This License and Services Agreement for Bitdefender Solutions (“Agreement”) is a legal agreement between Bitdefender and You, for use of the Bitdefender software and the initialization of the services and any other service provided by Bitdefender (“ Bitdefender NTS”).
“You” or “Your” refers to an individual or entity that has executed this Agreement and ordered Bitdefender Software and/or services from Bitdefender or its authorized resellers or distributors.
“Agreement” is the legal agreement concluded between Bitdefender and You, for the use of the Bitdefender Software and the services. An employee or other agent, including a reseller or contractor which installs or registers a Bitdefender Appliance, must be a representative of the installing / registering entity and must accept this Agreement on behalf of the entity before the Bitdefender Appliance may be used. Please print this Agreement and save a copy electronically.
“Affiliate” means any entity which You own or control, directly or indirectly, or, as applicable, any parent company owning or controlling You, as well as any of companies which the parent company controls. For purposes of this definition, “control” means the direct or indirect beneficial ownership of over fifty percent (50%) of the voting interests (representing the right to vote for the election of directors or other managing authority) in an entity.
“Appliance” means the Hardware, the Software and the related Documentation. Software, Hardware and services are identified in the transaction documents and the initialization of the services, and may include associated media, printed materials, and Documentation.
“Bitdefender Hardware” shall mean, as specified within the Software Documentation, namely the hardware provided by You for virtualization purposes, which must meet the System Requirements as such requirements are defined within the said Documentation.
“Documentation” means explanatory materials in printed, electronic or online form that accompany the Appliance.
“Software” means the software owned by Bitdefender and consisting in (Virtual) Probe software and including any Updates or Upgrades.
“Update” means an update to the detection data or software made available to You at Bitdefender sole discretion from time to time, but excluding any updates marketed and licensed for a separate fee.
“Upgrade” means any enhancement or improvement to the functionality of the Bitdefender Software made available to You at Bitdefender’s sole discretion from time to time but excluding any software and/or upgrades marketed and licensed for a separate fee.
“User” means an employee, independent consultant or other individual of Your entity who uses or has access to or benefits from the Appliance licensed to you.
A. The Appliance may only be used in connection with each other and may not be used separately. The Appliance is further specified in the product specification which is provided together with the Appliance and any update or upgrade thereof. The warranty and support of the Bitdefender Hardware are stated in the Dell’s Customer Master Services Agreement as set forth at www.dell.com/servicecontracts (“CMSA”).
B. At its sole discretion Bitdefender may also deliver the Software for use in a virtualisation environment such as VMware or Hyper-V. In this case the Appliance (for this case also referred to as “Virtual Appliance”) shall consist of the Software together with the virtualisation hardware and resources as designated by the You. Bitdefender provides no warranty or support on this hardware, and only provides support on the Virtual Appliance in so far as the environment is configured by, or in accordance with, Bitdefender specifications. Where reference is made to the “(Virtual) Appliance” both the Virtual Appliance and the Appliance are intended to be indicated, depending on which version(s) of the Software You are entitled to.
C. Bitdefender may also deliver a probe to produce IPFIX traffic (“Probe”). This Probe will consist of both hardware and software. The software may also be used in virtual environments and hereinafter is called the Virtual Probe or, (Virtual) Probe, where both the physical and virtual products are concerned. Any conditions pertaining to the (Virtual) Appliance are also applicable to the (Virtual) Probe. Where this EULA refers to “Software” this includes the (Virtual) Probe software. Where this EULA refers to “Hardware” this will include Probe hardware. Hardware shall be defined as any hardware supplied through, or by Bitdefender for use with the Software. Bitdefender will provide the (Virtual) Appliance with intelligence and updates to detection algorithms (heuristics). This intelligence data and these heuristics and updates are produced by the Bitdefender Malware Intelligence Team (MIT) and is therefore called MIT data (“MIT Data”). You acknowledge and agree Bitdefender holds database rights and copyrights to the MIT data.
D. Use of the Bitdefender Software by You is subject to the terms and conditions of this EULA. Please read this EULA carefully before ordering the (Virtual) Appliance and/or installing or using the Software and/or the (Virtual) Appliance. You indicate your acceptance of and you agree to be bound by this EULA by ordering the (Virtual) Appliance and/or installing, having it installed, or using the Appliance. If you do not accept or agree to this EULA, do not order the (Virtual) Appliance and/or do not install, have it installed or use the (Virtual) Appliance and return the Appliance to Bitdefender, or its authorized resellers or distributors, or destroy any copies of the Virtual Appliance you have in your possession.
E. Registration requires a valid Bitdefender Account that includes a valid email address for receiving Updates, Upgrades, other notices and a valid product license. The Bitdefender Account is mandatory for the use of the Bitdefender Solution, as stated in the Product Documentation. For all Bitdefender Solutions excepting Bitdefender Security for AWS registration requires a valid product serial number available in the transaction documentation from the Bitdefender distributor or reseller from which You obtained the Bitdefender Solution. This control helps ensure that the Bitdefender Solution operates only on validly licensed devices, virtual machines and mobile devices and that validly licensed users receive services. The Bitdefender Account is necessary for the activation of the online features, as stated in the Product Documentation. The Bitdefender Security for AWS, is a subscription-based service offered by Bitdefender for Amazon EC2 customers. If you purchase directly from Bitdefender, You must have an Amazon Payments account with a valid credit card necessary for the monthly billing. You are not provided with or required to use a license key.The Bitdefender Solution features and terms are presented on the Bitdefender website, e-shop or the applicable transaction documentation. F. The information given (name, email address, password) during initial setup, if collected, will be used as an account name under which You may elect to receive services. You may change and Bitdefender strongly recommends you to do so, the initial password at any time after installation of the Appliance.
1. SOFTWARE LICENSE
1.1. Upon Bitdefender’s acceptance of your order and in consideration of the payment of the fee by you and receipt of the corresponding payment by Bitdefender, as well as subject to the provisions of this EULA, Bitdefender hereby grants You a limited, non-exclusive, non- transferable right for the sole purpose of using the Software on the Bitdefender Hardware as part of the Appliance purchased, leased or otherwise received from Bitdefender or any of its authorized resellers or distributors, subject to the terms of this agreement, including the order and the product documentation, for the duration of this EULA as described in article 11 (Term and Termination). The Software is loaded in the temporary memory (i.e. RAM) of the designated Bitdefender Hardware and may only be used in connection with that designated Bitdefender Hardware.
1.2. You may install or use the Bitdefender Solutions and initiate the services, on as many devices as necessary with the limitation imposed by the total number of licensed seats stated in the order. Depending on the purchased Product, You will be entitled to license for physical computers, virtual machines, Amazon EC2 instances and/or Exchange mailboxes, as stated in the purchasing documents.
1.3. Use of the Software and (Virtual) Appliance may only take place on hardware located within the Territory agreed in the primary contract between Bitdefender and You. If no further Territory is defined there, the Territory shall be defined as the territory of the country where Bitdefender is established, plus the territory of countries that are members to the European Union.
1.4. Similar to the conditions imposed at article 1.1., in case of the Virtual Appliance, Bitdefender hereby grants You a limited, non-exclusive, non-transferable right, subject to the terms of this agreement, including the order and the Software Documentation, to use the Software as part of the Virtual Appliance purchased, leased or otherwise received from Bitdefender or any authorized resellers. Unless expressly agreed between Bitdefender and You, this Virtual Appliance may not be copied, re-instantiated or re-used in any way. The Software may only be loaded once in the temporary memory (i.e. RAM) of the designated virtualisation hardware. You can make one copy of the Bitdefender Solution for back-up or archival purposes; If the Bitdefender Solution supports multiple platforms or languages, if you receive the Bitdefender Solution on multiple media, if you otherwise receive multiple copies of the Bitdefender Solution, or if you receive the Bitdefender Solution bundled with other software, the total number of your devices on which all versions of the Bitdefender Solution are installed may not exceed the Permitted Number. During the installation process, the Bitdefender Solution may uninstall or disable other security products if such products or features are incompatible with Bitdefender Solution.
You may use the Software only to manage Your own computer network and not to manage any other computer networks. Except as expressly permitted under this EULA, You are not entitled to (a) remove from or change in the Software any designation concerning copyrights, trademarks or other intellectual and / or industrial property rights, including any indications concerning the confidential nature of the Software (b) use the Software to provide hosting services, use the Software to operate as an outsourcer, use the Software in a time- sharing arrangement; (c) attempt to disable or circumvent any of the licensing and security mechanisms within the Software.
1.5. You, as licensee of the Appliance are not entitled to use the Software on another Appliance than on the designated Appliance. The Virtual Appliance may only be used on designated virtualisation hardware that is under Your exclusive control.
1.6. You are entitled to use the Software only as initially registered with Bitdefender and solely on Bitdefender Hardware at the stage of initializing the services. For the avoidance of any doubt, as part of the first installation of the (Virtual) Appliance, You are required to register your (Virtual) Appliance with Bitdefender. Should You wish to use the (Virtual) Appliance within another computer network, You are entitled to do so only after the written approval of Bitdefender or after You have re- registered your (Virtual) Appliance with Bitdefender.
1.7. You, as licensee of the Virtual Appliance and Virtual Probe may only use the Software on a single virtualisation host, unless it is expressly agreed otherwise between Bitdefender and You. The licensees of the Virtual Appliance and Virtual Probe may be requested by Bitdefender, at any time, to produce a written overview of all copies of the Virtual Appliance and Virtual Probe that You have in your possession and the location, relevant settings and type of virtualisation hardware in use.
1.8. For each (further) copy of the Virtual Appliance that You require, a separate copy will be obtained by (or for) You from a source designated by Bitdefender.
1.9. The Software is loaded in the temporary memory (i.e. RAM) of the designated Bitdefender Hardware or the designated virtualisation hardware and protected against copying. You agree that no spare copy as meant in art. 45k of the Netherlands Copyright law will be required. If the Software is destroyed or damaged, You may receive a new version of the Software or an Update or Upgrade by activating the update functionality in the (Virtual) Appliance.
1.10. For purposes of Backups, Continuity (High Availability) or commercial utility Bitdefender may, at its sole discretion, agree to exceptions to paragraph 1.4 in relation to copying the Virtual Appliance and Virtual Probe, when requested by Bitdefender or You. These exceptions will be done in writing between Bitdefender and You and will form an integral part of the contract between Bitdefender and You.
1.11. Bitdefender reserves the right to stop supporting its Software or a version of its Software, or discontinue its Software or features support. End-of-support policies are posted on the website.
2. RESTRICTIONS ON USE OF THE SOFTWARE
2.1. You must comply with all applicable laws and regulations when using the Software. Also, if you do not continue to abide by the terms of this Agreement you acknowledge that you have no right to use the Bitdefender Solution and you agree to uninstall or not use the Bitdefender Solution forthwith upon you not continuing to abide by the terms of this Agreement. Bitdefender reserves the right to stop supporting its products or a version of its products, or discontinue its Products or Product features. End-of-support policies are posted on the Bitdefender website and may be consulted at the following link: https://www.bitdefender.com/support/bitdefender-end-of-life-policy-statement-982.html
2.2. Without limitation, You undertake not to use or permit anyone else to use the Software: (a) for any purpose or in any way that might harm, infringe the rights of or cause loss to any other person; (b) cause annoyance, inconvenience or anxiety; (c) to intercept or attempt to intercept any communications transmitted by way of a data communication system or network; (d) other than in conformance with the documentation, accepted internet practices and practices of any connected networks; of (e) in any way which may be regarded as misuse of the Software.
2.3. The following uses of the Software, and any attempts at such activities, are expressly prohibited: (a) furnishing false data including but not limited to false names, addresses and contact details while installing and/or registering the Software; (b) circumventing and/or disabling security measures embedded in the Software or the (Virtual) Appliance, including but not limited to authorization keys, product serialization or time limit mechanisms (c) intercepting or accessing data not intended for You, or probing the security measures of other networks; (d) uploading or distributing viruses or other forms of malware or spyware.
2.4. Without the express written consent of Bitdefender, You may not charge third parties for the use of the Software and/or (Virtual) Appliance, nor for the distribution of the data and/or warnings it generates.
2.5. Bitdefender reserves the right to temporarily or permanently remotely disable the use of the Software and/or the (Virtual) Appliance when Bitdefender has reason to suspect that You have breached or may have breached this clause or any other term of this EULA.
2.6. You may allow your End-Users to use the Appliance for this purpose and You are responsible for their compliance with EULA in such use.
3. INTELLECTUAL PROPERTY RIGHTS
3.1. The Bitdefender Solution is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Bitdefender Solutions is licensed, not sold. This agreement only gives You some rights to use the Bitdefender Solution. License Restrictions. Under this Agreement, You may not transfer or sublicense the Bitdefender Solution to another person or entity; you shall not rent, lease, loan, auction, or resell the Bitdefender Solution nor modify, translate, or create derivative works, reverse engineer, de-compile, or disassemble the Bitdefender Solution, in whole or in part, or otherwise attempt to reconstruct or discover the source or object code or underlying ideas, algorithms, file formats, programming or interoperability interfaces (or if the law permits any such action, You agree to provide with at least 90 days’ advance written notice ); you shall not use the Bitdefender Software to provide services to third parties or allow use or access to the Bitdefender Solution by any third party other than contractors or consultants acting on Your behalf. You may not permit third parties to benefit from the use or functionality of the Bitdefender Solution and Services via a timesharing, service bureau or other arrangement. You may not remove any proprietary notices or labels on the Bitdefender Solution and You may not disclose results of any program benchmark tests without Bitdefender’s prior written consent. If Bitdefender provides the Bitdefender Solution (i) embedded, incorporated or loaded onto a physical hardware device or (ii) made available for download to a designated physical hardware device, then the license is restricted to use on that device only. Additionally, you may not, (a) modify, block, circumvent or otherwise interfere with any authentication, license key or security measures in the Bitdefender Solution. You must obtain all necessary rights and permissions from your Users to use the Bitdefender Solution.Please check the sales documents and Bitdefender websites for limitations of usage among the different categories of endpoints.
3.2. For the avoidance of any doubt, all copyrights and all other intellectual and/or industrial property rights regarding the Software as well as all parts and copies thereof shall remain solely vested in Bitdefender and are not and shall not be assigned to You or any third party. You acknowledge these rights and shall refrain from any form of direct or indirect violation of these rights and shall not remove from and/or change the Software. You shall refrain from removing and/or changing any designation protected by copyrights, trademarks or other intellectual and / or industrial property rights, including any indications concerning the confidential nature of the Software.
3.3. Bitdefender shall have no liability for any claim of infringement of any intellectual property rights that is based on: (i) the use of other than the latest version of Software, if such infringement could have been avoided by the use of the latest version; (ii) the use or combination of the Software with other software, hardware or other materials not approved by Bitdefender, (iii) use of the Software in a manner other than that for which it was designed or contemplated; or (iv) any unauthorized modification of the Software made by You or a third party.
3.4. In the event that a judgement or any injunction shall be obtained against Your use or possession of the Software, Bitdefender shall, at its expense and option, promptly (i) replace the Software with a compatible, functionally equivalent, non-infringing software; (ii) modify the Software or take other action so that the Software becomes non-infringing while maintaining the equivalent functionality; (iii) procure the right for You to continue using the Software; or (iv) terminate the license and Your use of the Software and offer You a pro-rata refund of the license fee paid by You with respect to the Software depreciated on a three-year straight line basis commencing on the first date of use of the Software.
3.5. Any further liability of Bitdefender and/or its resellers or distributors regarding the infringement of third party intellectual property rights is explicitly excluded.
3.6. The Appliance may operate or interface with software or other technology that is licensed to Bitdefender from third parties, which is not proprietary of Bitdefender, but which Bitdefender has the necessary rights to license to You. You agree: you will use such third party software in accordance with this Agreement; no third party licensor makes any warranties, conditions, undertakings or representations of any kind, either express or implied, to You concerning such third party software or the products themselves; no third party licensor will have any obligation or liability to You as a result of this Agreement or Your use of such third party software; such third party software may be licensed under license terms which grant You additional rights or contain additional restrictions in relation to such materials, beyond those set forth in this Agreement, and such additional license rights and restrictions are described or linked to in the applicable Documentation, or within the Software itself. For the avoidance of any doubt, such additional rights and/or restrictions apply to the third party software on a standalone basis; nothing in such third party licenses shall affect your use of the Bitdefender Software in accordance with the terms and conditions of this Agreement. With respect to the open source software, the license terms in the section Open Source License Terms as published in each Bitdefender Software shall apply to the extent expressly required by such third party licenses, terms of relevant licenses (including in particular the scope of license as well as disclaimers of warranties and liabilities) in lieu of this EULA. In respect of the open source software, the following stipulations shall apply to the extent expressly required by the their licenses, the terms of relevant licenses (including in particular the scope of license as well as disclaimers of warranties and liabilities) shall apply to the respective any third party software in lieu of this Subscription agreement. Such third party license terms relating to respective software are located at the place as indicated in the software.
4.1. By accepting this Agreement, during the Subscription Period, You acknowledge and agree that a server system of your choice installed in your network may be used for receiving and serving Updates of the Bitdefender Solution. The necessary protocol will not be used for anything other than transmitting and receiving Bitdefender updates of product and signatures files. Some Updates as signature updates, bugfix or smaller updates will be automatically downloaded to Your device and major updates will require your intervention in the interface. You must be current in the payment of fees for the Bitdefender Solution or have an active subscription, as applicable, to receive Updates or Upgrades.
5. TRIAL AND BETA LICENSE
5.1. If You are a trial or beta user, You may use Bitdefender Software for evaluation or testing purposes in a non-production environment. You can receive web or email based technical support in the country where You are located and Updates, if applicable, without any guarantee or warranty of any kind. Notwithstanding anything to the contrary, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BITDEFENDER SOFTWARE USED FOR TRIAL PURPOSES OR BETA SOFTWARE IS PROVIDED TO YOU "AS IS" WITHOUT WARRANTIES OF ANY KIND.
5.2. BETA DISCLAIMER. THE BETA SOFTWARE LICENSED HEREUNDER IS BELIEVED TO CONTAIN DEFECTS AND A PRIMARY PURPOSE OF THIS BETA TESTING LICENSE IS TO OBTAIN FEEDBACK ON SOFTWARE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. YOU ARE ADVISED TO SAFEGUARD IMPORTANT DATA, TO USE CAUTION AND NOT TO RELY IN ANY WAY ON THE CORRECT FUNCTIONING OR PERFORMANCE OF THE SOFTWARE AND/OR ACCOMPANYING MATERIALS.
5.3. Your right to use Bitdefender Software ends when the Trial period ends or if You violate any term of this Agreement. Upon termination of the Trial period, You must delete or destroy all copies of Bitdefender Software and Documentation and stop using the service. Your obligations and rights under this Agreement will continue to apply after the end of the Trial period. For the avoidance of any doubt, for any trial or beta Software, Bitdefender shall have no further obligation to you in case of termination of this Agreement for breach caused by You.
6.1. The Software is and contains valuable confidential information of Bitdefender. Confidential Information means non-public technical and non-technical information relating to the Software, including, without limitation, trade secret and proprietary information, and the structure and organization of the Software. MIT Data is considered confidential.
6.2. Neither Party shall disclose any confidential and/or proprietary information belonging to the other party unless agreed in writing by the said party. Confidential information shall also include the terms and pricing under this agreement, and all information clearly identified as confidential. This obligation shall not apply to information received which: (i) is or becomes known by the recipient without an obligation to maintain its confidentiality; (ii) is or becomes generally known to the public through no act or omission on the part of the recipient; or (iii) is independently developed by the recipient without the use of confidential or proprietary information. You agrees that, in the event any person or party seeks to obtain the Confidential Information of Bitdefender and/or Bitdefender by way of involving You by any means, including demand, discovery request or court order, You shall immediately notify Bitdefender prior to disclosing the requested Confidential Information and will cooperate with Bitdefender in responding to such demand, discovery requests or court order so as to minimize the disclosure of such Confidential Information.
6.3. You shall take all necessary measures to safeguard the confidentiality of the Software or any part or any copy thereof and to prevent the unauthorized disclosure, use, copying, publication or dissemination of the same to a third party. Each Party agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents on a need to know bases and who are required to protect it against unauthorized disclosure. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement or orders submitted under this Agreement in any legal proceeding arising from or in connection with this Agreement.
6.4. Bitdefender has no obligation whatsoever, contractual or otherwise, to disclose any Confidential Information, information regarding and in connection with the (Virtual) Appliance and/or to disclose any information that is used to configure the (Virtual) Appliance and/or the sources thereof. You agree that the Virtual Appliance and MIT data may contain unique (serialisation) markers intended to prevent unauthorized copying. You agree that these markers can be used as the sole proof of unauthorized copying.
7. PERFORMANCE REPORTING
7.1. The Software and the (Virtual) Appliance will not automatically generate any reports of the performance and activities of the (Virtual) Appliance and will not automatically send such reports to Bitdefender or any third parties. Only in the event You instructed the Software or the (Virtual) Appliance to generate any reports of the performance and activities of the (Virtual) Appliance, will such reports be generated and will these be available to You for consultation or further distribution.
8. TECHNICAL SUPPORT SERVICES
8.1. Technical support for Bitdefender Solution is included for the duration of the license/subscription Term. Certain technical support features may be offered by Bitdefender through its resellers for the subscription term of the Bitdefender Solution as stated on Bitdefender website. Technical Support shall be governed by the following conditions: Any such Technical Support shall be provided without any guarantee or warranty of any kind. It is solely Your responsibility to complete a backup of all Your existing data, software and programs before receiving any Technical Support.
8.2. Standard Support. The terms and conditions of standard technical support for Bitdefender Gravityzone Enterprise are stated here: http://www.bitdefender.com/site/view/enterprise-support-policies.html
8.3. Paid Services: Professional Services: If You purchase these services, their performance will be according to the Service Level Agreement available at the following address: https://www.bitdefender.com/media/materials/legal/Service-Level-Agreement-for-Professional-Services.v1.1.pdf. Premium Technical Support Services: If You purchase these services, their performance will be according to the Enterprise Support Policy available at: https://www.bitdefender.com/site/view/enterprise-support-policies.html. MEDR Service: If You purchase these services, their performance will be according to the Terms and Conditions available at the following address: https://www.bitdefender.com/media/materials/legal/Terms_and_Conditions_for_accessing_Bitdefender_GravityZon_%20Managed_Endpoint_Detection_and_Response_Service_MEDR_v1.1.pdf
8.4. Bitdefender reserves the right to refuse, suspend or terminate any of the Technical Support in its sole discretion in case You are in breach of your obligations. The technical support policies are subject to change at Bitdefender’s discretion; however, Bitdefender will not materially reduce the level of services provided for supported programs during the period for which fees for technical support have been paid. You should review the policies published on websites prior to entering into the ordering document for the applicable services. If You intend to receive any professional services, then you need to sign with Bitdefender a separate statement of work. These terms are not applicable for Trial and Beta Solutions.
9. ELECTRONIC COMMUNICATIONS
9.1. Bitdefender may send You legal notices and other communications about the Software and Maintenance subscription services or use of the information You provide us ("Communications"). Bitdefender will send Communications via in-product notices or via email to the primary user's registered email address or will post Communications on its Sites. The legal basis for sending these communications are this contract (for the transactional communications) and the legitimate interest for marketing with the current customers (for the commercial communications
10. AUDIT RIGHTS
10.1. Audit by You. If You wish to perform an audit on the (Virtual) Appliance prior to installing and/or using the (Virtual) Appliance, You may only perform such audit after receipt of written approval from Bitdefender and provided that the audit (a) will not be performed by a company which Bitdefender considers to be a competitor or which Bitdefender considers to be unqualified to perform such an audit and (b) will be performed in accordance with the guidelines and/or terms and conditions attached to the approval of Bitdefender.
10.2. Audit by Bitdefender. Bitdefender may audit Your use of the Bitdefender Solution to verify that Your usage complies with applicable Documentation. An audit will be done upon reasonable notice and during normal business hours, but not more often than once each year unless a material discrepancy was identified during the course of a prior review. You agree to implement internal safeguards to prevent any unauthorized copying, distribution, installation, or use of, or access to, the Bitdefender Solution. You further agree to keep records sufficient to certify Your compliance with this Agreement, and, upon request of Bitdefender, provide and certify metrics and/or reports based upon such records and accounting for both numbers of copies (by product and version) and network architectures as they may reasonably relate to Your subscription and deployment of the Bitdefender Solution. If an audit reveals that You have breached any term of this EULA, then You shall reimburse all reasonable costs of conducting the audit incurred by Bitdefender, without prejudice to Bitdefender right to terminate this EULA with immediate effect.
11. WARRANTIES. DISCLAIMERS.
11.1. The Software is provided as part of the (Virtual) Appliance delivered by Bitdefender. Bitdefender warrants that Software will be provided in a professional manner consistent with industry standard. Bitdefender warrants to You that the encoding of the software program on the media on which the Bitdefender Solution is furnished will be free from defects in material and workmanship. Bitdefender does not warrant that the operation of the Software will be uninterrupted or error-free or that the Software provides a guarantee against intrusions, viruses, Trojan horses, worms, time bombs or other similar harmful or deleterious programming routines from affecting Your network or other networks. Nor does Bitdefender warrant that all security threats and vulnerabilities will be detected or that the use of the Software will render Your systems or other systems invulnerable to security breaches.
11.2. No warranty whatsoever shall apply if (i) the Product has not been used in accordance with the terms and conditions of this Agreement and the Documentation; (ii) the issue has been caused by your failure to apply Updates, Upgrades or any other action or instruction recommended by Bitdefender, (iii) the issue results from any cause outside of Bitdefender’s reasonable control. Any warranty is void if a failure of the Software and/or (Virtual) Appliance resulted from a) Your unauthorized or improper use of the Software and/or (Virtual) Appliance, b) any modification made to the Software and/or (Virtual) Appliance by You or any other third party than Bitdefender, unless authorized by Bitdefender, c) operator failure, d) malfunction of (Virtual) Appliance that has not been supplied by Bitdefender, e) problems caused by the installation on an unsupported platform, f) any functionality failure not directly related to the (Virtual) Appliance, or the Software; g) problems caused by third party products.
11.3. You are responsible for the use of the Software and/or (Virtual) Appliance, the information and/or data processed with the Software and/or (Virtual) Appliance and for the decisions that You may make by using the Software and/or (Virtual) Appliance. The use of the Software and/or (Virtual) Appliance is at Your own risk and Bitdefender assumes no liability or responsibility pertaining to Your use of the Software and/or (Virtual) Appliance. You are responsible for the correct and proper configuration and functioning of the Virtual Appliance on the virtualisation platform. This includes: a) making available sufficient resources (memory, processors, storage etc.) b) monitoring and maintaining the virtualisation software and hardware c) maintaining sufficient storage and processing power d) configuring the appropriate (network) settings, e) making reservations as to the availability of resources. Even if the correct functioning of the virtualisation platform is Your sole responsibility, any failure to comply with instructions of Bitdefender relating to the settings thereof will void any liability, warranty claim or other title to repairs or damages as brought against Bitdefender
11.4. If Bitdefender is notified in writing of a breach of warranty, Bitdefender’s entire liability and your sole remedy shall be (at Bitdefender’s option): (i) to correct, repair or replace Bitdefender Solution within a reasonable time, or (ii) to authorize a refund of the Fee following return of the Products accompanied by proof of purchase. Any replacement Products shall be warranted for the remainder of the original Warranty Period.
11.5. Bitdefender shall indemnify and keep you harmless from any claim by a third party that your use or possession of the Software in accordance with the terms and conditions of this Agreement infringes any third party patent, trademark or copyright. The foregoing obligation of Bitdefender does not apply with respect to software, services or portions or components thereof: (i) not supplied by Bitdefender; (ii) used in a manner not expressly authorized by this Agreement or the accompanying Documentation (iii) made in accordance with your specifications; (iv) modified by anyone other than Bitdefender, if the alleged infringement relates to such modification; (v) combined with other products, processes or materials where the alleged infringement would not exist but for such combination; or (vi) where you continue the allegedly” infringing activity after being notified thereof and provided with modifications that would have avoided the alleged infringement.
11.6. In the event the Software is held by a court of competent jurisdiction to constitute an infringement Bitdefender shall, at its sole option, do one of the following: (i) procure the right to continued use; (ii) modify the Software so that their use becomes non-infringing; (iii) replace the Software with substantially similar products in functionality and performance; or (iv) if none of the foregoing alternatives is reasonably available to Bitdefender, Bitdefender shall refund the pro-rata unused portion of the Software. The Parties may request indemnification under this provision, provided they: (a) give notice within ten (10) days of any claim being made or proceedings being issued against; (b) give sole control of the defense and settlement to the indemnifying party (provided any settlement relieves the indemnified party of all liability in the matter); (c) provide all available information and reasonable assistance; and (d) have not previously compromised or settled such claim.
11.7. THIS SECTION STATES BITDEFENDER’S ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT AND MISAPPROPRIATION CLAIMS.
BITDEFENDER DOES NOT WARRANT THAT BITDEFENDER SOFTWARE WILL MEET YOUR REQUIEREMENTS. BITDEFENDER DOES NOT GUARANTEE THAT THE PROGRAMS WILL PERFORM ERROR-FREE OR UNINTERRUPTED OR THAT BITDEFENDER WILL CORRECT ALL PROGRAM ERRORS. TO THE EXTENT PERMITTED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
THIS BITDEFENDER SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED OR INTENDED FOR USE IN ANY HAZARDOUS ENVIRONMENT REQUIRING FAIL-SAFE PERFORMANCE OR OPERATION. THIS BITDEFENDER SOFTWARE IS NOT FOR USE IN THE OPERATION OF AIRCRAFT NAVIGATION, NUCLEAR FACILITIES, OR COMMUNICATION SYSTEMS, WEAPONS SYSTEMS, DIRECT OR INDIRECT LIFE-SUPPORT SYSTEMS, AIR TRAFFIC CONTROL, OR ANY APPLICATION OR INSTALLATION WHERE FAILURE COULD RESULT IN DEATH, SEVERE PHYSICAL INJURY OR PROPERTY DAMAGE.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BITDEFENDER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, ENHANCEMENTS, MAINTENANCE OR SUPPORT RELATED THERETO, OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) OR SERVICES SUPPLIED BY HIM. BITDEFENDER HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOSS OF DATA, FALSE POSITIVES OR FALSE NEGATIVES, DEVICE FAILURE OR MALFUNCTION FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, ACCURACY OF DATA, ACCURACY OF INFORMATIONAL CONTENT, SYSTEM INTEGRATION, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS BY FILTERING, DISABLING, OR REMOVING SUCH THIRD PARTY’S SOFTWARE, SPYWARE, ADWARE, COOKIES, EMAILS, DOCUMENTS, ADVERTISEMENTS OR THE LIKE, WHETHER ARISING BY STATUTE, LAW, COURSE OF DEALING, CUSTOM AND PRACTICE, OR TRADE USAGE.
YOU SHALL BE SOLELY RESPONSIBLE FOR PROPER BACK-UP OF ALL DATA AND THAT YOU SHALL TAKE APPROPRIATE MEASURES TO PROTECT SUCH DATA. BITDEFENDER ASSUME NO LIABILITY OR RESPONSIBILITY WHATSOEVER IF DATA IS LOST OR CORRUPTED.
11.8. Bitdefender is acting on behalf of its partners for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.
11.9. LIMITATION OF LIABILITY. NEITHER PARTY SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, DATA, OR DATA USE. BITDEFENDER’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL BE LIMITED TO THE FEES YOU PAID BITDEFENDER FOR THE DEFICIENT BITDEFENDER SOFTWARE OR SERVICES UNDER THIS AGREEMENT AS SPECIFIED IN YOUR ORDER. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO CASE SHALL BITDEFENDER'S LIABILITY EXCEED THE PURCHASE PRICE PAID BY YOU FOR BITDEFENDER SOLUTION.
11.10. BITDEFENDER DOES NOT LIMIT OR EXCLUDE ITS LIABILITY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY GROSS NEGLIGENCE, (ii) FRAUDULENT MISREPRESENTATION, OR (iii) ANY OTHER LIABILITY TO THE EXTENT THAT SUCH LIABILITY CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW.
11.11. You shall (a) comply with all applicable laws and regulations in Your use of the Software; (b) not misuse the Software in any way; and (c) not use the Software for any purpose or in any way that might harm, infringe the rights of or cause loss to any relevant party or any other person. You shall defend, indemnify and hold Bitdefender harmless from and against any and all losses, expenses, damages, and liabilities arising from or out of any breach by You of this EULA, other laws, regulations or restrictions.
12.2. As regards personal data collected by Bitdefender Solution from your Users and the applicable data protection legislation governing this relationship, according to the EU applicable legislation on personal data (GDPR – General Data Protection Legislation), Bitdefender together with You are joint controllers.
12.3. Bitdefender acts as a data controller in relation with the personal data collected through its products and services sold to/through Business Clients only for the purposes of ensuring information and network security, including support activities for this purpose (only in specific cases, when support activities are included in the specific contract with Bitdefender). The Users also act as data controllers in relation to the personal data they might have access through the Bitdefender’s products and services for purposes of ensuring information and network security. For any other potential purposes that Business users may decide internally on their own, Business Clients and Service Providers (and their Clients) act as separate and independent data controllers, collecting personal data from another source, meaning Bitdefender`s products and services
12.4. The joint controllers will be each independently and separately responsible for the respecting the GDPR provisions, including lawful processing of personal data, informing service users about the use of their personal data, the security of personal data and ensuring service users can exercise their rights, according to the Joint Controllers Arrangement available here: https://www.bitdefender.com/media/materials/legal/Joint-Controllers-Arrangement.pdf
13.1. You shall not, directly or indirectly, export or re-export the Software to any country, person, entity or end user subject to U.S. export restrictions or other export restrictions. You shall specifically agree not to export, re-export, or download the Software nor the underlying information or technology: (a) to any country to which the U.S. or European Union has embargoed or restricted the export of goods or services or to any national of any such country; (b) to any end-user who you know or have reason to know will utilize the Software or portion thereof in the design, development or production of nuclear, chemical, or biological weapons; or (c) to any end-user who has been prohibited from participating in U.S. export transactions by any federal agency of the U.S. government. You are responsible for complying with local laws in your jurisdiction, which might impact your right to import, export or use the Software.
13.2. You shall use the Software and (Virtual) Appliance solely on hardware that is within the region where Bitdefender is authorized to sell (license) the Software based on its partnership agreement with Bitdefender. Where no further stipulation between Bitdefender and You is made in the primary contract, this region shall, for the purpose of this contract, be limited to the country where Bitdefender is based. You and/or Bitdefender will request written permission from Bitdefender before exporting (deploying) the Software or (Virtual) Appliance outside of this region, unless the export takes place between an EU member state (including EEA associated states) and the region a forenamed or another EU/EEA member state.
14.1. Bitdefender informs you that in certain programs or products it may use data collection technology to collect technical information (including suspect files), to improve the products, to provide related services, to adapt them to the latest industry trends and to prevent the unlicensed or illegal use of the product or the damages resulting from the malware products. You accept that Bitdefender may use such information as part of the services provided in relation to the product and to prevent and stop the malware programs running on your device.
14.2. By accepting this Agreement, You acknowledge and agree that the security technology used, if the case, is capable of scanning the traffic in an impersonal mode to detect the malware and to prevent the damages resulting from the malware products.
14.3. You acknowledge and accept that Bitdefender may provide updates or additions to the program or product which automatically download to your device.
14.4. Bitdefender reserves the right to collect certain information from the computer on which it is installed, depending on the modules and services You have activated in your Bitdefender Solution. Such information may pertain to potential security risks as well as to URLs of websites visited that the Bitdefender Solution and Services deems potentially fraudulent. The URLs could contain personally identifiable information that a potentially fraudulent website is attempting to obtain without Your permission. As such, You agree that certain Product modules, services and components may collect pieces of data from your systems for the purpose of evaluating and improving the ability of Bitdefender’s products to detect malicious behavior, potentially fraudulent websites and other Internet security risks. Bitdefender also employs proprietary Cloud technologies to perform scanning on certain URLs, files or emails submitted from your systems.
15. TERM OF LICENSE
15.1. For all Bitdefender Solutions, excepting Bitdefender Security for AWS, You will receive the Bitdefender Solution based on the subscription acquired and You will have certain rights to use the Bitdefender Solution during the License/Subscription Period, which shall begin on the date of Your initial installation of the Bitdefender Solution regardless of the number of copies that You are permitted to use, and shall last for the period of time set forth in the Documentation or the applicable order from the Bitdefender or its distributor or reseller from which You obtained the Bitdefender Solution. The Bitdefender Solution will automatically be deactivated at the end of the License Period, and You will not be entitled to receive any feature or content updates to the Bitdefender Solution.
15.2. For Bitdefender Security for AWS, monthly subscription, You will receive the Bitdefender Solution for as long as you pay for your subscription. If you fail to pay the monthly subscription, your account will be suspended. Bitdefender is entitled to remotely activate the functionality embedded in the (Virtual) Appliance that will cause the (Virtual) Appliance to stop functioning
15.3. For the avoidance of doubt, for Trial Licenses and Beta Solutions, Bitdefender shall have no further obligation to you beyond providing prior notice to terminate for convenience and shall have no obligation to provide notice in the case of a termination for your breach of this Agreement.
16. FORCE MAJEURE
16.1. Neither Party shall be in breach of the Agreement in the event it is unable to perform its obligations as a result of natural disaster, war, emergency conditions, labor strike, acts of terrorism, the substantial inoperability of the Internet, the inability to obtain supplies, or any other reason or condition beyond its reasonable control; provided, however, if such reasons or conditions remain in effect for a period of more than thirty (30) calendar days, either Party may terminate the Agreement affected by such force majeure following the written notice to the other Party.
17.1. If You are located in the United States or Canada, this Agreement is governed by the laws of the State of Florida, USA, with the venue in Broward County. If you are located in UK, Australia and New Zeland, this Agreement will be governed by the laws of UK laws, with the venue in Reading. If you are located in the Netherlands, Belgium, Denmark, Finland, Iceland, Norway, and Sweden, this Agreement is governed by the Dutch Laws with the venue in the Hague. If You are located in rest of Europe, Africa, Middle East and Asia, this Agreement will be governed by the laws of Romanian with the venue in the courts of Bucharest.
17.2. Nothing in this License Agreement will diminish any rights You may have under existing consumer protection legislation or other applicable laws in Your jurisdiction that may not be waived by contract. In the event of invalidity of any provision of this Agreement, the invalidity shall not affect the validity of the remaining portions of this Agreement. This Agreement describes certain legal rights. You may have other rights under the laws of Your state or country. You may also have rights with respect to the party from whom You acquired the Bitdefender Solution. This Agreement does not change Your rights or obligations under the laws of Your state or country if the laws of Your state or country do not permit it to do so.
17.3. Bitdefender reserves the right to cooperate with any legal process and any law enforcement or other government inquiry related to your use of this Bitdefender Solution and Services. This means that Bitdefender may provide documents and information relevant to a court subpoena or to a law enforcement or other government investigation. Bitdefender and Bitdefender logos are trademarks of BITDEFENDER. All other trademarks used in the product or in associated materials are the property of their respective owners. Bitdefender retains the right to assign this Agreement in its sole discretion. You may not assign this Agreement without the prior written permission of Bitdefender.
17.4. BITDEFENDER may revise these Terms at any time and the revised terms shall automatically apply to the corresponding versions of the Bitdefender Solution distributed with the revised terms. If any part of the Agreement is found void and unenforceable, it will not affect the validity of rest of the Terms, which shall remain valid and enforceable. In case of controversy or inconsistency between translations of the Agreement to other languages, the English version issued by BITDEFENDER shall prevail.
17.5. Contact BITDEFENDER, at 15 A Orhideelor Street, Orhideea Towers Building, 11th floor, District 6, Bucharest, 060071, Romania; tel +40 212 063 470; fax +40 212 641 799, e-mail address: office@Bitdefender.com.