Norton™ Shopping Guarantee
October 25, 2017
Norton Shopping Guarantee (referred to herein as "NSG," the "NSG Service" or the "Service") is designed for online merchants to increase conversion, average order value, repeat buyers and customer satisfaction.
In this Service Description, merchants using NSG are each referred to as "Merchant," "Customer," or "You."
This Service Description, with any attachments included by reference, is part of any agreement which incorporates this Service Description by reference (collectively, the "Agreement"), for those Services which are described in this Service Description and are provided by Symantec ("Symantec," or "We,"). If terms and conditions accompany this Service Description, such terms and conditions apply to Customer unless Customer has an applicable signed Agreement.
TECHNICAL/BUSINESS FUNCTIONALITY AND CAPABILITIES
- Merchant Identity Verification
Symantec will verify information given by Merchant before giving approval or re-affirming a status of good standing. Information may be requested directly or indirectly, including, but not limited to, obtaining information from consumer or credit reporting agencies. Merchant must be authorized to do business in accordance with applicable law. Symantec may perform periodic checks to verify that the Merchant information remains accurate. Your failure to respond to any reasonable request for information may result in suspension or termination of this Service.
Approved Merchants may create a Merchant account, protected by a unique username and password, permitting access to the Merchant Dashboard. The Merchant Dashboard includes information relating to Merchant's use of the NSG Service, contact information and notices to Merchant.
- Eligible Products and Services
The NSG Service is available for an online transaction involving the sale of a tangible good (e.g., items that can be physically shipped) or an explicitly defined service (e.g., airline tickets, travel packages, or subscription based services). Items that must be downloaded from Merchant's computer to Buyer's computer, such as digital content, as the intended means of delivery, are also eligible. The NSG Service is not available for any transaction involving pornography, gambling, real estate, or other transactions regulated by a specific legal process, and Symantec reserves the right to refuse to offer the NSG Service to certain Merchants or transactions.
- Providing the Norton Shopping Guarantee Benefits
Symantec will provide the Norton Shopping Guarantee to Buyer, including the unique Guarantee Number and instructions for making a claim for a benefit, if the Buyer completes an online transaction covered by the NSG Service.
- Norton Shopping Guarantee Seal
Merchants may display and use the Norton Shopping Guarantee seal on the registered Web site(s) under the terms of this Agreement. The seal is intended to alert visitors and Buyers of the availability of the NSG Service with their completed transactions.
- Use of the Seal and Graphical Elements
- The Norton Shopping Guarantee graphical elements are posted electronically and will link to enable visitors and Buyers to have access to the Norton Shopping Guarantee Verification Page. You must allow and enable display of these graphical elements on Your registered Web site(s). Symantec may change the appearance of the graphical elements from time to time, and will give You notice by email to Your designated contact and by posting the update on the Norton Shopping Guarantee Web site.
- You may not modify the graphical elements in any way without express permission from Symantec.
- You agree that Symantec and its licensors are, and will remain, the sole and exclusive owner of the graphical elements.
- You must immediately cease use or display of any seal or graphical elements provided under this Agreement upon suspension or termination of this Agreement.
- Dispute Resolution Process
All Buyer claims will be resolved using NSG's Dispute Resolution Process. Buyers will report a Problem by beginning the Dispute Resolution Process found on the Norton Shopping Guarantee Web site. To the extent legally permitted, Buyers will be compelled to use the Dispute Resolution Process. Merchant must use good faith efforts to investigate and respond to the Problem, and will resolve the Problem, if reasonably possible. Merchant will respond no later than three (3) business days in writing with full and complete information responding to such Buyer's Problem or Merchant will be deemed at fault. If Merchant and Buyer do not reach a solution within ninety (90) days of Symantec's receipt of the File a Benefit Claim Form, then the Dispute Resolution Process will end, and such Buyer may take action outside of the NSG Service.
Symantec can only perform the Service if Merchant provides required information or performs required actions. If Merchant does not provide/perform per the following responsibilities, Symantec's performance of the Service may be delayed, impaired or prevented, as noted below.
- Merchant must provide information required by Symantec, and install Norton Shopping Guarantee on Your Website according to Symantec's instructions.
- You must provide all reasonably requested information about You and Your business, or the Norton Shopping Guarantee may not work as intended. You must notify Symantec of any changes to Your personal or business information, including, but not limited to, Your current name and address, telephone number, email address, company name, credit card number and billing address, along with the expiration date.
- Merchant must have the authority to bind the applicable business entity to this Agreement.
- Merchant must provide accurate and honest information about You and Your company upon reasonable request.
- Merchant must not deny any Buyer the right to use the Norton Shopping Guarantee Dispute Resolution Process in the event that Buyer has a complaint about a transaction.
- Merchant must agree: (A) that all statements made and answers given Us are truthful, accurate and complete in all respects, and that We can rely upon Your statements and answers to provide You the NSG Service; and (B) not to contest any benefit decision that We make in connection with a Problem, and to assign to Us, upon request, any rights You may have to recover from any third parties to the extent We have paid any benefits.
- Merchant must never impersonate any other person or entity, misrepresent its affiliation with another person or entity, or otherwise conceal its true identity from Symantec.
- Merchant may not share or transfer the Merchant Dashboard username or password.
- Merchant may not use Norton Shopping Guarantee materials in any manner not intended and approved by Symantec.
- Merchant must not use or display any Symantec trademark or other intellectual property in a manner that is misleading, defamatory, infringing, libelous, disparaging, obscene or otherwise objectionable to Symantec or our licensors, or in a manner that impairs or negatively impacts Symantec's rights. Symantec reserve the right to terminate or modify Your license to reproduce and display the graphical elements at any time and to take action against any use of Symantec's brand that (A) does not conform to this Agreement, (B) infringes any intellectual property or other right, or (C) in Symantec's judgment, violates any applicable law. You agree not to register or attempt to register any Symantec intellectual property in any jurisdiction.
- Merchant agrees (A) not to do anything inconsistent with Symantec's ownership of the seal or graphical elements, (B) not to use the graphical elements to create a separate and distinct impression for any other service mark or trademark, (C) not to take any action that changes or reduces Symantec's rights, and that (D) all goodwill associated with the use of the NSG Service will be solely for Symantec's benefit.
- Merchant will comply with all applicable laws relating to the collection and transmission of information from visitors to Merchant's Web site and Buyers. Merchant agrees to post a privacy notice disclosing that third party service providers may collect such information to provide services on its behalf, provide appropriate notice to visitors and Buyers, and obtain any required consents, under applicable data privacy laws.
Assistance and Technical Support
For technical support, refer to NSG's contact information listed at: https://nortonshoppingguarantee.symantec.com/contact_us.html.
- You may not disclose the results of any benchmark tests or other tests connected with the Service to any third party without Symantec's prior written consent.
- Except as otherwise specified in the Service Description, the Service may use open source and other third party materials that are subject to a separate license. Please see the applicable Third Party Notice, if applicable, at https://www.symantec.com/about/profile/policies/eulas/.
- Changes to the Service and Service Description: Symantec may update the Service at any time in order to maintain the effectiveness of the Service. Notwithstanding anything to the contrary in the Agreement, Symantec may revise this Service Description at any time for the following reasons: (A) it becomes necessary due to applicable laws or industry standards, including, without limitation, any change of the foregoing; (B) it becomes necessary for technological reasons when any change is made without materially degrading the NSG Service functionality; (C) it becomes necessary to maintain the operation of the NSG Service when any change is made without materially degrading the Service functionality; or (D) any change is in favor of Merchants. Any such change will be binding and effective thirty (30) days after publication of the change on Symantec's website, or upon notification to Merchants by email. If any Merchant does not agree with the change, it may terminate the Service at any time by notifying Symantec and requesting a partial refund of fees paid, prorated from the date of termination to the end of the NSG Service term. By continuing to use the Service after such change becomes binding and effective, Merchant agrees to abide by and be bound thereby.
- Suspension and Termination of Merchant Account: Symantec reserves the right to suspend a Merchant's use of the NSG Service if the Merchant is in violation of any Merchant obligation under this Agreement. Symantec may suspend Merchant's use of the NSG Service at any time and without notice, if: (A) You fail to maintain current information, including your contact information; (B) You fail or refuse to display required graphical elements and related promotional information, as supplied, on all appropriate Web pages; (C) You fail to follow the Dispute Resolution Process; or (D) Symantec receives complaints about Your unfair, unethical, or deceptive selling practices or standards, or about Your failure to adhere to Your own terms of sale. Upon suspending Your account, Symantec will send You an email notice of suspension, which also serves as a notice of breach. If such issue remains uncorrected before the cure period is over as specified in the Agreement, the Agreement will be terminated.
- Automatic Credit or Debit Card Payment: If Merchant authorizes an automatic credit or debit card charge for standard monthly fees due and owning, such authorization will extend to the collection of reasonable fees in connection with any electronic debit returned for any reason. We will keep the credit card information collected from You for processing service fees in a manner consistent with the current version of the PCI-DSS standards.
- Term: NSG's service period begins on the date that You provide (or are deemed to have provided) electronic or physical consent to the terms of this Agreement. Unless earlier terminated in accordance with the terms hereof, this Agreement will continue until the term of the NSG Service purchased hereunder expires.
- Automatic Extension: The Service continues until the term of the NSG Service purchased hereunder expires ("Initial Term") unless terminated earlier. Following expiration of the Initial Term, the Service will automatically extend for successive terms of the same duration unless Merchant cancels as specified below.
- Extension Opt-Out: You can stop your NSG Service from automatically extending by sending a written request to our customer service at least thirty (30) days before a new service period begins. A notice of extension opt-out takes effect upon the expiration of the then-current service period. Any notice given according to this procedure will be deemed to have been given when received. You agree to allow NSG to run a benchmark test prior to the ending of any service period.
Address for Notices
Notwithstanding anything to the contrary in the Agreement, all notices to Symantec must be made to: Norton Shopping Guarantee at 1621 N Kent St, #706, Arlington VA 22209. All such notices must be made in writing and mailed by either first class postage or personal courier and will be deemed delivered when received. All notices we make to you will be sent to the email address You specify, or if of general applicability, by posting to Our website.
Data Privacy Notice
Data Collection and Privacy Obligations of Symantec
Symantec will use information collected from Merchant and Merchant's registered Web site(s) solely for the purposes for which it was collected to perform under this Agreement, to verify Merchant identity and to provide Buyer benefits when a claim is made. The information collected during visits to Your Web site(s) and during a Buyer transaction may include, but is not limited to: IP addresses, domain names, time and date stamps, purchase details (not to include Buyer's credit card information), and other relevant usage data. In addition, Symantec may use this information to analyze trends, to track visitor activities in the aggregate, and to gather general information about which pages are visited to provide such information to Merchants.
If a Buyer submits a claim for a benefit, Symantec will collect the Buyer's name, email address, city, state, country, postal code, name of the web site, URL, and a description of the problem in order to investigate and to resolve the claim. Symantec may provide Merchant information to a Buyer in connection with a claim, including contact information to enable Buyer to communicate directly with a Merchant.
Symantec will process Merchant information in accordance with the Symantec Complete Online Privacy Statement. Except otherwise provided above, Symantec will not transfer or sell any Merchant or Buyer information to any third party without the express consent of Merchant or Buyer.
In accordance with the Federal Electronic Signatures in Global and National Commerce Act, you agree to the following:
- We may communicate with You regarding and subject of this Agreement by means of electronic communications, including (A) sending electronic mail to the email address You provided during your application, or (B) posting notices or communications on Our website. You agree that We may communicate with You by means of electronic communications the following: this Agreement (and revisions or amendments), notices, disclosures, notices and statements regarding Your Internet transactions, use of the seal and graphical elements, the debiting or crediting of Your designated bank account or credit card, Your use of the Service we offer through Our website, Your relationship with Us and/or other programs, products or services that are or may in the future be made available to You ("Communications"). Such Communications may include, but are not limited to this consent or disclosures regarding any other matter relating to Your use of the Service provided by Us.
- You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy. Electronic communications shall be deemed received by You when We send the electronic communication to the email address You provided at the time of registration or as revised by You thereafter in accordance with this Agreement, or when We post the electronic communication on Our website.
- For those communications or records that We are otherwise required under applicable law to provide in a written paper form to You, You agree that We may provide such communications or records by means of electronic communications. The following additional terms will apply to such electronic communications: (A) You may contact Us to request another electronic copy of the electronic communication without a fee; (B) You may request a paper copy of such an electronic communication, and We reserve the right to charge a fee to provide such paper copy; (C) You may contact Us to update Your application information used for electronic communications or to withdraw consent to receive electronic communications; and (D) We reserve the right to terminate Your use of any Service provided hereunder if You decline or withdraw consent to receive electronic communications from Us.
These terms and conditions apply if Merchant is accessing the NSG Service for evaluation purposes.
- Use Rights. The licenses granted to Merchant under the Agreement are for restricted use solely for the purpose of evaluation and testing. Merchant may not use the Service for any other purposes.
- Evaluation Period. The licenses granted to Merchant are time limited, and continue through the trial end date as specified upon Merchant's enrollment for evaluation license (the "Evaluation Period"). Unless Merchant purchases a commercial license for the NSG Service, the licenses granted to Merchant are terminated upon expiration of the Evaluation Period.
- LIMITATION OF LIABILITY. IN NO EVENT WILL SYMANTEC BE LIABLE FOR ANY DAMAGES UNDER THE AGREEMENT, INCLUDING WITHOUT LIMITATION, ANY LOST REVENUE, LOST PROFITS, OR CONSEQUENTIAL DAMAGES EVEN IF ADVISED OF THEIR POSSIBILITY.
- DISCLAIMERS. THE NSG SERVICE PROVIDED TO MERCHANT PURSUANT TO AND FOR THE PURPOSES OF THIS EVALUATION IS PROVIDED "AS IS" AND WITHOUT ANY WARRANTY WHATSOEVER. SYMANTEC DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. THE SERVICE DESCRIPTION IN THE AGREEMENT IS SOLELY FOR THE PURPOSE OF DESCRIBING THE SERVICE AND THAT ANY REPRESENTATIONS, WARRANTIES, SERVICE LEVEL COMMITMENTS OR OTHER SYMANTEC COMMITMENTS, OBLIGATIONS OR LIABILITIES THEREIN ARE HEREBY DISCLAIMED BY SYMANTEC. NO SYMANTEC AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY.
- Order of Precedence.In the event of any conflict between this "Evaluation License" and any provision of the Agreement, this "Evaluation License" will prevail and supersede such other provisions with respect to the NSG Service while provided for evaluation purposes.
Capitalized terms used in this Service Description, and not otherwise defined in the Agreement or this Service Description, have the meaning given below:
"Buyer" means a consumer who buys from Merchant's registered Web site(s).
"Dispute Resolution Process" means a process that Symantec employs to resolve Problems reported by Buyers.
"Problem" means a benefit claim submitted by a Buyer in connection with NSG.
END OF SERVICE DESCRIPTION
SYMANTEC HOSTED SERVICES TERMS
These Symantec Hosted Services Terms ("Service Terms") are part of the Agreement between You and Symantec. For the purposes of these Services Terms, "Symantec" means Symantec Corporation and/or its subsidiaries, and the terms "You", "Your" or "Customer" refer to the Services Entitlement owner/contract owner named in the Services Order. You and Symantec may each also be referred to as a "Party" and together, the "Parties." The "Agreement" consists of, collectively, these Services Terms, plus the terms of the applicable Services Order including the relevant Services Description. Capitalized terms not defined in these Services Terms have the same meaning as defined in the Services Order. Customer and Symantec agree as follows:
- DEFINITIONS. Capitalized terms shall have the meanings set forth below. Defined terms stated in the singular may be used in the plural, and vice versa.
- "Actual Use Level" means Customer's actual quantity, type and duration of Service use, regardless of Registered Use Level.
- "Affiliate(s)" means, any present or future entity that, directly or indirectly Controls, or is Controlled by, or is under common Control with either Party, where "Control" means power to direct or cause the direction of the management and policies of an entity whether through the ownership of voting securities, by contract, or otherwise.
- "Certificate" means the machine-generated certificate sent to Customer by Symantec to confirm a purchase of the applicable Services, whether ordered directly from Symantec or through Symantec's authorized channel partner.
- "Confidential Information" has the meaning given under "Confidentiality" below.
- "Customer Content" means information which the Customer uploads to the Service to be processed and/or stored through the Services and any information generated within the Service as a result of the processing of that information.
- "Customer Entity Data" means information that Symantec needs to configure the Service, and/or to provide any included support for the Service to the Customer, including but not limited to, names, e-mail address, IP address and contact details of designated users and contacts for the Service, and other Personal Information provided during configuration of the Service or any subsequent support call.
- "Entitlement" means Customer's right to access, use and/or benefit from, a given Service.
- "Initial Period" means the initial minimum period of time for which Customer commits to subscribe to and pay for a Service, as set forth in a Services Order.
- "Personal Information" means information from which a living individual can be recognized.
- "Registered Use Level" means the quantity and type of Entitlements for which Customer is committed to pay.
- "Renewal Period" means each of the subsequent, sequential Service periods following the Initial Period.
- "Service" means cloud-based and/or hosted Symantec service(s), sold to Customer hereunder, whether as an individual service or as a collective bundle of related services, including any Service Components.
- "Service Component" means certain enabling software, hardware peripherals and associated documentation which may be separately provided by Symantec as an incidental part of a Service.
- "Service Description" means Symantec's standard, then-current description of a Service's features, including any product-specific additional terms and requirements, and any accompanying service level targets ("SLA"), if applicable.
- "Service Meter" sometimes called, "Use Level" means the applicable unit(s) of measurement by which Symantec prices and sells an Entitlement to a Service, in effect at the time the relevant Services Order is created. (For example, "per device" or "1GB per User" or "per X" each could be Service Meters for given services).
- "Services Order" means the Parties' mutually-agreed commitment for Services under this Agreement. A Services Order may take the form of a written addendum, exhibit or statement of work signed by the Parties, a machine-generated Symantec quote accepted by Customer, or in the absence of any such document, Customer's order accepted by Symantec directly or through an authorized Symantec channel partner, as documented in the Certificate issued in confirmation of such order.
- "Term" means, for a given Service, the Initial Period together with any Renewal Periods.
- ORDERING. Symantec reserves the right to indicate the method(s) by which it will receive and accept orders for a given Service.
- SERVICES. Symantec agrees to provide the Services specified in the Services Order, subject to this Agreement. Subject to applicable law, Symantec reserves the right to provide the Services from anywhere in the world. Customer's access to the Services from certain countries may be subject to applicable law and any technical limitations of the Services. Services may be updated by Symantec from time to time. In order to enable Symantec to setup and/or provide the Service, Customer will provide Symantec with all necessary technical data, and other current, accurate and complete information reasonably required by Symantec for such purposes.
- SERVICES USAGE.
- Use. Customer will only use each Service for its internal business use, up to its applicable Registered Use Level. Customer will not resell the Service or act a service provider passing the use or benefit of the Service to third parties, unless otherwise mutually agreed through the applicable method(s) by which Symantec enrolls and permits service provider access and use, for a given Service.
- Lawful Use of Services. Customer may only use the Services for lawful business purposes. If Customer does not comply with this requirement, Symantec reserves the right to suspend all or part of the Service immediately during such non-compliance, without compensation to Customer of any kind.
- Changes in Service Use Level.
- During the Initial Period or a Renewal Period, Customer cannot reduce the Registered Use Level. The same Registered Use level will apply to the next Renewal Period, unless reduced or increased as set forth below. If Customer wishes to reduce its Registered Use Level for the next Renewal Period, Customer may do so by following Symantec's then-current process for such notifications, as may be found in the applicable Services Description or otherwise published by Symantec.
- At any time, Customer may purchase additional Entitlements to increase its Registered Use Level.
- If Customer's Actual Use Level exceeds its Registered Use Level, then Customer will promptly notify Symantec, and shall order and pay for such excess use. Fees for excess use will be at the same rates charged for the Initial Period order (or Renewal Period order), as applicable. In any case, Symantec reserves the right to invoice for excess Service use. Additionally, Symantec reserves the right to deem such increased use to be Customer's new Registered Use Level, in which case the Fees due for the increased Registered Use Level will be calculated through the then-remaining balance of the current Initial Period or Renewal Period, as applicable.
- TERM; RENEWAL.
- Initial Period and Auto-Renewal. The Initial Period for a Service, which may include an initial set-up period, will begin on the date indicated in the Services Order. If the Services Order does not also specify the length of the Initial Period, then the duration of the Initial Period is as indicated in the order accepted by Symantec. Customer agrees that it is purchasing the Services for the Initial Period, and that unless otherwise mutually agreed in writing by the Parties, and subject to the provisions "Renewal Opt Out" and End of Service Availability below, Services will automatically renew for Renewal Periods of twelve (12) months each (unless a shorter default Renewal Period is specified in the Services Order).
- Renewal Opt Out. Either party may elect not to renew the Services, by providing written notification to the other before the beginning of a Renewal Period. Notwithstanding the process for other notices set forth under "General", below, (i) Customer's non-renewal notification will be submitted in accordance with Symantec's then-current process for opting out of automatic renewal of the Renewal Period, as indicated in the Services Order or Services Description; and (ii) Symantec may provide non-renewal notification by email to Customer's then-current business or technical contact, and/or by publication on the applicable interface(s) through which Customer's administrator interacts with the Service(s).
- End of Service Availability. Symantec may notify Customer of the end-of-life (end of availability) of a given Service by giving no less than twelve (12) months prior written notice before such end of Service availability. Notwithstanding the process for other notices set forth under "General", below, Symantec may provide such notification by email to Customer's then-current business or technical contact, and/or by publication on the applicable interface(s) through which Customer's administrator interacts with the Service(s).
- This Agreement, in whole or as to specific Services Order(s), may be terminated at any time by either Party as follows: (i) upon written notice if the other Party breaches any material term of this Agreement, and such breach remains uncorrected for thirty (30) days following written notice; or (ii) immediately, if the other Party becomes the subject of a voluntary or involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or similar action for the benefit of creditors as a consequence of debt, or if the other Party otherwise ceases or threatens to cease business.
- Upon termination of an individual Services Order, this Agreement as to all other Services Orders will continue in full force and effect. Upon termination of this Agreement in whole, all outstanding Services Orders will be terminated immediately. Termination of this Agreement will be without prejudice to any rights or liabilities accrued as of the date of termination. Symantec will be entitled to invoice and be paid for all Services provided up to the effective date of termination, and all invoices become immediately then due and payable. Any term of the Agreement, which is intended to survive expiration or termination will survive, including, without limitation, confidentiality, restrictions on use of intellectual property, indemnity, limitations on liability and disclaimers of warranties and damages, governing law, and Customer's payment obligations accrued prior to termination.
- INVOICES; FEES; PAYMENT; TAXES.
- Invoices. Symantec reserves the right to invoice upon Symantec's acceptance of the applicable Services Order, or pursuant to "Changes in Service Use Level", above. If Symantec or Customer requires a purchase order document ("PO") to process a Services Order and/or invoice, then such PO must have sufficient detail to allow Symantec to accept and accurately fulfil Customer's order. Unless otherwise specified in a Services Order, Services fees will be calculated from the date the Service is made available to Customer. However, Symantec reserves the right to begin charging Service fees if, due to Customer's act or omission or failure to provide required information, Symantec is unable to make the Service available.
- Fees and Payment. Customer will pay Symantec the fees agreed to in the Services Order, or (if the Services Order is placed via Customer's nominated Symantec channel partner will pay the fees as separately agreed between Customer and such Symantec channel partner ("Fees"). For Service Orders directly invoiced by Symantec, Customer will pay Symantec invoiced amounts within thirty (30) days of the invoice date ("Due Date"). If any sum payable to Symantec is not paid by the Due Date, Symantec reserves the right, without prejudice to any other remedy, to (i) charge interest on such overdue sum on a day to day basis from the due date until paid in full the lesser of one percent (1%) per month or the maximum rate permitted by applicable law; and/or (ii) suspend the provision of the Services upon five (5) days prior notice, until paid in full. All Fees paid or payable for Services are non-cancellable and non-refundable. Symantec may update its pricing for a Service by publishing, quoting or invoicing Customer at the updated pricing at least thirty (30) days before such changes take effect; provided, however this sentence shall not apply to Fees agreed in a Services Order to be fixed for an Initial Period or applicable Renewal Period(s).
- Taxes. Customer is responsible for all taxes, customs duties, import fees or other similar charges, and all other mandatory payments imposed by government entities with respect to the Services or other items provided under this Agreement, excluding tax imposed on Symantec's net income and withholding taxes (subject to the condition of providing withholding tax payment receipts, as set forth below). Symantec will bill applicable taxes as a separate item on Customer's invoice and will not include them in the Fees. If a transaction is exempt from tax, Customer will provide Symantec with a valid exemption certificate or other evidence of such exemption in a form acceptable to Symantec. If Customer is required by law to withhold any tax from the payment, Customer will provide to Symantec original or certified copies of all tax payment receipts or other evidence of payment of taxes by Customer with respect to transactions under this Agreement. If Customer fails to provide Symantec with such tax payment receipts, if applicable, then Customer will reimburse Symantec for any fines, penalties, taxes and other governmental agency charges resulting from such failure.
- WARRANTY. Symantec will provide the Services in a good and workmanlike manner, and substantially in accordance with the Services Description. CUSTOMER AGREES THAT THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS WHETHER EXPRESS OR IMPLIED CONCERNING THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. SYMANTEC DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR THAT USE OF THE SERVICE(S) WILL BE UNINTERRUPTED OR ERROR-FREE.
- INTELLECTUAL PROPERTY. The intellectual property rights in the Service are and will remain Symantec's property or that of its licensors.
- Indemnification by Symantec. Symantec will defend and indemnify and hold Customer harmless from any claim asserting that the Services infringe any intellectual property right of a third party, and will pay any and all damages awarded by a court and actually paid by Customer, or agreed to in settlement by Symantec and attributable to such claim. Symantec's obligations under this provision are subject to Customer's doing the following: notifying Symantec of the claim in writing, as soon as Customer learns of it; providing Symantec all reasonable assistance and information to enable Symantec to perform its duties under this Section; allowing Symantec sole control of the defense and all related settlement negotiations; and not having compromised or settled such claim. Notwithstanding the foregoing, Customer may participate at Customer's expense in the defense of any such claim with its own counsel, provided Symantec retains sole control of the claim. Customer has the right to approve any settlement that affirmatively places on Customer an obligation that has a material adverse effect on Customer other than the obligations to cease using the affected Service or to pay sums indemnified hereunder. Such approval will not be unreasonably withheld.
- If the Services are found to infringe, or if Symantec determines in its sole opinion that the Services are likely to be found to infringe, then Symantec will either (i) obtain for Customer the right to continue to use the Service; or (ii) modify the Service (including if applicable Service Component(s)) so as to make it non-infringing, or replace it with a non-infringing equivalent substantially comparable in functionality, (and in the case of infringing Service Components, Customer will stop using any infringing version of such Service Components); or, if Symantec determines in its sole opinion that "(i)" and/or "(ii)" are not commercially reasonable, Symantec may (iii) terminate Customer's rights and Symantec's obligations under this Agreement with respect to such Services, and in such case shall refund to Customer the fees paid for the relevant Services. Notwithstanding the above, Symantec will not be liable for any infringement claim to the extent that it is based upon: (1) modification of the Services other than by Symantec; (2) combination, use, or operation of the Services with products not specifically authorized by Symantec to be combined with the Services; (3) use of the Services other than in accordance with this Agreement; or (4) Customer's continued use of infringing Services after Symantec, for no additional charge, supplies or offers to supply modified or replacement non-infringing Services.
- THIS SECTION "INDEMNITY" STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND SYMANTEC'S SOLE AND EXCLUSIVE LIABILITY REGARDING INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
- Indemnification by Customer. Customer agrees, at Symantec's request to defend, and to indemnify Symantec against and hold Symantec harmless from any and all claims, actions, losses, costs and expenses Symantec may incur as a result of: (i) any breach by Customer of the Section entitled "Lawful Use of Services", (ii) Customer's unauthorized use of the Service in a manner not contemplated by the Services Description, or (iii) any third party claim in relation to Customer Content and/or Customer Entity Data.
- "Confidential Information" means the non-public information that is exchanged between the parties, provided that such information is: (1) identified as confidential at the time of disclosure by the disclosing party ("Discloser"), or (2) disclosed under circumstances that would indicate to a reasonable person that the information ought to be treated as confidential by the party receiving such information ("Recipient"). A Recipient may use the Confidential Information that it receives from the other party solely for the purpose of performing activities contemplated under this Agreement. For a period of five (5) years following the applicable date of disclosure of any Confidential Information, a Recipient will not disclose the Confidential Information to any third party. A Recipient will protect it by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication as the Recipient uses to protect its own confidential information of a like nature. The Recipient may disclose the Confidential Information to its Affiliates, agents and subcontractors with a need to know in order to fulfill the purpose of this Agreement, who have signed a nondisclosure agreement at least as protective of the Discloser's rights as this Agreement.
- This provision imposes no obligation upon a Recipient with respect to Confidential Information which: (i) is or becomes public knowledge other than by breach of this Agreement; (ii) was in the Recipient's possession before receipt from the Discloser and was not subject to a duty of confidentiality; (iii) is rightfully received by the Recipient without any duty of confidentiality; (iv) is disclosed generally to a third party by the Discloser without a duty of confidentiality on the third party; or (v) is independently developed by the Recipient without use of the Confidential Information. The Recipient may disclose the Discloser's Confidential Information as required by law or court order provided: (1) the Recipient promptly notifies the Discloser in writing of the requirement for disclosure; and (2) discloses only as much of the Confidential Information as is required. Upon request from the Discloser or upon termination of the Agreement, the Recipient will return all Confidential Information and all copies, notes, summaries or extracts thereof or certify destruction of the same.
- Each party will retain all right, title and interest to such party's Confidential Information. The parties acknowledge that a violation of the Recipient's obligations with respect to Confidential Information may cause irreparable harm to the Discloser for which a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, Discloser will be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions.
- Use and Protection of Customer Content and Customer Entity Data.
- Symantec operates as a data processor with no control over the type, substance or format of Customer Content. Customer, as data controller, is responsible (i) to ensure that processing and disclosure of such information to Symantec complies with applicable laws; (ii) to inform users that their information will be processed by Symantec in the United States or other countries that may have less protective data protection laws than the region in which they are situated (including the European Economic Area); (iii) to inform users of how it will be used, and to assure that Customer has all appropriate consents required for such transfer and use; (iv) to inform relevant users that communications transmitted through systems covered by the Services may be intercepted or monitored for purposes of the Services; and (v) to satisfy itself that the Security Standards are appropriate, given the nature of the Customer Content.
- In the normal course of providing the Services, Symantec does not require access to or use of the Customer Content, other than by machine-read, electronic methods. Symantec, its Affiliates, agents or subcontractors, may access or use the Customer Content, if required, to enable proper functioning of the Service or as otherwise set forth in the Service Descriptions. In the limited circumstances where Symantec has any access to the Customer Content, Symantec shall process the Customer Content in accordance with the Customer's instructions, provided that such instructions are consistent with the terms of this Agreement. Symantec may access, use or disclose Customer Content as required by law or court order. Symantec will give Customer reasonable notice of any legally required disclosure to allow Customer to seek a protective order or other appropriate remedy (except to the extent Symantec's compliance with the foregoing would cause it to violate a court order or other legal requirement). As between Customer and Symantec, at all times the Customer Content will remain the property of Customer.
- By providing the Customer Entity Data, Customer acknowledges that the Customer Entity Data, including any Personal Information contained within it, will be processed and accessible on a global basis by Symantec, its Affiliates agents and subcontractors for the purposes of providing the Service, to generate statistical information about the Services, for internal research and development, and as otherwise described in the Services Descriptions, including in countries that may have less protective data protection laws than in the country in which Customer or its users are located. Symantec may disclose the collected Personal Information as required or permitted by law or in response to a subpoena or other legal process. Customer also consents for itself and as agent for its contacts whose details have been provided as part of the Customer Entity Data to the use by Symantec of that Personal Information for the purposes of informing Customer of Symantec products and services which may be of interest to Customer and account management. All questions and requests on privacy matters may be addressed to Symantec Corporation €“ Privacy Program Office, 350 Ellis Street, Building A, Mountain View, CA 94043, USA. Email: email@example.com. Symantec acknowledges that individuals may choose to opt out of direct marketing at any time on written notice to Symantec.
- Symantec will maintain administrative, technical and physical safeguards for the Symantec Network designed to (i) protect the security and integrity of the Symantec Network, and (ii) protect against accidental or unauthorized, or unlawful access, use, alteration or disclosure of, loss, destruction or damage to, Customer Content and Customer Entity Data (the "Security Standards"). The "Symantec Network" means Symantec's data center facilities, servers, and networking equipment/software involved in hosting Customer Content and storing the Customer Entity Data that are under Symantec's reasonable control and are used to provide the Services. The Security Standards will be substantially equivalent to the generally accepted security standards in the IT industry for hosted services similar to the Services. Symantec will conform to the Security Standards during the Term.
- LIMITATION OF LIABILITY.
- Nothing in this Agreement shall exclude or limit: (i) Symantec's liability for death or personal injury caused by its negligence; or (ii) any fraudulent pre-contractual misrepresentations made by Symantec on which Customer can be shown to have relied; or (iii) any other liability which cannot be excluded by law. Subject to Section 13b), no limitation on liability shall apply to Symantec's liability to pay damages finally awarded pursuant to Section 10a.
- IN NO EVENT, REGARDLESS OF THE LEGAL BASIS FOR THE CLAIM, WILL EITHER PARTY OR ITS SUPPLIERS BE LIABLE, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES, LOSSES, EXPENSES OR COSTS OF ANY KIND, WHETHER ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES, DEFECTIVE PERFORMANCE, NON-PERFORMANCE OR DELAYED PERFORMANCE BY SYMANTEC OF ANY OF ITS OBLIGATIONS UNDER OR CONNECTED WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE PARTIES' INDEMNITY OBLIGATIONS HEREUNDER AND CUSTOMER'S PAYMENT OBLIGATIONS FOR SERVICES FEES DUE IF UNPAID, REGARDLESS OF THE LEGAL BASIS FOR THE CLAIM, SYMANTEC'S OR ITS SUPPLIERS' TOTAL LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID BY CUSTOMER FOR THE SERVICES GIVING RISE TO THE LIABILITY. NOTHING IN THIS AGREEMENT WILL LIMIT EITHER PARTY'S LIABILITY FOR ANY DAMAGE THAT CANNOT BE EXCLUDED BY LAW.
- U.S. GOVERNMENT RESTRICTED RIGHTS. The Symantec hosted Services and any related enabling software are deemed commercially available hosted services and commercial computer software as defined in FAR 12.212, and are subject to Symantec's commercial licensing/use terms, as required by FAR Section 52.227-19 "Commercial Computer Licensed Software €“ Restricted Rights" and DFARS 227.7202, "Rights in Commercial Computer Licensed Software or Commercial Computer Licensed Software Documentation", as applicable, and any successor regulations, whether delivered by Symantec as on premises or hosted services. Any use, modification, reproduction, release performance, display or disclosure of the Services and such software by the U.S. government shall be solely in accordance with the terms of this Agreement. For purposes of this license, the services are defined as all of the functions and capabilities performed by Symantec's software applications accessed under this license, regardless of whether such functions and capabilities operate independently, interdependently or in conjunction with third party applications. Contact Legal Department, Symantec Corporation, 350 Ellis Street, Mountain View, California 94043, U.S.A.
- GENERAL. (a) Symantec has the right to subcontract the performance of the Services to third parties, provided that Symantec remains responsible for the contractual obligations according to the Agreement and any Services Order. (b) All notices of breach, termination or the like will be in writing and addressed to the receiving party's current business contact, if known, with a cc: to the General Counsel/Legal Department of the receiving party and sent to the party's address as listed in the Agreement, or as updated by either party in writing. Notices shall be effective upon receipt and shall be deemed received as follows: (i) if personally delivered by courier, when delivered, or (ii) if mailed by first class mail, or the local equivalent, on the fifth business day after posting with the proper address. (c) Customer may not assign the rights granted hereunder or the Agreement, in whole or in part and whether by operation of contract, law or otherwise, without Symantec's prior written consent. Such consent will not be unreasonably withheld or delayed. (d) Each party will be excused from performance, other than payment obligations, for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, due to unforeseen circumstances or to causes beyond such party's reasonable control including but not limited to war, strike, riot, crime, acts of God, or shortages of resources. (e) This Agreement shall be governed by and construed under the following laws, without giving effect to conflict of law principles: the laws of the state of California for Customers located in the Americas; the laws of England and Wales for Customers located in Europe, Middle East or Africa; the laws of Singapore for Customers located in Asia Pacific. Such application of law excludes any provisions of the United Nations Convention on Contracts for the International Sale of Goods, including any amendments thereto. (f) If any provision of the Agreement is found partly or wholly illegal or unenforceable, such provision will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions will remain in full force and effect. A waiver of any breach or default under the Agreement will not constitute a waiver of any other right for subsequent breach or default. No person other than a party to the Agreement will be entitled to enforce any term of it except as expressly provided herein. (g) Customer hereby acknowledges and agrees that the Services and any related download or technology ("Controlled Technology") may be subject to applicable export control and trade sanction laws, regulations, rules and licenses, and that Customer is hereby notified of the information published by Symantec on https://www.symantec.com/about/profile/policies/legal.jsp, or successor website, and will comply with the foregoing, and with such further export restrictions that may govern individual Services, as specified in the relevant Service Descriptions. (h) Any subsequent modifications to these terms and conditions will be made in writing and duly signed by authorized representatives of both parties or they will be void and of no effect. Together with the terms of the Services Order, these terms are the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any previous or contemporaneous agreement, proposal, commitment, representation, or other communication whether oral or written between the parties regarding such subject matter. The Agreement prevails over any conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by Customer, even if signed and returned. The terms of the Services Order, the terms of the main body of this Agreement, and the Services Description shall govern, in that order of precedence, in the event of any conflict by or among such documents. This Agreement may be executed in multiple counterparts all of which taken together shall constitute one single agreement between the parties. The signatories hereto represent that they are duly authorized to sign this Agreement on behalf of their respective companies.