Novermber 24, 2011. Version 4.1
In this Service Agreement, capitalized words and terms have specific meanings that are defined throughout the body of the Agreement and in the Schedules and Appendices hereto. Terms not otherwise defined herein are set forth in Schedule “I”. This Service Agreement (the “Agreement”) is between YOU and ABSOLUTE SOFTWARE and/or its Affiliates (“Absolute”). Immediately below is the name of the Absolute company that is contracting with you based on the country or region where you are located unless otherwise agreed in writing.
Asia, Australia, Canada, Mexico, Central America, South America, and the Caribbean: Your agreement is with Absolute Software Corporation, a company incorporated under the laws of the Province of British Columbia, Canada.
Europe, Middle East and Africa: Your agreement is with Absolute Software EMEA Limited, a company incorporated under the laws of the United Kingdom.
United States: Your agreement is with Absolute Software, Inc., a company incorporated under the laws of the State of Washington, USA.
- Service. Absolute will provide you with Online use of the Service, including a browser-supported interface and related data encryption, transmission, access and storage via a Monitoring Center, as well as Client Software components of the Absolute Technology, on the terms and conditions set out in this Agreement.
- Service Features. The Service is based on Absolute’s Technology and is offered in different editions, each of which contains different features. You acknowledge that (a) you are aware of the features specific to the various editions of the Service, that these features have been generally described to you and are available Online, and (b) for the purposes of this Agreement, the features of a particular edition of the Service are as described in the documentation supplied Online. If the edition of the Service you subscribed for includes a Theft Recovery feature, then you hereby agree to the terms and conditions set forth in Appendix “A” hereto. If you subscribed for an edition of the Service with a Service Guarantee, you hereby agree to the terms and conditions set forth in Appendix “B” hereto. If your Order includes Professional Services in addition to the Service, you hereby agree to the terms and conditions set forth in Appendix “C” hereto. The Appendices included by reference in this Section 2 form an integral part of this Agreement.
- License. Upon completing registration for an edition of the Service and Absolute’s acceptance of an Order pursuant to Section 10, Absolute grants to you a non-exclusive, non-transferable, limited license only to internally use such edition of the Service, during the Service Term, on the Customer Device(s) for which you have purchased such Service Term in an Order, subject to all of the terms, conditions, restrictions and other provisions of this Agreement. All rights not expressly granted to you are reserved by Absolute and, if applicable, its licensors. If the license is being granted for the purpose of an evaluation by you of the Service and/or the Absolute Technology, then your license will be valid for a maximum of sixty (60) days, unless otherwise specifically agreed in writing, and the Service may be used only for the purpose of such evaluation.
- Renewals. You agree that Absolute or its authorized resellers may contact you regarding the renewal of your Service Term and any other Services you may have purchased during the Service Term or to offer you additional Absolute service offerings made available from time to time. You hereby agree that Absolute and its authorized resellers may use your personal information for this purpose. Absolute will not sell or otherwise disclose your personal information to third parties without your consent.
- Customer and Technical Support. During the Service Term, Absolute or Authorized Third Parties will, using commercially reasonable efforts, provide customer and technical support to you. Customer and technical support is available to you in the languages and during the hours of operation expressly indicated by Absolute via Global Support.
- Owner Consents, Authorizations and Instructions. Without the need for further notification, consent or express instruction (unless otherwise expressly agreed in writing), owner hereby consents, authorizes, permits and instructs Absolute and its Authorized Third Parties to do the following:
(a) to collect data regarding Owner’s Customer Devices, including identifying characteristics such as the ESN, Universally Unique Identifier (UUID), memory identification serial number and other identifying characteristics, as well as information about its use and location, as required by the Service and the persistence thereof,
(c) to periodically automatically Update the installed Client Software on Owner’s Customer Device in order to ensure correct, full and continuing functionality of the Service and compliance with this Agreement;
(d) to remotely download and install additional Client Software onto Owner’s Customer Device in order to provide the Service; and
(e) to perform anonymized statistical analysis of access to and use of the Service for the purposes of measuring the effectiveness of the Services, optimizing performance, and ensuring compliance with this Agreement.
(f) upon Theft Recovery Activation, to utilize any and all of its theft recovery tools in order to recover the Owner’s Customer Device(s). Owner instructs Absolute and its Authorized Third Parties to utilize any and all of its theft recovery tools to the extent Absolute views it beneficial to the recovery of Owner’s Customer Device(s). Owner recognizes that these theft recovery tools include, without limitation, (i) the collection of internet protocol (IP) addresses of the Owner’s stolen Customer Device(s); (ii) collection of keystroke logs of the Owner’s stolen Customer Device(s); (iii) the uploading of files stored on the Owner’s stolen Customer Devices and any other information on Owner’s stolen Customer Device to the secure servers of Absolute and/or its Authorized Third Parties; and (iv) such additional theft recovery tools as Absolute may from time to time develop as applicable technology evolves.
- Things You Must Do. In accessing or using the Service or any part of it, you must
(a) use the Absolute Technology and the Service in accordance with the Product Documentation, Computrace Best Practices, LoJack for Laptops Best Practices, and as otherwise described Online, including providing proper authorization for the features involving destruction, retrieval and tracking of data;
(b) completely remove the Absolute Technology from a Customer Device prior to your sale or transfer of such Customer Device to another party;
(c) comply with all Applicable Laws; and
(d) promptly notify Absolute if you learn of any security breach related to the Service.
- Things You Must Not Do. In accessing or using the Service or any part of it, you must not, directly or indirectly,
(a) access the Service in respect of a Customer Device at any time other than during a valid Service Term for such Customer Device;
(b) without the express written consent of Absolute, knowingly attempt to increase the likelihood a Customer Device will be lost or stolen, including using the Service as part of any Theft Detection Program;
(c) use or access the Service (i) if you are a direct competitor of Absolute, except with Absolute’s prior written consent, or (ii) for purposes of competitive benchmarking or similar purposes;
(d) install on your Customer Device any more Client Software than is reasonably required to use the Service Term purchased by you for that particular Customer Device (including for dual-boot configurations);
(e) install the Client Software on any computing device other than a Customer Device for which you have purchased a valid Service Term;
(f) other than as expressly permitted herein, license, sublicense, sell, resell, transfer, assign, distribute, rent, lease, or otherwise commercially exploit the Service or the Absolute Technology in any way;
(g) modify, decompile, reverse assemble, reverse engineer, translate or disassemble, or make derivative works based on, any part of the Service or the Absolute Technology for any reason or purpose;
(h) create Internet links to the Service, or frame, mirror or embed any Content, on any server or wireless or Internet-based device, except through the Client Software and the Monitoring Center; or
(i) copy the Absolute Technology into a machine-readable or printed form other than as necessary in support of your use of the Service or for reasonable backup purposes.
- Transfer of License.> You may only transfer your Service Term from your Customer Devices to your other Customer Devices, and if you have a consumer edition of the Service and wish to transfer your Service Term, you must do so by providing written notification of such transfer to Absolute through Global Support, following the instructions for Service Term transfers described by Global Support and, if applicable, accurately registering and activating the transferee Customer Device’s make, model and ESN in the Customer Center.
- Orders. You may purchase license(s) to use the Service by sending an Order to Absolute, including the appropriate Absolute Affiliate in your region or country, or to an Absolute authorized reseller, but unless otherwise expressly agreed in writing, Absolute may accept or reject any Order in its sole discretion and is not bound to license to you any Service. Each such Order is incorporated into and becomes a part of this Agreement once accepted. Notwithstanding the foregoing, if an Order contains any additional terms and conditions, such terms and conditions will not apply to, become part of, or supersede this Agreement, regardless of any statement to the contrary contained therein.
- Term of Agreement. Unless earlier terminated as provided for elsewhere in this Agreement, this Agreement will be effective during the Service Term and will automatically expire immediately after the last day of the final remaining Service Term. When this Agreement terminates, each outstanding Service Term will expire automatically.
- Termination for Convenience. Either party may terminate any outstanding Service Term at any time for convenience and with or without cause immediately upon electronic notification to the other party at the last email address provided by such party. However, if Absolute terminates a Service Term for convenience, Absolute will refund a pro-rated portion of the purchase price (if any) to you to account for the unused portion of the remaining Service Term. No such refund will be payable for evaluation licenses. Nothing in this Section gives you any right to a refund from Absolute except as stated herein; your rights to refunds for other terminations are specified elsewhere in this Agreement.
- Events Causing Termination of Service Term. Except as expressly set out in this Agreement, each of the following events will cause the Service Term (but, pursuant to Section 11, not necessarily this Agreement) applicable to your Customer Device to terminate automatically without notice:
(a) the payment of a Service Guarantee to you or your designee (if applicable);
(b) if you have a consumer edition of the Service with Theft Recovery features, the Recovery of a number of Customer Devices covered by the Service that is equal to the number of years of the Service Term plus one (for example, a two year Service Term would be entitled to a maximum of three Recoveries); and
(c) your material failure to comply with the terms and conditions of this Agreement in respect of such Customer Device or Service Term;
and in each such case Absolute will not be obligated to refund to you any portion of the purchase price paid by you (if any) for the Service Term, regardless of the length of the initial or remaining Service Term purchased. If all your outstanding Service Terms are terminated then this Agreement shall terminate.
- Your Obligations on Termination. If a Service Term for your Customer Device has terminated, you will disable and remove the Agent from that Customer Device. Furthermore, If this Agreement has been terminated for any reason, you will immediately:
(a) cease using and, at Absolute’s option, immediately return to Absolute or destroy all copies of the Absolute Technology and all Content in your possession or under your control;
(b) pay all outstanding obligations to Absolute or its authorized reseller, if any; and
(c) no longer be entitled to access the Service, the Monitoring Center and, if applicable, the Customer Center, and you hereby agree to such access being disabled upon such termination.
- Suspension or Termination for Failure to Pay. Your failure to make any payment to Absolute or its authorized reseller for the Services will constitute a material breach of this Agreement, and Absolute may suspend or terminate your access to the Services if you have not remedied such non-payment within fifteen (15) days of notice to you thereof. Furthermore, Absolute’s suspension or resumption of Services will not limit or prevent Absolute from pursuing all other remedies available to it.
- Security Administrators. Certain features of the Service require that you authorize one or more Security Administrator(s) to enable and launch such features and to be given administrator level login privileges to the Customer Center. You must complete and send to Absolute the Security Authorization Form, available in Customer Center, to authorize, remove, modify, or rescind the rights of a Security Administrator, and in some cases must submit a support case regarding such de-activation Online through Global Support (and Absolute will verify its instructions, make such changes, and then notify you when this has been completed). The Security Authorization Form is available to you either by logging into your customer account Online or by having it mailed to you after you request it via telephone at the telephone numbers listed at http://www.absolute.com/support/corporate/contact.
- Training Services. If training credits are included on your Order, Absolute will provide you with any Training Services that you purchase from Absolute, at a mutually acceptable time. All Training Services must be exchanged for an available seat in a Training Services class within one (1) year from the date of purchase of the training credits relating to such Training Services, or such credits will expire and no refund will be available to you for such credits or Training Services. Training Services are only available for Absolute’s Services. Absolute will use commercially reasonable efforts when scheduling classes of Training Services to provide sufficient opportunity for you to exchange training credits for Training Services.
- Ownership and Intellectual Property Rights. Absolute, its Authorized Third Parties and their respective licensors have Intellectual Property Rights covering the Service and the Absolute Technology. You acknowledge that all right, title and interest (including all Intellectual Property Rights) in and to the Service and the Absolute Technology are the property of Absolute, its Authorized Third Parties or their respective licensors, and that the only rights you have with respect to the Service and the Absolute Technology is the right to use them in accordance with the terms of this Agreement. Except for such right as set out herein, no right, title or interest (including any Intellectual Property Rights) in or to (a) the Service or the Absolute Technology, or (b) any other property or Intellectual Property Rights of Absolute, its Authorized Third Parties or their respective licensors, is transferred to you. Additionally, you confirm that any copies of the Absolute Technology you make will contain the same proprietary notices, which appear on and in the Absolute Technology, and you agree that you will not copy any printed or other tangible materials forming part of the Absolute Technology that is software except as permitted herein. For greater clarity, notwithstanding any provision of the Agreement to the contrary, Absolute, its Authorized Third Parties, and their respective licensors own and retain all title to, ownership of, and all Intellectual Property Rights in, the Service and the Absolute Technology.
- Third Party Software. The Service may include Third Party Software. The Third Party Software is provided to you subject to this Agreement and any separate license agreements that accompany such programs. Notwithstanding Section 21 or any other provision of this Agreement, the Third Party Software is furnished to you by Absolute on an “as-is” and “as-available” basis and without any representations or warranties of any kind, express or implied. Absolute specifically disclaims any liability arising out of your installation or use of any Third Party Software.
- Confidential Information. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind but in no case with less than reasonable care. Each receiving party will limit access to the other party’s Confidential Information to those employees and consultants of the receiving party who have a need to know such information. Except as set out in this Agreement, no party grants to the other any right, title or interest (including any Intellectual Property Rights) in or to its Confidential Information. The obligations of confidentiality set out in this Section 20 will not apply in respect of uses or disclosures of Confidential Information where (a) the owner consents in writing, (b) disclosure is required to comply with any Applicable Laws or judicial order, or (c) a party can establish with documentary evidence that, other than as a result of a breach of this Agreement, the Confidential Information (i) is available in the public domain, (ii) was disclosed to it by a third party without violating confidentiality obligations, or (iii) was already known by it or was subsequently developed by it without any use of Confidential Information. Notwithstanding any of the foregoing, if the parties have executed a separate confidentiality agreement prior to the date of this Agreement, the provisions of such separate confidentiality agreement will govern to the extent of any necessary inconsistency or conflict with this Section
- Absolute Limited Warranty. Except with respect to the use by you of the Service or the Absolute Technology on an evaluation basis (in which case Absolute disclaims all representations and warranties whatsoever, whether express or implied), Absolute represents and warrants to you only that (a) Absolute owns or otherwise has the right (including all Intellectual Property Rights) to license the Service and the Absolute Technology to you under this Agreement; and (b) during the Service Term, the Absolute Technology will function substantially in accordance with the applicable Product Documentation.
- Exclusions of Warranty. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 21, AND FURTHER EXCEPT TO THE EXTENT EXPRESSLY PROVIDED BY AN APPLICABLE SERVICE GUARANTEE IN THIS AGREEMENT, YOU ACKNOWLEDGE THAT THE SERVICE AND THE ABSOLUTE TECHNOLOGY IS PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, AND ABSOLUTE, ON BEHALF OF ITSELF, ITS AFFILIATES AND ITS AUTHORIZED THIRD PARTIES, DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE AND THE ABSOLUTE TECHNOLOGY, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ABSOLUTE DOES NOT PROVIDE, AND EXPRESSLY DISCLAIMS, ANY WARRANTIES WITH RESPECT TO ITS ABILITY TO RECOVER, TO TRACK, TO LOCK, OR TO REMOTELY DELETE DATA FROM, ANY CUSTOMER DEVICE. While Absolute has made reasonable efforts to ensure that the Service and the Absolute Technology all work with certain operating systems and application software, Absolute cannot and does not check every possible combination of equipment or software available or that is subsequently installed or used by you. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE ABSOLUTE TECHNOLOGY AND THE RELATED SERVICE, OTHER THAN AS SPECIFICALLY SET FORTH IN THE SERVICE GUARANTEE AND IN THE WARRANTIES SET OUT IN SECTION 21. TO THE EXTENT THAT THE JURISDICTION IN WHICH YOU RESIDE OR TO WHICH ABSOLUTE DELIVERS THE SERVICE DOES NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, THE LIMITATIONS OR EXCLUSIONS SET OUT IN THIS SECTION 22 MAY NOT APPLY TO YOU IN SUCH A JURISDICTION AND ANY IMPLIED WARRANTIES RELATING TO THE SOFTWARE ARE LIMITED TO THIRTY (30) DAYS FROM THE COMMENCEMENT OF THE APPLICABLE SERVICE TERM. THESE IMPLIED WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS AND YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.
- Exclusive Remedies. If Absolute is in material breach of any of the representations and warranties in Section 21, subject to any applicable Service Guarantee, your exclusive remedies, and Absolute’s sole obligations to you, will be as follows:
(a) if there is a material breach of the warranty set forth in item (a) of Section 21, Absolute may, at its option and expense, (i) obtain a license permitting you to continue to use the Service or the Absolute Technology (as the case may be), (ii) replace or modify the Service or the Absolute Technology so that there is no breach, or (iii) if Absolute does not consider (i) or (ii) to be commercially feasible, terminate this Agreement with no further liability to you except for a pro-rated refund of the fees paid by you under this Agreement representing the remainder of the unused Service Terms; and
(b) if there is a material breach of the warranty set forth in item (b) of Section 21, and provided you notify Absolute of the specific non-conformance within the applicable Service Term, Absolute will, at its option and expense, (i) modify the Service or the Absolute Technology to conform to the Product Documentation, (ii) provide a reasonable workaround solution that will reasonably meet your requirements, or (iii) if Absolute does not consider either (i) or (ii) to be commercially feasible, Absolute may terminate this Agreement with no further liability to you except for a pro-rated refund of the fees paid by you under this Agreement representing the remainder of the unused Service Term.
- Your Technical Environment. You acknowledge that in order to use certain the Service, you must independently provide the Technical Environment at your own cost and expense , including without limitation Absolute Technology-compatible operating systems for all editions of the Service and the minimum Technical Environment requirements pursuant to the applicable Product Documentation. Absolute does not have any obligation to support any elements of the Technical Environment. You acknowledge that use of the Absolute Technology may require certain licenses for Technical Environment software in order for the Absolute Technology to be functional.
- Your Indemnifications of Absolute. You hereby agree to indemnify and save harmless the Absolute Entities from and against all Claims and Losses in any way incurred by any Absolute Entities:
(a) in respect of any Proceedings to which the Absolute Entity is made a party in connection with or arising out of (i) your use of the Service or any action authorized by you or your designated Security Administrator that is carried out by you or the applicable Absolute Entity or (ii) as a result of your actions, misuse of the Absolute Technology, non-compliance with the terms herein or failure to operate the Absolute Technology in accordance with the Product Documentation or Security Authorization Form;
(b) in respect of any Proceedings to which the Absolute Entity is made a party in connection with or arising out of your failure to remove the Absolute Technology from a Customer Device;
(c) in connection with or arising out of your use of the Service in violation of any Applicable Laws;
(d) arising from or in connection with any unauthorized use of the Technical Environment or failure of your Technical Environment; and
(e) in respect of any Proceedings to which the Absolute Entity is made a party in connection with or arising out of false or misleading information submitted by or on behalf of you in connection with the theft or loss of your Customer Device(s).
- Absolute’s Indemnification of You. Subject to Sections 27 and 28, and provided that you are using the then-current release or the immediately prior release of the Service and the Absolute Technology available from Absolute in accordance with the terms of this Agreement and the Product Documentation, Absolute hereby agrees to indemnify and save the Customer Indemnified Parties harmless from and against all Claims and Losses in any way incurred by a Customer Indemnified Party in respect of any Proceedings to which the Customer Indemnified Party is made a party by reason of or in connection with or arising out of any allegation that your use of the Absolute Technology as permitted by this Agreement infringes any Intellectual Property Rights that are enforceable in Canada, the United States, or the jurisdiction to which Absolute directs your Service, provided that if such Intellectual Property Rights relate to a business methods patent, this indemnity shall only apply in respect of infringements of which Absolute is actually aware at the time of the infringement.
- Absolute’s Rights on Indemnity. If legal action arises or if Absolute believes that the use of Absolute Technology is likely to be subject to legal action for which Absolute has an indemnity obligation under Section 26, Absolute may, at its option and expense, (i) obtain a license permitting you to continue to use the Service and the Absolute Technology, (ii) replace or modify the Absolute Technology so that it is no longer infringing, or (iii) if Absolute does not consider (i) or (ii) to be commercially feasible, terminate this Agreement with no further liability to you except for a pro-rated refund of the fees paid by you under this Agreement representing the remainder of the unused Service Term.
- Limitations of Indemnity. Notwithstanding Section 26, Absolute will not be required to defend or indemnify any Customer Indemnified Party to the extent that, the Claims and Losses or legal action, as the case may be arose from (a) your combination of the Service or Absolute Technology with software, services or products not supplied by Absolute, (b) your use of the Absolute Technology contrary to the Product Documentation, (c) any repair or modification to the Absolute Technology carried out by you or any third party other than an Authorized Third Party, (d) any breach by you of any provision of this Agreement, or (e) any refusal by you to install and use a non-infringing version of the Service and the Absolute Technology offered by Absolute under Sections 23 or 27.
- Notice of Legal Action. A party indemnified under the specific provisions of this Agreement (a) will give prompt written notice of any legal action to the indemnifying party, not more than thirty (30) days after its first knowledge of that legal action, whether actually initiated or threatened, (b) will give to the indemnifying party the sole control of the defence of any legal action, (c) will, at the indemnified party’s cost, give the indemnifying party any assistance that the indemnifying party may reasonably request to defend or settle any legal action, and (d) will not settle or compromise any legal action without the express prior written consent of the indemnifying party. Any indemnified party’s material failure to comply with this Section 29 will relieve the indemnifying party of its obligation to defend and indemnify the indemnified party.
- Disclaimers and Limitations of Liability. NONE OF ABSOLUTE, ITS AFFILIATES OR THE AUTHORIZED THIRD PARTIES WILL BE LIABLE UNDER THIS AGREEMENT TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL CLAIMS AND LOSSES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR COMPUTER TIME, LOSS OF BUSINESS PROFITS OR BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS) OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY WHATSOEVER (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF ABSOLUTE HAS BEEN INFORMED OF THE POSSIBILITY THEREOF AND EVEN IF ABSOLUTE could have reasonably foreseen THEM. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF SUCH DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH A CASE, ABSOLUTE’S LIABILITY TO YOU IS LIMITED TO THE AMOUNT OF SERVICE FEES ACTUALLY PAID BY YOU ATTRIBUTABLE, ON A PRO-RATED BASIS, TO THE PRECEDING TWELVE (12) MONTHS OF THE APPLICABLE SERVICE TERM(S). THE AGGREGATE LIABILITY OF ABSOLUTE, ITS AFFILIATES AND ITS AUTHORIZED THIRD PARTIES FOR ANY AND ALL DIRECT CLAIMS AND LOSSES ARISING OUT OF OR RELATED TO THIS AGREEMENT (EXCLUDING ABSOLUTE’S LIABILITY TO YOU UNDER SECTION 20) WILL NOT EXCEED THE AMOUNT OF THE SERVICE FEES ACTUALLY PAID BY YOU ATTRIBUTABLE, ON A PRO-RATED BASIS, TO THE PRECEDING TWELVE (12) MONTHS OF THE APPLICABLE SERVICE TERM(S). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ABSOLUTE EXPRESSLY DISCLAIMS ANY LIABILITY FOR ANY DAMAGE, WHETHER DIRECT OR INDIRECT, CAUSED BY YOUR LAUNCH OR USE OF A SERVICE FEATURE. BY AUTHORIZING A FEATURE OR OPERATION OF THE SERVICE, YOU ARE HEREBY RELEASING ABSOLUTE AND THE ABSOLUTE ENTITIES FROM ANY CLAIMS AND LOSSES ASSOCIATED WITH THE USE OR LAUNCH OF SUCH FEATURE (INCLUDING ANY UNSUCCESSFUL CANCELLATION OF THE LAUNCH OF A FEATURE OR OPERATION). THE PARTIES CONFIRM THAT NO AMOUNT OF FEES PAID, IF ANY, ARE ATTRIBUTABLE TO ANY EVALUATION PERIOD, AND FURTHER AGREE THAT WHEN CALCULATING THE PRO RATA AMOUNTS ATTRIBUTABLE TO A SERVICE TERM ABOVE, IT WILL BE CALCULATED BY TAKING (A) THE AGGREGATE AMOUNT PAID FOR SUCH SERVICE TERM AND MULTIPLYING IT BY (B) THE PERCENTAGE OF THE TOTAL SERVICE TERM REPRESENTED BY THE NUMBER OF APPLICABLE MONTHS FOR WHICH THE CALCULATION IS BEING MADE.
- Severability. If any term or provision of this Agreement will be found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same will not affect the other terms or provisions hereof or the whole of this Agreement, but such terms or provisions will be deemed modified to the extent necessary in the court’s opinion to render such terms or provisions enforceable, and the rights and obligations of the parties will be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth.
- Injunctive Relief. Each party acknowledges and agrees that a breach by it of the provisions of this Agreement relating to Confidential Information, Intellectual Property Rights, or restrictive obligations may result in immediate and irreparable harm to the other party for which compensation would be an inadequate remedy. Accordingly, each party acknowledges and agrees that the other party may seek, as a matter of right and without the necessity of establishing the inadequacy of monetary damages, injunctive or other equitable relief to prevent or remedy such conduct from any court of appropriate jurisdiction.
- Waiver. Either party’s failure to exercise a right available to it by reason of the other party’s breach will be taken as an isolated instance and will not be deemed to be a permanent waiver of such right.
- Force Majeure. Absolute will not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, riots, insurrections, fires, floods, storms, explosions, earthquakes, other natural disasters, outage or malfunction of telecommunications services, war, governmental action, or any similar cause that is beyond its reasonable control.
- Notice. Any notice, request, authorization, direction, form or other communication to you from Absolute or to Absolute from you under this Agreement will be given in writing and be delivered to the intended recipient by e-mail as follows: (a) in your case, to the e-mail address you specified when you installed and registered for the Service and (b) in Absolute’s case, to the contact coordinates expressly set out in the relevant Section of this Agreement or Online via Global Support or the Customer Center, and, if not so set out, to the attention of Absolute’s Legal Department at the following address: c/o Absolute Software Corporation, Suite 1600, Four Bentall Centre, 1055 Dunsmuir Street, Vancouver, BC, Canada V7X 1K8 (e-mail: LegalNotices@absolute.com, fax: 604-730-2621). Notices by email will be deemed given and received on the transmission date of the e-mail.
- Interpretation. In this Agreement, unless expressly stated otherwise or the context otherwise requires, (a) headings and captions are for convenience only and will not be deemed to explain, limit or amplify the provisions hereof, (b) a reference to a “Section” is to a numbered or lettered section of this Agreement, (c) the word “including”, when following a general statement or term, is not to be construed as limiting the general statement or term (whether or not used in connection with phrases such as “without limitation” or “but not limited to”) and the word “or”, when connecting two or more matters, will not imply an exclusive relationship between the matters, (d) a reference to a “person” or “entity” means an individual, corporation, body corporate, firm, limited liability company, partnership, syndicate, joint venture, society, association, trust or unincorporated organization or governmental authority or trustee, executor, administrator or other legal representative, including any successor to that person, (e) a word importing the masculine gender includes the feminine and neuter, a word in the singular includes the plural, a word importing a corporate entity includes an individual, and vice versa, (f) words, phrases and acronyms not otherwise defined herein that have a meaning commonly understood and accepted by persons familiar with the Internet and computing services professionals will be interpreted and understood to have that meaning herein, (g) all references to currency mean currency of the United States of America and (h) in the event of any necessary conflict or inconsistency between the terms of this Agreement and the terms of any Schedule hereto or Order, the terms of this Agreement will prevail to the extent necessary to resolve such conflict or inconsistency.
- Governing Law. This Agreement will be governed by and construed in accordance with the laws of British Columbia without reference to its principles of conflict of laws and the courts of such applicable countries or regions will have exclusive jurisdiction over disputes as described therein. In any such proceedings, each of the parties hereby knowingly and willingly waives and surrenders such party’s right to trial by jury and agrees that such litigation shall be tried by a judge sitting alone as the trier of both fact and law, in a bench trial, without a jury. The parties agree that this Agreement shall not be governed by any codification of Article 2, 2A or 2B of the Uniform Commercial Code or any reference to the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act (UCITA).
- Export Control. You will not knowingly export or re-export, directly or indirectly, any product, including software, received from Absolute or any Authorized Third Party under this Agreement or any direct product of such product to any destination to which such export or re-export is restricted or prohibited by Applicable Laws, without obtaining prior written authorization from the competent government authorities as required by those laws. Absolute, on behalf of itself and the Absolute Entities, makes no representation that the Service is appropriate or available for use in any specific country or region. You are not using and will not use any of the Absolute Technology, nor any information acquired through the use of the Service, for military or quasi-military projects, unless specifically authorized by the United States, Canadian or Australian government or the appropriate European body for such purposes. Note that Software containing encryption may be subject to additional restrictions.
- Entire Agreement. This Agreement, together with the applicable Schedules hereto, constitutes the entire agreement between us pertaining to the matters herein set forth and supersedes all prior agreements, representations, warranties, statements, promises, information, arrangements and understandings, whether oral or written, express or implied, with respect to the subject matter hereof. Neither you nor Absolute will be bound or charged with, and neither you nor Absolute has relied upon, any oral or written agreements, representations, warranties, statements, promises, information, arrangements or understandings not specifically set forth in this Agreement or explicitly referred to herein. This Agreement may not be modified or amended except pursuant to Section 41 or by written amendment signed by both parties.
- Translations. Where Absolute has provided you with a translation of the English language version of this Agreement, then you agree that the translation is provided for your convenience only and that the English language version of this Agreement will govern your relationship with Absolute. If there is any conflict, contradiction or inconsistency between the English language version of this Agreement and any translation, the English language version shall take precedence to the extent necessary to resolve it.
- Amendments. You agree that Absolute may change this Agreement at any time without notice, but if Absolute makes a material change to this Agreement, it will notify you Online at least thirty (30) days before the change takes place. You are responsible for regularly checking Online for changes to this Agreement. If you do not agree to any change, you must cancel and stop using the Service before the change takes place. If you do not stop using the Service, your continued use will be deemed to be acceptance of the change.
- Assignment; Change in Control. This Agreement may not be assigned by you without the prior written approval of Absolute, but may be assigned without your consent by Absolute to (i) an Affiliate of Absolute, (ii) an acquirer of all or substantially all of Absolute’s assets, or (iii) Absolute’s successor by merger, amalgamation, wind-up or other similar corporate reorganization. Any purported assignment in violation of this Section will be void. If there occurs any actual or proposed change in control of you that results or would result in a direct competitor of Absolute directly or indirectly owning or controlling 50% or more of you, Absolute may terminate this Agreement for cause immediately upon written notice and will have no obligation for any refund of fees in connection therewith.
- Survival. Without limiting the applicability of other terms and conditions of this Agreement, the terms of this Agreement that, by their nature, are intended to survive any purported or actual termination or expiry of this Agreement shall so survive, including Sections 2, 7(b), 11, 12, 14, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, and 31 through 43 (inclusive), and all additional terms and conditions necessary for the correct interpretation of the foregoing.
“Absolute Entities” means, collectively, Absolute, all its Affiliates, Absolute’s Authorized Third Parties, and their respective directors, officers, employees, consultants, agents, suppliers, distributors.
“Absolute Technology” means all of Absolute’s proprietary technology made available to you by Absolute in the course of providing the Service, including the Computrace® technology, LoJack for Laptops® technology, Client Software, the Agent, the Content and other online, offline or client software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information.
“Affiliate” of a party means any present or future entity that, directly or indirectly including through one or more intermediaries, controls, is controlled by or is under common control of or with such party, and for the purposes of this Agreement, such control exists where (a) securities of one entity to which are attached more than fifty per cent (50%) of the votes that may be cast to elect directors of the entity are held, other than by way of a security interest only, by or for the benefit of the other entity and the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the other entity, or (b) one entity has the ability through contract or otherwise to direct the affairs of the other entity.
“Agent” is a type of Client Software installed in the Customer Device that communicates with Absolute’s Monitoring Center to transmit data required for Absolute to perform the Service via the Customer Device’s Internet connection or direct dial modem, and includes the Computrace® Agent and LoJack for Laptops® Agent.
“Android” means the Android™ mobile technology platform provided by Google Inc.
“Applicable Laws” includes all local, state, national and foreign laws, treaties and regulations applicable to you, the place to where Absolute directs the Service, or Absolute, including those related to data privacy, international communications and the transmission or interception of technical or personal data.
“Authorized Third Parties” are those third parties explicitly authorized by Absolute.
“Claims and Losses” means any and all liabilities, actions, proceedings, claims, causes of action, demands, debts, losses, damages, charges and costs, including reasonable legal costs, any amount paid to settle any action or to satisfy a judgment and expenses of any kind and character whatsoever.
“Client Software” means any offline or client software components of the Absolute Technology, including without limitation the Agent, and all Updates and Upgrades (if agreed to be provided to you in your Orders) thereto.
“Computrace Best Practices” refers to the methods documented by Absolute Online that you must follow in order to (i) properly install the Client Software on the Customer Device, (ii) ensure that the Agent remains installed on the Customer Device, and (iii) ensure that the Customer Device is automatically communicating with the Monitoring Center on a regular basis.
“Confidential Information”, for which there is a “disclosing party” (from or on behalf of whom Confidential Information is disclosed) and a “receiving party” (to whom Confidential Information is disclosed) means any information that the receiving party knows or has reason to know is the confidential or proprietary information of the disclosing party including, without limitation, the following information: technical and business information relating to inventions or products, research and development information, production manufacturing and engineering processes, costs, profit or margin information, employee skills and salaries, finances, customers, marketing, and production and future business plans.
“Content” means the audio and visual information, documents (including the Product Documentation), software, products, services and other materials contained or made available to you by Absolute in the course of using the Service.
“Customer Device” means the unique and specific customer computing device for which you have (a) installed the Client Software on the computing device, and (b) ensured the registration of the computing device and the ESN for the computing device with Absolute, and for greater certainty a Customer Device may only be a computing or Internet-enabled device expressly supported by Absolute.
“Customer Indemnified Parties” means you and your Affiliates, directors, officers, employees, consultants and agents.
“Global Support” means the customer support options from time to time available Online by clicking on the “Support” link.
“Data Delete Operation” means an operation launched by you by which you remotely permanently delete all or some of the data, software, and possibly the operating system, from a Customer Device.
“Deliverables” means the deliverables to be delivered in accordance with a Professional Services Statement of Work or in accordance with a fixed, standard package of Professional Services.
“ESN” means the serial number electronically assigned to a Customer Device, which may include some or all of the unique physical serial number of the Customer Device.
“Intel AT” means Intel® Anti-Theft Technology, which includes a locking solution that enables locking of a device at the chip level upon activation by the end user.
“Intellectual Property Rights” means any and all (i) proprietary rights provided under patent law, copyright law, trade-mark law, design patent or industrial design law, semi-conductor chip or mask work law, or any other applicable statutory provision or otherwise arising at law or in equity anywhere in the world, including, without limitation, trade secret law, that may provide a right in works, software, source code, object code, marks, ideas, formulae, algorithms, concepts, methodologies, techniques, inventions, or know-how, or the expression or use thereof, (ii) applications, registrations, licenses, sublicenses, agreements, or any other evidence of a right in any of the foregoing, and (iii) past, present, and future causes of action, rights of recovery, claims for damage, accounting for profits, royalties, or other relief relating, referring, or pertaining to any of the foregoing.
“Locking Operation” means an operation launched by you, or automatically by the Absolute Technology or your Customer Device, by which your Customer Device is locked or “bricked”, or by which your Customer Device is frozen or access to your Customer Device is limited, encrypted or restricted, without further authentication, whether such feature works in conjunction with technology built into the Customer Device and the Absolute Technology or in conjunction with the Absolute Technology alone.
“LoJack for Laptops® Best Practices” refers to the methods documented by Absolute Online that you must follow in order to (i) properly install the Client Software on the Customer Device, (ii) ensure that the Agent remains installed on the Customer Device, and (iii) ensure that the Customer Device is automatically communicating with the Monitoring Center on a regular basis.
“Monitoring Center” means the monitoring center available Online and maintained and operated by Absolute to communicate with the Client Software.
“Official Report” means an official police report or any other form required by the law enforcement authority required to report the theft or loss of your device.
“Online” means online, as updated from time to time by Absolute, through Absolute’s website located at http://www.absolute.com and http://www.lojackforlaptops.com, as the case may be, or such other location as may be notified by Absolute to you from time to time.
“OPoP” means your original proof of purchase price (before taxes and excluding accessories and software) as it relates to the Service Guarantee.
“Order” means the initial or any subsequent subscription for the Service submitted Online or in written form to Absolute, the applicable Absolute Affiliate, original equipment manufacturer or authorized Absolute reseller for your country or region specifying, among other things, the number of Customer Devices and their Service Term, the specific edition of the Service subscribed for, the applicable fees, pricing and payment details, subject to Section 10.
“Owner” means You and “Owner’s” means Your.
“Post-Theft Data” means data generated by the Customer Device after the loss of a Customer Device and during a Theft Recovery, including data created and stored by users having possession of or access to the Customer Device after its loss and data that is accessed or modified by such users. Post-Theft Data includes, without limitation, information obtained by Absolute and its Authorized Third Parties by utilizing any and all of its theft recovery tools in order to recover the Owner’s Customer Device(s) to the extent permitted by Applicable Laws.
“Proceedings” means any actual or threatened civil, criminal or administrative action or proceedings.
“Product Documentation” means the end user manual and other documentation (including print and Online), if any, applicable to the Service you have purchased.
“Professional Services” means the services we agree to provide to you, more particularly described in a signed Statement of Work between you and Absolute or an Absolute authorized reseller, and may also include Training Services.
“Recover”, “Recovered” or “Recovery” means the Customer Device has been located and returned to you, or is in the process of being delivered to you, or is either in possession of, or in the process of being collected by or actively tracked by, law enforcement.
“Restricted Loss” means the theft or loss of a Customer Device where any of the following is true:
(a) the theft or loss was materially facilitated by your criminal acts, gross negligence or wilful misconduct when securing the Customer Device in question, or the repeated theft or loss of Customer Devices demonstrates a pattern of any such criminal, negligent or wilful activity,
(b) the law enforcement authority in the jurisdiction in which the Customer Device went missing does not consider the theft or loss to be a criminal act, or
(c) the theft or loss of your Customer Device was intentional, or was part of a Theft Detection Program, or you fail to fully complete the Theft Report form.
“Security Administrator” means a person whom you have authorized to launch a feature or operation on a Customer Device and who (i) has been previously identified as such in a Security Authorization Form, (ii) where applicable, possesses the RSA SecurID® key-chain token required to launch a feature, and (iii) you have given administrator level login privileges to the Customer Center.
“Service” means any of the specific editions of Absolute’s online computer security and tracking service, or other services identified during the ordering process, developed, operated, and maintained by Absolute, accessible Online, or ancillary online or offline products and services provided to you by Absolute (excluding Professional Services), to which you are being granted access under this Agreement.
“Service Guarantee” means a limited warranty for Absolute’s Theft Recovery Services.
“Service Term” means the period of time beginning on the date you purchased the Service and ending upon completion of such period as is indicated in the applicable Order. A Service Term cannot exceed five (5) years. If you renew the Service, the renewal Service Term will be the period of time beginning on the date you renewed the Service and ending upon completion of such period, as is indicated in the applicable Order.
“Statement of Work” means any written document dated and signed by you and Absolute that specifies the Professional Services (including the Deliverables) to be delivered by Absolute to you.
“System Problems” means problems associated with third-party products or causes or your Technical Environment or data.
“Technical Environment” means certain third party hardware, operating system and software components.
“Theft Date” means the first date on which you became aware of the loss or theft, or could reasonably be expected to discover the loss or theft, of a Customer Device.
“Theft Detection Program” means any intentional loss or investigative program or operation, instigated, orchestrated, contributed to or carried out by you with or without the assistance of law enforcement, where the purpose of such operation in whole or in part is to attract theft or loss for the purpose of identifying or apprehending thieves or other wrongdoers.
“Theft Recovery” means Absolute’s standard computer recovery services feature, as may be revised from time to time by Absolute.
“Theft Recovery Territory” means any region or country, except where:
a) Online, Absolute has indicated such region or country as being excluded, or
b) in Absolute’s sole discretion, such region or country is not a region or country in which (i) the culture, customs and actual governance include an adherence to the rule of law, (ii) there are presently governmental resources that are reasonably required to enforce the laws therein, (iii) the infrastructure supports unimpeded transmission of the data required for tracking and recovery purposes, (iv) tracking and investigative activities are not prohibited by Applicable Laws, and (v) in the case of the Customer Device moving between multiple jurisdictions, the policing bodies of both jurisdictions collaborate in the enforcement of their respective property laws.
“Theft Report” means the form provided by Absolute and available to you either by (a) logging into your applicable customer account Online, or (b) requesting the form to be mailed to you by using the contact information available through Global Support.
“Theft Report Date” means the date of actual receipt by Absolute of a fully-completed Theft Report (including details of the Official Report).
“Third Party Software” means programs owned by third parties that may be delivered or made available to you as part of the Services, including those listed as third party software Online.
“Training Services” mean training services offered by Absolute from time to time through per-seat, pre-paid sums known as “training credits”, which may be purchased from Absolute and which expire after a period of time.
“Update” means a release of the Absolute Technology that includes a feature change, minor increased functionality or minor improvements (including bug fixes) to the Absolute Technology.
“Upgrade” means a release of the Absolute Technology that includes an additional service feature or significant improvements being added to the Absolute Technology, and, typically, Upgrades will be those designated by Absolute as a change in the version number, being the number to the left of the decimal point in the Absolute Technology version number.
THEFT RECOVERY SERVICES
If your purchased Service edition includes a Theft Recovery feature, you acknowledge that Absolute relies upon law enforcement cooperation to carry out Recoveries, and that applicable law enforcement agencies may require your attendance in any criminal proceeding arising from the Theft Report. In addition, you hereby agree to the following terms and conditions which shall form part of this Agreement:
- Consent. You hereby consent, instruct, permit and authorize Absolute and its Authorized Third Parties coordinating with local law enforcement officials to recover your Customer Device, and, by filing a Theft Report in respect of the loss or theft of a Customer Device, you authorize and permit Absolute and its Authorized Third Parties to (i) in Absolute’s discretion, initiate, activate, de-activate or cancel Locking Operations, if available, in order to assist with the Theft Recovery process, (ii) access Post-Theft Data on the Customer Device solely for the purpose of performing the Theft Recovery, where any such Post-Theft Data will be stored on a secure server and will only be divulged to police investigators or official prosecutors involved in the investigation or prosecution of the criminal offence related to the loss of the Customer Device, and (iii) transfer any data gathered in the course of a Theft Recovery (including Post-Theft Data) to the applicable criminal justice system, including law enforcement personnel, prosecutors and courts, and acknowledge that such data in connection with a Theft Recovery will be made available to you only at the discretion of these criminal justice system entities.
- No Theft Recovery Outside of Territory. The Theft Recovery feature is available only in the Theft Recovery Territory. If the contact from the Customer Device to the Monitoring Center after the Theft Report Date (as set out below) originates from outside of the Theft Recovery Territory, the Theft Recovery feature is no longer available and is replaced by the Data Delete Operation or Locking Operation, and a successful launch of a Data Delete Operation or Locking Operation (of any type) or your decision not to launch a Data Delete Operation or Locking Operation fulfills any applicable Theft Recovery obligation and Service Guarantee.
- Use of Recovered Information. You acknowledge and agree that information or data recovered from the Customer Device and relevant to the Recovery of the Customer Device may be disclosed to Absolute theft recovery personnel, Authorized Third Parties or the applicable law enforcement officials without further notification or consent.
- Obligations for Theft Recovery. Upon your activation of the Theft Recovery feature in accordance with this Agreement, Absolute or its Authorized Third Parties will use commercially reasonable efforts to locate and Recover the missing Customer Device and you agree to fully cooperate with such efforts. If you have purchased a Service with a limited Theft Recovery feature, the pursuit of any Theft Recovery to the limits of that particular limited Theft Recovery feature will fulfill any applicable obligation of Absolute, including any Service Guarantee. From time to time you will be informed of the status of the effort to Recover your Customer Device through e-mail or online through the Customer Center. You further agree that Absolute will only have an obligation to actively pursue a Theft Recovery for a period of one year from the Theft Report Date (as set out below) or the date upon which you execute a Data Delete Operation or Locking Operation, whichever is earlier.
- Theft Recovery Activation. You acknowledge that Absolute’s chances of Recovery increase as the Theft Report Date gets closer to the Theft Date. Accordingly, in order to activate the Theft Recovery feature, you must as quickly as possible but in any event no later than fourteen (14) days after the Theft Date, you must
(a) report the Customer Device as missing or stolen to the law enforcement authority in the jurisdiction in which the Customer Device was missing or stolen within fourteen (14) days of the Theft Date by completing and submitting an Official Report to such authority;
(b) obtain a record or identifying number (such as the police or other file number) of the Official Report, and at the request of Absolute a copy of the Official Report; and
(c) duly complete and submit a Theft Report to Absolute, ensuring that such Theft Report contains such details of the Official Report as are required by Absolute.
- Absolute Must Receive All Materials. For the purposes of this Agreement, the date of actual receipt by Absolute of a fully-completed Theft Report (including details of the Official Report) will be considered the Theft Report Date.
- Limitations. Despite any Theft Recovery feature or Service Guarantee available to you through the Service, you acknowledge and agree that Absolute’s or any Authorized Third Party’s obligation and ability to successfully Recover any Customer Device will be substantially and materially reduced if, and Absolute provides no Service Guarantee if:
(a) the theft or loss of your Customer Device is a Restricted Loss;
(b) the Customer Device is an Android device that is not capable of supporting persistence for the edition of the Service purchased by you or on which persistence was not enabled at the time of the loss or theft. A list of devices that are capable of supporting persistence is available from Absolute or Online; or
(c) if the Customer Device is an Android device, you obtained root access to the operating system or “rooted” the Customer Device prior to the time of the loss or theft.
- Theft Recovery Preventions and Other Features. You acknowledge and agree that:
(a) Theft Recovery features may be limited or unavailable when a Locking Operation has been activated, and if you have activated a Theft Recovery feature at any time when the timer for a Locking Operation has been started, the Theft Recovery may be hindered by the expiry of such timer if the applicable Customer Device does not contact the Monitoring Center before it expires,
(b) by activating the Theft Recovery feature, you thereby authorize Absolute to reset or remove the timer from such Locking Operation, and in the event you hinder the ability of Absolute to reset or remove the timer, then all applicable obligations and Service Guarantees of Absolute will be deemed satisfied,
(c) Theft Recovery features may be limited or unavailable when a Data Delete feature has been launched or activated,
(d) Theft Recovery features may be ceased by Absolute, and all applicable obligations and Service Guarantees of Absolute will be deemed satisfied, upon the launch of the “Full Data Delete Including the Operating System” feature as described Online and in the Product Documentation,
(e) you may not transfer the Service Term in respect of a Customer Device between the period commencing on the earlier of (i) the Theft Date and (ii) 30 days before the date of theft or loss reported on a Theft Report, and ending when such Customer Device is returned to your possession or Recovered, and
(f) Recovery of every Customer Device cannot be guaranteed. Without limiting the generality of the foregoing, as Absolute and its Authorized Third Parties will only coordinate Recoveries in a Theft Recovery Territory, no guarantee or warranty is provided with respect to the operation of the Absolute Technology, or the ability to recover a computer using the Absolute Technology, if the computer is located or moved outside of the Theft Recovery Territory.
If you have purchased an edition of the Service that includes a Service Guarantee, you hereby agree to the following terms and definitions which shall form part of this Agreement:
- Service Guarantee Availability. Service Guarantees are only available in respect of specific editions of the Service; please refer to your Order to determine whether your edition of the Service includes a Service Guarantee. THIS SERVICE GUARANTEE IS VOID WHERE PROHIBITED BY LAW.
- Service Guarantee Period. The Service Guarantee Period means the period after the Theft Report Date within which Absolute guarantees that it will either Recover a Customer Device or successfully facilitate the launch of a Locking Operation or a Data Delete Operation (of any type). Your Service Guarantee Period will commence on the Theft Report Date and will end sixty (60) days after the Theft Report Date.
- Service Guarantee Territory. Service Guarantee Territory means the following regions or countries: United States of America, Canada, Australia, the United Kingdom and any other country specifically identified by Absolute Online as a Service Guarantee Territory.
- Limitations of Service Guarantees. YOU ACKNOWLEDGE AND AGREE THAT (I) ANY SERVICE GUARANTEE IS INTENDED AS A PRE-DETERMINED, PRE-AGREED ESTIMATE OF AND LIMIT ON DAMAGES PAYABLE BY ABSOLUTE IN THE CASE OF BREACH BY ABSOLUTE OF THE SPECIFIC LIMITED WARRANTIES ON THE PERFORMANCE OF CERTAIN FEATURES OF THE SERVICE AS DESCRIBED HEREIN, (II) ABSOLUTE HAS HEREBY ADVISED YOU THAT THE LIMITATION OF LIABILITY SET BY ANY SUCH SERVICE GUARANTEE WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN THE PARTIES AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE FOR THE SERVICE, AND (III) ANY SUCH SERVICE GUARANTEE IS NOT AN INSURANCE PRODUCT, AND ABSOLUTE IS IN NO WAY INSURING YOUR CUSTOMER DEVICE AGAINST LOSS OR THEFT. OTHER THAN THROUGH APPLICABLE SERVICE GUARANTEES, AND AS OTHERWISE SET FORTH IN THIS AGREEMENT, ABSOLUTE DOES NOT GUARANTEE, AND MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING, ITS PERFORMANCE OF THE SERVICE WITH RESPECT TO ANY CUSTOMER DEVICE.
- Successful Theft Recovery, Locking Operation or Data Delete Operation. If, within a Service Guarantee Period, a successful Theft Recovery, or the successful launch of a Locking Operation or Data Delete Operation (of any type) has taken place on the Customer Device in question, the applicable Service Guarantee will be deemed to have been fulfilled and you will not be eligible for a Service Guarantee Payment.
- Continued Attempts. Even if the Service Guarantee Period has expired or a Service Guarantee Payment has been paid, for a maximum of one (1) year from such expiry, Absolute may (in its sole discretion) use commercially reasonable efforts to continue to monitor and attempt Recovery of, or facilitate a successful Data Delete Operation or Locking Operation on, the stolen Customer Device.
- Claims for Service Guarantees. In order to qualify to receive any Service Guarantee Payment, in addition to meeting the conditions set forth in this Agreement that relate specifically to the type of Service Guarantee in question, you must also fully meet the following conditions:
(a) the relevant Customer Device must have an active, paid-for Service Term (at the time of its loss or theft) in respect of an edition of the Service that you have purchased which includes a Service Guarantee;
(b) the loss of the Customer Device must not have been a Restricted Loss;
(c) you must be in full compliance with your obligations under this Agreement including, without limitation, your obligation to submit a fully-completed Theft Report no later than fourteen (14) days after the Theft Date;
(d) the Customer Device must have contacted the Monitoring Center within 90 days before the Theft Date;
(e) if the Customer Device is an Android device, the Customer Device must be a device that is capable of supporting persistence for the edition of the Service purchased by you and persistence must have been enabled on the Customer Device at the time of the loss or theft. A list of devices that are capable of supporting persistence is available from Absolute or Online;
(f) if the Customer Device is an Android device, you must not have obtained root access to the operating system or “rooted” the Customer Device prior to the time of the loss or theft;
(g) you must not have transferred the Service Term containing the Theft Recovery feature to the Customer Device in question during the restricted periods set out in Section 8(e) above of Appendix “A”;
(h) the Customer Device must have been stolen or lost (as determined reasonably by Absolute) from inside of the Service Guarantee Territory,
(i) you must not have launched or executed a service or feature on your Customer Device (for example, a Data Delete Operation or a Locking Operation whether launched manually or automatically upon the expiration of a timer) that restricts or disables the ability of your Customer Device to contact the Monitoring Center;
(j) if Intel AT is activated on the Customer Device, you must log into Customer Center and elect to de-enroll or de-activate Intel AT for that Customer Device on or before submitting a Theft Report and the Customer Device must successfully de-enroll or de-activate Intel AT so that Intel AT cannot launch a Locking Operation automatically;
(k) if you have a consumer edition of the Service, you must, no later than thirty (30) days after the applicable Service Guarantee Period has ended, duly complete and submit to Absolute via fax or email a Service Guarantee Submission form, together with (A) OPoP of the stolen Customer Device (which confirms date of purchase, price, make, model and serial number); and (B) any additional information or documentation as may be reasonably requested by Absolute;
(l) if you have a corporate edition of the Service, you must, no later than thirty (30) days after the applicable Service Guarantee Period has ended, duly complete and submit to Absolute via fax or email a Service Guarantee Submission form, together with any additional information or documentation as may be reasonably requested by Absolute; and
(m) the Customer Device must not have been flagged by Absolute as Recovered at the end of the Service Guarantee Period.
- Excluded Losses. The Service Guarantee is not an insurance product. Absolute may, in its sole discretion, review your eligibility to receive Service Guarantee Payments if Absolute determines that your losses of Customer Devices, or Absolute’s payment of Service Guarantee Payments, are excessive and demonstrate a pattern of gross negligence or wilful misconduct in ensuring the security of your Customer Devices. Upon making such determination, Absolute will notify you and all outstanding losses will be Restricted Losses, and any subsequent losses will be deemed to be Restricted Losses until Absolute is satisfied, in its sole discretion, that you have implemented policies, procedures and other measures to address such gross negligence or wilful misconduct.
- Service Guarantee Payment. Always subject to the other provisions in this Agreement, then Absolute or an Authorized Third Party will pay to you the applicable “Service Guarantee Payment” to which you are entitled, if any, within thirty (30) days from receipt of the duly completed Service Guarantee Submission form, submitted in accordance with the above terms.
- Service Guarantee Amount. The amount payable by Absolute or an Authorized Third Party as a Service Guarantee Payment will be based on the Theft Report Date in relation to the Service Term and will equal a percentage of the OPoP of the Customer Device up to a maximum amount, as follows:
|Theft Report Date |
(based on year of Service Term)
|Maximum Amount |
|Percentage of OPoP ||$CAD ||$USD ||$AUD ||£GBP |
|Within the First Year ||90% ||1,000.00 ||1,000.00 ||1,000.00 ||800.00 |
|During the Second Year ||80% ||800.00 ||800.00 ||800.00 ||640.00 |
|During the Third Year ||60% ||600.00 ||600.00 ||600.00 ||480.00 |
|During the Fourth Year ||40% ||400.00 ||400.00 ||400.00 ||320.00 |
|During the Fifth Year ||20% ||200.00 ||200.00 ||200.00 ||160.00 |
- OPoP Determination. If you have a consumer edition of the Service, the actual OPoP (as set out in your original proof of purchase receipt) will be used to calculate your Service Guarantee Payment. If you have a corporate edition of the Service, the following OPoP values will be deemed: for non-Android desktop computers, Macintosh computers and laptops, US$1,000 or CAD$1,000 or AUD$1,000 or GBP£800; for non-Android tablets and netbooks, US$500 or CAD$500 or AUD$500 or GBP£400; and for Android devices, US$400 or CAD$400 or AUD$400 or GBP£320, unless you provide us with an OPoP receipt within 30 days of the end of the applicable Service Guarantee Period, in which case the actual OPoP will be used.
- Currency. The dollar amounts listed in the table above are paid out in United States Dollars if your region or country of residence is the United States, in Canadian Dollars if your region or country of residence is Canada, in Australian Dollars if your region or country of residence is Australia, and in British Sterling Pounds if your residence is in Britain. Absolute may in its sole discretion pay an equivalent amount in the currency of its choosing with respect to countries not listed in this paragraph.
- Prepaid Service Guarantee Balance. If Absolute has paid a Service Guarantee Payment in respect of a Customer Device that is later recovered within 60 days after the Service Guarantee Period for that device, Absolute may treat the amount of such Service Guarantee Payment as a prepaid Service Guarantee and deduct 100% of the amount of any prepaid Service Guarantee balance from any future Service Guarantee Payment payable by Absolute to you (whether or not, for greater certainty, for that particular Customer Device). You may find out your current prepaid Service Guarantee balance in Customer Center or Global Support.
In addition to the Service, Absolute may agree to provide you Professional Services, as fixed packages of Professional Services available for purchase via an authorized Absolute reseller. The following terms and conditions will apply to any Professional Services pursuant to a fully executed Statement of Work, except as otherwise agreed by the parties in writing:
- Fees. You will pay to Absolute any related Professional Services fees within 30 days after the date of Absolute’s invoice, unless otherwise specified in the Statement of Work. Any other payment terms in the Statement of Work will also apply.
- Expenses. You will reimburse Absolute for reasonable expenses incurred in performing the Professional Services, including travel and accommodation costs, long distance telecommunications costs, courier fees, reproduction costs, and other reasonable out-of-pocket costs. At your request, Absolute will give you copies of receipts or other customary expense documentation for expenses incurred.
- Overdue Payments. Any overdue payment relating to Professional Services will bear interest at a rate of one and one-half percent (1-1/2%) per month, or nineteen and fifty-six one hundredths (19.56%) per annum, on the portion thereof that is overdue. If such interest rate is prohibited by Applicable Laws, the overdue payment shall bear interest at the highest interest rate permitted by Applicable Laws.
- Taxes. Professional Services fees do not include any taxes, and you agree to pay any sales, use, value added or other taxes or import duties (other than Absolute’s corporate income taxes) based on or due as a result of any amounts paid to us under this Agreement. All fees will be paid in the currency of the country or region in which the Professional Services are being performed unless otherwise specified in a Statement of Work.
- Start-Up Costs and Ramp-Down Costs. Unless otherwise set forth in a Statement of Work, if you stop or postpone the projects set forth in a Statement of Work you will pay for all Professional Services rendered up to the stop or postponement date and will pay for any start up costs associated with re-activating resources to complete the subject Statement of Work and any ramp-down costs associated with removing resources from the subject Statement of Work.
- Tools and Place of Work. You will provide all supplies, facilities, materials and other things which are required to perform the Professional Services, except for those things which Absolute is required to supply as set out in the Statement of Work. You will also provide us with any access to your premises, facilities and systems which we require to perform the Professional Services.
- Changes. No changes will be made to the Professional Services, the Deliverables or the Statement of Work except by a written amendment signed by you and Absolute. Any changes to the Professional Services, the Deliverables or the Statement of Work may delay completion of the Professional Services and/or increase the related fees.
- Acceptance. Unless otherwise specified in a Statement of Work,
(a) following receipt of each Deliverable, you will have ten (10) days (the “Acceptance Period”) to perform acceptance testing of that Deliverable in accordance with the standards and procedures set out in the Statement of Work,
(b) if the Deliverable does not pass the acceptance test, you must give Absolute written notice rejecting the Deliverable within the Acceptance Period,
(c) if you do not give Absolute written notice rejecting any Deliverable by the end of the Acceptance Period, or if you deliver written notice accepting the Deliverable, such Deliverable will be deemed accepted on that date,
(d) if you give Absolute written notice rejecting any Deliverable within the Acceptance Period, then within 30 days after receipt of your notice, Absolute will make any reasonable corrections or changes and resubmit the Deliverable to you for further acceptance testing and you will cooperate with Absolute to isolate, identify and resolve any problems in the Deliverables,
(e) upon your receipt of the corrected Deliverable, the procedure outlined in this Section until the Deliverable is accepted, subject to the remaining provisions of this Section,
(f) if Absolute reasonably determines that the inability of any Deliverable to pass acceptance testing is due to System Problems and not to any material defect in that Deliverable, Absolute and you will jointly attempt to identify the source of the System Problems and possible workarounds or solutions and, in addition to the fees and expenses for the Professional Services, you will pay Absolute for any extra work related to the System Problems at its then-current hourly rates plus disbursements, taxes and all related costs and expenses, and
(g) notwithstanding the foregoing, Deliverables in the nature of training services are deemed accepted upon delivery.
- Intellectual Property. Unless otherwise set out in a Statement of Work,
(a) Professional Services provided by Absolute to you under this Agreement are not performed on a “work for hire” basis and therefore any resulting work product (including Deliverables) will be considered Absolute Technology in which your only interest is a license to use the Deliverables in conjunction with the Service during an applicable Service Term,
(b) for greater certainty, Absolute owns and retains all title to, ownership of, and all right, title and interest (including Intellectual Property Rights) in or to any Deliverable on the same basis as it does with respect to the Service and the Absolute Technology as described in Section 18.
(c) If it is at any time determined that you own any right, title or interest (including any Intellectual Property Rights) in or to any Deliverable (other than the right to use it under the license granted by this Agreement), you will hold that right, title or interest in trust for Absolute and will, at our cost, transfer it to us at our request, and you will also waive any non-transferable Intellectual Property Rights such as moral rights.
- Relationship. In providing any Professional Services and Deliverables, Absolute is acting as an independent contractor and not as your agent, partner, or joint venturer for any purpose; neither you nor we will have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other.
- Non-Hire. You acknowledge that, in performing Professional Services, Absolute would be providing you with access to its Professional Services staff for a period of time, and that every member of such staff is a valuable resource to Absolute. Accordingly, you agree not to employ or solicit employment of any person who is Absolute’s employee or an employee of any of its Authorized Third Parties without our prior written consent, unless the person in question has ceased to be employed by Absolute or its Authorized Third Party for a period of 90 days.
- Professional Services Disclaimer. ALTHOUGH ABSOLUTE’S PROFESSIONAL SERVICES MAY INCLUDE INSTALLATION AND CONFIGURATION OF ITS CLIENT SOFTWARE ON YOUR CUSTOMER DEVICES, YOU AGREE THAT YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR THE MAINTENANCE, CONTROL, OPERATION AND SECURITY OF YOUR NETWORK SYSTEMS, INCLUDING THE RESPONSIBILITY OF MONITORING AND MAINTAINING THE CLIENT SOFTWARE ON YOUR CUSTOMER DEVICES TO ENSURE THAT IT AND THEY CONTINUE TO FUNCTION PROPERLY. YOU ALSO ACKNOWLEDGE THAT THE INTERNET IS NOT IN ITSELF A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF YOUR SECURITY.