you purchased the product by Paypal, ESG will send your refund to your Paypal account. If you purchased by credit card, your credit card account will be credited.
17.5. ESG is not responsible for lost or misdirected mail, delays for downloading, or other communication system delays.