You are entitled to:
A. use Privacy Guard PLUS on or in conjunction with up to (i) the number of computers specified by your order for Privacy Guard PLUS, or (ii) in the case of software purchased on a CD or other physical medium, the number specified on Privacy Guard PLUS package, or (iii) if you received Privacy Guard PLUS in combination with other hardware or software, solely in conjunction with such other hardware or software; The Licensed Software “Privacy Guard PLUS” was created in cooperation with Smart PC Solutions, Inc. and Avanquest Software SAS.
B. transfer Privacy Guard PLUS on a permanent basis to another person or entity, provided that you first notify SAFECARE SOFTWARE of your intention in writing and that you retain no copies of the Software and the transferee agrees to the terms of this license.
8.Disclaimer of Damages
EXCEPT AS EXPRESSLY PROVIDED BY SECTION 5 OF THIS AGREEMENT, SAFECARE SOFTWARE DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE, MEDIA AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTY OF NON-INFRINGEMENT. SAFECARE SOFTWARE DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. Some jurisdictions do not allow limitations on an implied warranty, so the above limitations may not apply to you. You may have other rights that vary from jurisdiction to jurisdiction.
9. Limitation of Liability
9.1. SOME STATES AND COUNTRIES, INCLUDING MEMBER COUNTRIES OF THE EUROPEAN ECONOMIC AREA, DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE BELOW LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, AND NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY:
(A) TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL SAFECARE SOFTWARE OR ITS LICENSORS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE PRODUCT OR IN RELIANCE UPON ANY SERVICES, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF SAFECARE SOFTWARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(B) IN NO EVENT WILL SAFECARE SOFTWARE OR ITS LICENSORS HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU WHATSOEVER FOR ANY DEFECT, MALFUNCTION, DAMAGE, OR LOSS, RESULTING FROM YOUR INSTALLATION OR USE OF THIRD PARTY SOFTWARE, HARDWARE, EQUIPMENT, PERIPHERALS, OR OTHER PRODUCTS, INCLUDING BUT NOT LIMITED TO, CONTENT UPDATES, DRIVERS OR OTHER FILES RECEIVED FROM ANY THIRD PARTY (COLLECTIVELY, “THIRD PARTY PRODUCTS”), RECEIVED IN CONNECTION WITH YOUR (OR ANY THIRD PARTY’S) USE OF THE SOFTWARE. ALL WARRANTIES AND OBLIGATIONS OF THIRD PARTIES IN CONNECTION WITH THIRD PARTY PRODUCTS ARE OUTSIDE THE SCOPE OF THIS AGREEMENT AND MUST BE ADDRESSED UNDER A SEPARATE AGREEMENT BETWEEN YOU AND SUCH THIRD PARTIES.
(C) IN NO EVENT WILL SAFECARE SOFTWARE’s OR ITS LICENSORS’ TOTAL LIABILITY FOR ALL DAMAGES EXCEED COST OF THE SOFTWARE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE PRODUCT FAILS OF ITS ESSENTIAL PURPOSE.
11. ARBITRATION AND WAIVER OF CLASS ACTION CLAIMS. YOU UNDERSTAND AND AGREE THAT ALL CLAIMS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND COMPANY, INCLUDING, WITHOUT LIMITATION, TORT AND CONTRACT CLAIMS, CLAIMS BASED UPON ANY FEDERAL, STATE OR LOCAL STATUTE, LAW, ORDER, ORDINANCE OR REGULATION, AND THE ISSUE OF ARBITRABILITY, SHALL BE RESOLVED BY THE FINAL AND BINDING ARBITRATION PROCEDURES SET BELOW. THE PARTIES ACKNOWLEDGE AND AGREE THAT ANY SUCH CLAIMS SHALL BE BROUGHT SOLELY IN THE PARTY’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE PROCEEDING, OR PRIVATE ATTORNEY GENERAL CAPACITY. THE PARTIES FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THE PARTIES VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL. ANY CONTROVERSY CONCERNING WHETHER A DISPUTE IS ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR AND NOT BY THE COURT. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY A CALIFORNIA STATE OR FEDERAL COURT HAVING JURISDICTION THEREOF. THIS ARBITRATION CONTRACT IS MADE PURSUANT TO A TRANSACTION IN INTERSTATE COMMERCE AND ITS INTERPRETATION, APPLICATION, ENFORCEMENT AND PROCEEDINGS HEREUNDER SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT (“FAA”).
The following procedures shall apply: 1) Any party that intends to make a claim shall first notify the opposing party in writing of such intention and shall describe in such notice, with reasonable particularity, the nature and basis of such claim, and the total amount of the claim. Within thirty (30) days of receipt of such notice, the party receiving notice of a claim shall provide a written response which, with reasonable particularity, sets forth its position concerning the claim. If the parties are unable to resolve the dispute arising from the claim by good faith negotiations to be conducted within the thirty (30)-day period following the written response, either of them may initiate binding arbitration pursuant to the terms and conditions set forth below. 2) In the event a party elects to proceed with binding arbitration, it shall provide written notice thereof to the other party by registered or certified mail. The arbitration shall take place in San Jose, Costa Rica, but may proceed telephonically in the event the total amount of the claim does not exceed $2,500 U.S. dollars (if the claimant so chooses). 3) Separate and apart from the agreement to arbitrate set forth above, the parties hereby independently waive any right to bring or participate in any class action in any way related to, or arising from, this agreement.
You shall be responsible for the payment of all sales, use and similar taxes relating to the license of the Software.
14. Export Control
The software and the underlying information and technology may not be downloaded, accessed or otherwise exported or re-exported except as authorized by Costa Rica laws and the laws of the jurisdiction in which the Software was obtained. In particular, the Software may not be exported or re-exported (i) into (or to a national or resident of) Cuba, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders. By downloading, accessing or using the Software, you agree to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.