Expert Installation and Setup Services Agreement

Document created by jgolomb Employee on Oct 15, 2019Last modified by jgolomb Employee on Nov 1, 2019
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Scope of Services

After purchase, we will provide the following services:

  1. Installation and Activation of Malwarebytes Premium – Your Malwarebytes Installation Specialist (MIS) will contact you in about 24 hours of purchase to help install and activate Malwarebytes Premium on 1 device (Windows or Mac) using remote connection software.
  2. Guided Tour of Malwarebytes Premium – After installation, your Malwarebytes Installation Specialist (MIS) will perform a walkthrough of Malwarebytes Premium providing guidance on the following areas:
    • Overview of the Dashboard, Scan, Quarantine, Reports, and Settings;
    • Configuration and Settings Best Practices;
    • How to utilize My Account; and
    • Answer questions you have about the product or configuration options.

 

COMPLETE AGREEMENT AND TERMS AND CONDITIONS

This Service Agreement (the “Agreement”) constitutes the entire agreement between the parties, superseding all prior understandings, writings, proposals, representations or communications, oral or written, between the parties with respect to the Services. The terms and conditions are an integral part of this Agreement. This Agreement is effective on the date of acceptance by Company (the “Effective Date”).

 

TERMS AND CONDITIONS

1. SERVICES. Malwarebytes (the “Company”) agrees to provide you (“You”) with the services described above in the Scope of Services (the “Services”), subject in all cases to these Terms and Conditions. “Malwarebytes” means: (a) if you purchased the Services in the United States or Canada, Malwarebytes Inc., a Delaware corporation, or (b) if you acquired the Services in any other country, Malwarebytes Limited, a company incorporated in Ireland.


2. YOUR RESPONSIBILITES. You hereby authorize and agree to allow the Company to remote into your device (Windows or Mac), which is compatible with Malwarebytes Premium, to complete the above Services.


3. FEES AND EXPENSES. In exchange for the Services, You will pay Company the fees as stated on the checkout page. (the “Fees”). Such Fees shall be due and payable at the time of checkout prior to the Services being provided. You shall be responsible for any taxes, customs, duties, fees or other charges assessed or imposed by any governmental authority associated with your purchase of the Services (“Taxes”). You shall be responsible for all applicable Taxes other than general taxes imposed on Company’s income.


4. OUT OF SCOPE. Services that are not explicitly specified in the Scope of Services above are out of scope.


5. SERVICE LIMITATIONS. The Service does not include, nor will Company be obligated to provide, services required as a result of: (a) Company’s products in a configuration or on a system that does not meet Company’s minimum standards for such Company products, (b) as set forth in the applicable documentation; or (c) any errors or defects in third party software or hardware not provided by Company.


6. TERM. If none of the Services under this Agreement have been performed during the 60 days after purchase following the Effective Date, this Agreement will terminate, and Company will have no further obligations with respect to this agreement. You may terminate the Agreement for convenience within 60 days, in such event the Fees for the Services shall be refunded in full. After such 60 day period, the Fees for all Services are non-refundable.


7. LIMITED WARRANTY. Services provided by Company pursuant to this Agreement will be performed in a professional and workmanlike manner in accordance with industry standards. Company’s ability to successfully perform the Services is dependent upon Your provision of access to a compatible device and participation in the process. If through no fault or delay of Yours the Services do not conform to the foregoing warranty, and You notify Company within thirty (30) days of delivery of the Services, Your sole and exclusive remedy, and the Company’s sole and exclusive obligation shall be, for the Company to re-perform the non-conforming portions of the Services. Other than the above warranty the Services of Company are provided “AS IS” without warranties of any kind, either express, implied, statutory or otherwise. THIS SECTION SETS FORTH THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES RELATED TO THE SERVICES UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND AND NATURE REGARDING THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, THAT THE SERVICES WILL MEET YOUR REQUIRMENTS OR ANY DESIRED RESULTS, THAT THE SERVICES WILL BE PROVIDED WITHOUTH INTERUPTION OR DELAY, OR THAT THE SERVICES WILL BE WITHOUT ERRORS OR INNACCURACIES.


8. EXCLUSION OF CONSEQUENTIAL AND RELATED DAMAGES. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR THE PERFORMANCE OR BREACH THEREOF, FOR ANY LOST PROFITS, REVENUES, GOODWILL, DATA, OR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES OR SUMS PAID BY YOU TO THIRD PARTIES, WHETHER AN ACTION IS BASED ON CONTRACT, TORT, PRINCIPLES OF, WARRANTY, NEGLIGENCE, BREACH OF ANY STATUTORY DUTY, PRICIPLES OF INDEMNITY OR CONTRIBUTION AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL COMPANY BE RESPONSIBLE FOR ANY FACTORS AFFECTING PERFORMANCE UNDER THIS AGREEMENT, WHICH ARE BEYOND ITS CONTROL INCLUDING, BUT NOT LIMITED TO, ANY FAILURE, DISRUPTION, DOWNTIME, INTERUPTION OF SERVICE, DELAY, INACCURACIES, OR OTHER NONPERFORMANCE IN CONNECTION WITH THE SERVICES CONNTEMPLATED BY THIS AGREEMENT. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY ACTIONS, OR INACTIONS, OF THIRD-PARTY SERVICE PROVIDERS. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.


9. LIMITATION OF LIABILITY. IN NO EVENT SHALL THE AGGREGATE LIABILITY (EVEN IF ARISING UNDER MULTIPLE CLAIMS OR THEORIES) OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER THE “FEES AND EXPENSES” SECTION ABOVE.


10. GOVERNING LAW AND VENUE. The law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where You purchased the Services as follows: (a) if You purchased the Services in the United States or Canada, all disputes shall be governed under California, without regard to or application of conflict of laws rules or principles, with the exclusive venue being arbitration in Santa Clara County or (b) if you acquired the Services in any other country, all disputes shall be governed under the laws of England and Wales, without regard to or application of conflict of laws rules or principles, with the exclusive venue being arbitration in London.


11. AGREEMENT TO ARBITRATE.


11.1 You and Company agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right:  to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an "IP Protection Action"). Without limiting the preceding sentence, You will also have the right to litigate any other Dispute if You provide Company with written notice of Your desire to do so by email to legal@malwarebytes.com within 30 days following the date You first purchase the Services (such notice, an "Arbitration Opt-out Notice"). If You don't provide Company with an Arbitration Opt-out Notice within the 30 day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Company with an Arbitration Opt-out Notice, will be  if You purchased the Services in the United States or Canada, will be the state and federal courts located in the Northern District of California, or (ii) if You acquired the Services in any other country, the courts located in London, England, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless You timely provide Company with an Arbitration Opt-out Notice, You acknowledge and agree that You and Company are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both You and Company otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Section will be deemed void. Except as provided in the preceding sentence, this Section will survive any termination of this Agreement.


11.2 Arbitration Rules. For Services purchased in the United States or Canada, the arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Section. (The AAA Rules are available at www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
For Services purchased in any other country, the arbitration will be administered by the London Court of International Arbitration ("LCIA") in accordance with the LCIA Rules (the “LCIA Rules”), which LCIA are deemed to be incorporated by reference into this clause.


11.3 Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules or LCIA Rules as applicable. (The AAA provides a general Demand for Arbitration and a separate Demand for Arbitration for California residents). The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA's or LCIA’s, as applicable, roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA or LCIA, as applicable, will appoint the arbitrator in accordance with the its rules.


11.4 Arbitration Location and Procedure. If Your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that You and Company submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules or LCIA Rules as applicable. Subject to such rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.


11.5 Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules or LCIA Rules as applicable. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award of damages must be consistent with the terms of Sections 8 (“Exclusion of Consequential and Related Damages) & 9 ("Limitation of Liability") as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If You prevail in arbitration You will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. Company will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.


11.5 Fees. Your responsibility to pay any filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules or LCIA Rules as applicable. However, if Your claim for damages does not exceed $75,000, Company will pay all such fees unless the arbitrator finds that either the substance of Your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).


12. GENERAL LEGAL. This Agreement may only be modified by a written instrument executed by You and an authorized representative of Company. Neither You nor Company will be bound by any oral agreement or representation irrespective of whom or when made. All notices must be in writing, which may include email, and all notices and payments will be sent to the recipient at its respective address shown on the applicable ordering document. Notices will be effective upon receipt. Waiver of either party’s breach of any provision of this Agreement will not constitute a waiver of any other breach. Company may elect to continue performance notwithstanding such breach by You, but such performance will not constitute a waiver of such breach nor otherwise limit Company’s remedies. If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited. Notwithstanding the above, it is the intention of the parties that this Agreement will be enforced to the fullest possible extent, regardless of any partial invalidity of unenforceability. This Agreement is not assignable, except that Company may assign this Agreement in connection with a sale of the company or substantially all its assets. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors.
Any headings in this Agreement are for convenience of reference only and will not constitute a part of this Agreement. This Agreement will not be construed more strictly against Company merely by virtue of the fact that the same has been prepared by Company or its counsel, it being recognized that You have thoroughly read and reviewed the terms and provisions of this Agreement. The parties agree to execute such other documents as may be reasonably necessary to carry out the intent and purpose of this Agreement.

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