(Updated: June 26, 2018)
License Agreement: General Terms
Please read this License Agreement (the “Agreement”) carefully before downloading, accessing or using the programs DFNDR (any version) and/or PSafe DFNDR (any version) and/or DFNDR Security (any version) and/or DFNDR Performance (any version) and/or PowerPRO (any version) and/or DFNDR Battery (any version) and/or DFNDR VPN (any version) and/or Stash (any version) and/or DFNDR Vault (any version) (hereinafter, “Programs”), and/or using the services offered through them (hereinafter, “Services”). THIS AGREEMENT GOVERNS USE OF THE PROGRAMS AND SERVICES OF PSAFE TECNOLOGIA S.A. AND ITS AFFILIATES (COLLECTIVELY, “PSAFE,” “WE” OR “US”) BY USERS LOCATED IN THE UNITED STATES.
BY ACCESSING OR USING THE PROGRAMS OR SERVICES, CLICKING ON THE “GET SECURED” BUTTON OR DOWNLOADING THE PROGRAMS, YOU ARE ACCEPTING THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH PSAFE, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). THE TERMS “YOU,” “USER,” AND “LICENSEE” REFER TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, THAT IS THE USER OF THE PRODUCTS AND SERVICES. IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, ACCESS OR USE THE PROGRAMS OR SERVICES.
CERTAIN PRODUCTS AND SERVICES MAY BE MADE AVAILABLE ON A SUBSCRIPTION BASIS, ARE PAID FOR IN ADVANCE FOR A CERTAIN PERIOD OF TIME (THE “INITIAL TERM”), AND WILL AUTOMATICALLY RENEW FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT OUR THEN-CURRENT FEE FOR SUCH SERVICES, UNLESS YOU OPT OUT OF SUBSCRIPTION AUTO-RENEWAL IN ACCORDANCE WITH THE “AUTOMATIC RENEWAL” PROVISIONS IN SECTION 6 BELOW.
PLEASE BE AWARE THAT SECTION 14 OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE PROGRAMS OR SERVICES WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
This Agreement represents the entire agreement between the Licensee and PSafe regarding your use of the Programs and Services. This Agreement merges and supersedes in its entirety any and all previous oral or written agreements between the Licensee and PSafe with respect to these Programs and Services. Similarly and as permitted by applicable law, the terms and conditions of this Agreement shall take precedence over any advertising material or communication, if such material contradicts any of these terms and conditions of this Agreement.
PLEASE NOTE THAT THIS AGREEMENT IS SUBJECT TO CHANGE BY PSAFE IN ITS SOLE DISCRETION AT ANY TIME. WHEN CHANGES ARE MADE, PSAFE WILL MAKE A NEW COPY OF THIS AGREEMENT AVAILABLE ON THE WEBSITE. PSAFE WILL ALSO UPDATE THE “UPDATED” DATE AT THE TOP OF THIS AGREEMENT. IF PSAFE MAKES ANY MATERIAL CHANGES, WE MAY ALSO SEND AN E-MAIL TO YOU AT THE LAST E-MAIL ADDRESS YOU PROVIDED TO US. ANY CHANGES TO THIS AGREEMENT WILL BE EFFECTIVE IMMEDIATELY FOR NEW USERS OF THE PROGRAMS AND/ OR SERVICES AND WILL BE EFFECTIVE THIRTY (30) DAYS AFTER POSTING NOTICE OF SUCH CHANGES ON THE WEBSITE OR THIRTY (30) DAYS AFTER DISPATCH OF AN E-MAIL NOTICE OF SUCH CHANGES FOR EXISTING USERS (ONLY IF SUCH EXISTING USERS HAVE PROVIDED PSAFE WITH A VALID E-MAIL ADDRESS). PSAFE MAY REQUIRE YOU TO PROVIDE CONSENT TO THE UPDATED LICENSE AGREEMENT IN A SPECIFIED MANNER BEFORE FURTHER USE OF THE PROGRAMS AND/ OR THE SERVICES IS PERMITTED. IF YOU DO NOT AGREE TO ANY CHANGE(S) AFTER RECEIVING A NOTICE OF SUCH CHANGE(S), YOU SHALL STOP USING THE PROGRAMS AND/OR THE SERVICES. OTHERWISE, YOUR CONTINUED USE OF THE PROGRAMS AND/OR SERVICES CONSTITUTES YOUR ACCEPTANCE OF SUCH CHANGE(S). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT LICENSE AGREEMENT.
Acceptance of the terms and conditions of this Agreement does not grant the User any ownership rights in the Programs.
Current versions of the Programs “DFNDR” / “PSafe DFNDR” / “DFNDR Security”, “DFNDR Performance”, “PowerPRO”, “DFNDR Battery”, and “Stash” can be used only on Android devices (principally smartphones). “DFNDR VPN” and “DFNDR Vault” have current versions for both Android and iOS devices (principally smartphones).
- Upon installing the Programs from Google Play, certain permissions may be shown that the User has to grant in order to install and use the specific application. Also, as part of the installation process or use of Programs, the Programs may offer to make changes to your Android device’s settings. These changes, if approved by you, can be reconfigured at any time in the settings available on your Android device. These changes may include the following: Enable, disable, and/or change device features to activate energy-saving mode profiles such as display brightness, time before screen lock, vibration, mobile data, Wi-Fi, Bluetooth, Synchronization, and reaction to touch.
- To uninstall the Programs, you can use the uninstallation procedures offered by the operating system of your device.
- Grant of the License.
1.1. Subject to the terms and conditions of this Agreement, PSafe grants the Licensee a non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use the Programs and associated documentation, limited to the territory of Latin America or other permitted territories. With respect to the mobile application Programs (“Applications”), such license is limited to devices that you own or control.
1.2. In the case of the Programs, this Agreement grants the Licensee the right to use the Programs only under the following circumstances (and subject to the other terms and conditions of this Agreement, including but not limited to Sections 8 and 12):
- Multiple devices for Users at home (for personal use).
- Devices (unlimited in number) belonging to non-governmental organizations and other non-profit organizations.
- Devices (unlimited in number) belonging to accredited educational institutions in the United States.
1.3. Under no circumstances shall a license be granted for commercial use, or for corporate environments, without the express written consent of PSafe.
1.4. This Agreement shall commence on the date when Licensee accepts the Agreement (as described in the preamble above) and remain in full force and effect while Licensee uses the Products and Services, unless terminated earlier in accordance with this Agreement. PSafe and/or the Licensee may terminate this license agreement at any time, for any reason, upon written notice to the other party. In addition, PSafe may terminate this Agreement immediately in the event Licensee materially breaches any provision of this Agreement. Upon termination of this Agreement, Licensee must uninstall the Programs and destroy any copies thereof pursuant to the terms of this Agreement, unless PSafe gives written permission stating otherwise. Upon PSafe’s request, Licensee will certify in writing the complete destruction of all copies of the Programs. All provisions of this Agreement which by their nature should survive, shall survive termination of this Agreement, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
1.5. You acknowledge and agree that the availability of the Application and the Services is dependent on the third party from whom you received the Application license, e.g., Google Play and/or Apple App Store (either an “App Store”). You acknowledge that the Agreement is between you and PSafe and not with the App Store. PSafe, not the App Store, is solely responsible for the Application and Services, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use certain features of the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Application and Services. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Application and Services. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce them.
- Intellectual Property
2.1. You agree that the Programs, Services as well as the corresponding documentation, are the exclusive property of PSafe and its affiliates and suppliers. PSafe and its affiliates and suppliers will retain all right, title and interest in and to the foregoing, including all intellectual property rights therein, including but not limited to, the copyrights of the Programs, Services, documentation, and any other service or product granted to the Licensee by PSafe as part of this Agreement (unless otherwise noted). No license or other express or implied rights of any kind are granted or conveyed except for the limited license expressly provided above. Any rights not expressly granted by PSafe in this Agreement are reserved
2.2. PSafe authorizes the use of its Programs, products and Services in comparative studies, provided that these are objective and carried out in good faith and in accordance with acceptable industry practices. These studies may be performed only with respect to the latest versions of the Programs, products and Services.
2.3. User Generated Content
2.3.1. The Programs and Services may invite the Licensee to (i) identify or otherwise categorize phone numbers via the Call Blocker feature, and/or (ii) participate in online forums, online messaging services or other features that could lead the Licensee to create, post, submit, publish, transmit or distribute content including but not limited to text, photographs, graphics, drawings, comments, suggestions or other information (“User Generated Content”). You acknowledge that you are solely responsible—and not PSafe—for all User Generated Content that you make available, regardless of the tool, system or form of submission. For each piece of User Generated Content that you submit, you represent and warrant that: (i) you have the right to submit the User Generated Content to us and grant the licenses set forth in this Section 2.3; (ii) PSafe will not need to obtain licenses from any third party or pay royalties to any third party to use such User Generated Content; (iii) the User Generated Content does not infringe, violate or misappropriate any third party’s rights, including any copyrights, trademarks or other intellectual property rights and privacy rights; and (iv) the User Generated Content complies with this Agreement and all applicable laws. Specific to identification or other categorization of phone numbers (e.g., “tagging”) via the Call Blocker feature, you may associate a phone number with a business or a name, and you may report a phone number as “Spam” or some other category to be included in PSafe’s call-blocking directory. You guarantee that any identification or categorization so performed is, to the best of your knowledge, true and correct, not in violation of applicable law, and not intended in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party. If you have questions or concerns about the categorization or identification of a phone number, please contact firstname.lastname@example.org.
2.3.3. You acknowledge and agree that PSafe may access, preserve and disclose account information and/or User Generated Content that you provide if PSafe is required to do so by applicable law or if we believe in good faith that such access, preservation or disclosure is reasonably necessary to (i) comply with legal process, (ii) enforce this Agreement, (iii) respond to claims that any User Generated Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of PSafe, our employees, directors or officers, partners and agents, or members of the public.
2.3.4. Whenever Licensee creates, posts, submits, publishes, distributes or transmits content via the Programs or Services, or through websites, platforms, services and/or third-party products that the user has access to due to the use or installation of the products and/or services of PSafe, Licensee grants (and represents and warrants that Licensee has the necessary rights to grant) to PSafe a non-exclusive, royalty-free, perpetual, irrevocable, worldwide, transferable and sublicensable right (including any moral rights) and license to use, copy, modify, adapt, distribute, store, host, publish, process, create derivative work or exploit in any way in whole or in part any media, software or way that is known or may come to exist hereafter, the User Generated Content (provided by Licensee) for the purposes of operating and providing the Programs and Services to Licensee and to our other users without any other consent, notice and/or compensation to Licensee.
2.3.5. You agree that submission of any ideas, suggestions, documents, and/or proposals to PSafe, including via email (“Feedback”) is at your own risk and that PSafe has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to PSafe a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights.
2.3.6. In addition to the limitations set forth in Section 1 with respect to the license to the Programs and Applications granted to you by this Agreement, you agree not to upload User Generated Content which is or includes material that: (i) is offensive, abusive, defamatory, pornographic or obscene, (ii) is illegal or promotes an illegal act of any kind, including violations of intellectual property rights, privacy or proprietary rights of PSafe or a third party, (iii) includes personal data of third parties or is intended to solicit such personal data, (iv) includes malicious content such as malware, Trojan horses or viruses, or otherwise interferes with the proper functioning of the Services or Programs or with any user’s access to the Services or Programs, (v) is intended to or does harass or bully any person, (vi) impersonates or misrepresents your identity or your affiliation with another user, person or entity, or is otherwise fraudulent, false, deceptive, or misleading (in which case, PSafe may at any time and in its sole discretion reclaim your username), (vii) uses automated means to artificially promote content, (viii) involves the transmission of unsolicited mass mailing (“spam”), junk mail, chain letters, or similar communications, (ix) involves commercial or sales activities such as advertising, contests, sweepstakes, or pyramid schemes, (x) interferes with or disrupts the Services or Programs, tampers with or attempts to prove, scan, or test for vulnerabilities in the Services or Programs or PSafe’s computer systems or network, or breaches any of PSafe’s security, encryption or authentication measures, (xi) harms or exploits people under the age of 18 (or such other age as determined by applicable law), or (xii) conflicts with this Agreement, in each case as determined by PSafe.
2.4. Certain software code incorporated into or distributed with the Programs and/or Services may be licensed by third parties under various “open-source” or “public-source” software licenses (such as the GNU General Public License, the GNU Lesser General Public License, the Apache License, the Berkeley Software Distribution License, and the MIT License) (collectively, the “Open Source Software”). Notwithstanding anything to the contrary in this Agreement, the Open Source Software is not licensed under Section 1 and instead is separately licensed pursuant to the terms and conditions of their respective open-source software licenses. Licensee agrees to comply with the terms and conditions of such open-source software license agreements.
- Procedure for Making Claims of Copyright Infringement
3.1. PSafe respects the intellectual property rights of others and we ask our users to do the same. If you are a copyright owner and believe a user of the Programs or Services is infringing your copyright or the copyright of any third party, please notify our designated copyright agent in writing at the following address:
Attn: Copyright Agent
45 Belden Place, Suite 300
San Francisco, CA 94104
3.2. Each notification must include the following information: (i) a physical or electronic signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed, (ii) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works, (iii) identification of the material that is claimed to be infringing, and information reasonably sufficient to permit PSafe to locate the material, (iv) information reasonably sufficient to permit PSafe to contact you, such as an address, telephone number, and, email address, (v) a written statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law, and (vi) a statement made under penalty of perjury that the information in the notification is accurate, that you are the copyright owner or authorized to act on the owner’s behalf.
3.3. The above process may be used to inform us of potential or suspected violations of other intellectual property rights, including unauthorized use of trademarked material.
3.4. We may remove User Generated Content and other content on the Services and Programs alleged to be infringing and to terminate the right to use the Services and Programs by any user who infringes the intellectual property rights of another person or entity, in each case without prior notice and at our sole discretion.
- Backup Copy
4.1. When required by law, this Agreement authorizes the Licensee to make a backup copy of the Programs, provided that the Licensee retains with respect to such copy all the copyright and other proprietary notices.
- Changes to Products and Services
5.1. The Licensee acknowledges and agrees that, during the term of this Agreement and so that PSafe’s products may adapt to technological advances and be improved, PSafe may automatically send the Licensee an updated version of the Programs and/or products and/or Services that the Licensee already is using. PSafe may require Licensee to accept updates to such Programs and/or products and/or Services that Licensee has installed on Licensee’s device. Licensee acknowledges and agrees that PSafe may update such Programs and/or products and/or Services with or without notifying Licensee. Licensee may need to update third-party software from time to time in order to use such Programs and/or products and/or Services. Alternatively, PSafe may stop its development of the Program or product or Service used by the Licensee and replace it with others.
5.2. Any future release, update, or other addition to functionality of the Programs and/or products and/or Services, shall be subject to this Agreement, unless PSafe expressly states otherwise.
5.3. Similarly, should the present Agreement be terminated, in the case of updates to the Programs and products and Services, the Licensee acknowledges and agrees that the services and/or features of the Program or product or Service may have been modified in order to adapt to technological advances and, therefore, the Licensee will have to change to a new Program, product or version, according to the policy established by PSafe.
5.4. If the Licensee changes to a new version, a new Program, or product in order to update a previous version, the updated version, Program or product is the only one that the Licensee shall have the right to use, and the Licensee’s use of the new version, Program or product is conditioned on Licensee’s acceptance of the terms and conditions applicable to the new version, Program or product. By using the new version, Program or product, Licensee represents that Licensee has reviewed the applicable terms and conditions and agree to be bound by such terms and conditions. The Licensee is obligated, in such cases, to delete any materials corresponding to the previous version.
5.5. By accepting this Agreement, the Licensee accepts all such updates and modifications to the Services, Programs or products.
- Fees and Purchase Terms for In-App Purchases
6.1. PSafe may offer certain Programs and Services for purchase through the applicable App Store (“In-App Purchases”). As of the date these Terms were last revised, to make an In-App Purchase, you must have or create an active account, including relevant payment information, with the App Store you are using (“Account”). Your Account will be charged for the In-App Purchase in accordance with the terms disclosed to you at the time of purchase as well as the general terms for In-App Purchases available through the applicable App Store. You agree to pay all fees or charges to your Account in accordance with the App Store fees, charges and billing terms in effect at the time a fee or charge is due and payable. You also agree to pay all applicable taxes. Please review the applicable App Store payment terms prior to making an In-App Purchase or any other transaction through the App Store. The App Store payment terms will govern any such transactions.
6.2. Automatic Renewal. Where indicated at the time of purchase, certain In-App Purchases are made on a subscription basis and will automatically renew unless cancelled in accordance with the terms of the applicable App Store (each, a “Subscription”). Please review the applicable App Store terms if you wish to cancel any Subscription for PSafe Programs or Services made through an App Store.
6.3. PSafe may change its prices and billing methods at any time, subject, with respect to In-App Purchases, to the terms of any agreements in place between PSafe and the applicable App Store, and such changes will be reflected in any In-App Purchases made following the date such changes take effect.
6.4. Refunds. To request a refund, consult your applicable App Store policies and guidelines, as you will need to request the refund directly from the App Store that processed your purchase. In case of difficulty, you also may contact email@example.com. PSafe reserves the right not to issue refunds requested more than thirty (30) days after the In-App Purchase date.
6.5. Free Trials and Other Promotions. Any free trial or other promotion that provides you with free access to Programs or Services that are available for purchase (“Trial Access”) must be used within the specified time of the Trial Access or as such Trial Access is otherwise limited according to its terms (e.g., you may be able to access the free version for an unrestricted time, but only use it in certain ways or up to certain limits). Depending your applicable App Store’s policies, you may be charged automatically at the end of the Trial Access period unless you cancel before it ends. If you are inadvertently charged for a Program or Service during your Trial Access, please contact the App Store that processed the charges directly in order to have the charges reversed. PSafe is not able to request or process refunds for incorrect or unauthorized charges made by App Stores, whether for Trial Access or otherwise.
- Consent to Collection of Personal and Biometric Data
7.1. GENERAL DATA COLLECTION
PSAFE INFORMS THE LICENSEE THAT CERTAIN PROGRAMS OR PRODUCTS OR SERVICES USE DATA COLLECTION TECHNOLOGY TO COLLECT TECHNICAL INFORMATION (INCLUDING SUSPISCIOUS FILES) TO IMPROVE THE PROGRAM OR THE PRODUCT OR SERVICES, ADAPT THEM TO THE USER’S PREFERENCES, AND TO PREVENT UNLICENSED OR ILLEGAL USE. THE LICENSEE ACCEPTS THAT PSAFE MAY USE SUCH INFORMATION TO IMPROVE THE FEATURES OFFERED BY THE PROGRAM OR PRODUCT OR SERVICE. AS SUCH, PSAFE MAY CAPTURE CERTAIN CONFIGURATION INFORMATION RELATED TO THE USER’S DEVICE, INCLUDING, BUT NOT LIMITED TO, THE DEVICE TYPE AND/OR NAME, MANUFACTURER, OPERATING SYSTEM AND VERSION, SCREEN DPI, THE DEVICE’S SET LANGUAGE, TYPE OF CONNECTION USED, UTILIZATION OF DEVICE FUNCTIONS AND APPS, DATA ABOUT THE INSTALLATION AND/OR REMOVAL OF APPS, DEFAULT BROWSER AND VERSION, VERSIONS OF ANY OTHER BROWSER INSTALLED, AMOUNT OF RAM, SIZE OF DATA STORAGE OF THE DEVICE, SIZES AND TYPES (BY FILE EXTENSION) OF FILES STORED, AND THE UNIQUE DEVICE IDENTIFIER (HWID, IMEI, CPU-ID). PSAFE ALSO MAY ANALYZE THE RESULTS OF SEARCHES PERFORMED BY USERS AND/OR ANY LINKS SHOWN ON THE USER’S SCREEN, IN ORDER TO NOTIFY THE USER OF THE RISKS ASSOCIATED WITH CLICKING ON URLS AND / OR LINKS. IN THE CASE OF SERVICES THAT INCLUDE STORING AND/OR SHARING DIGITAL DATA (FOR EXAMPLE, BUT NOT LIMITED TO, CONTACTS ON THE DEVICE, FILES, MUSIC, VIDEOS), SPECIFICALLY , PSAFE MAY RECORD INFORMATION ABOUT THE ACTIVITIES OF THE USER OF THE SERVICE, INCLUDING (BUT NOT LIMITED TO) INFORMATION ABOUT THEDEVICES USED TO ACCESS THE SERVICE (SUCH AS PC, PHONE, TABLET, ETC.), CONFIGURATION INFORMATION, THE METADATA OF FILES, AS WELL AS THE DATES AND TIMES ASSOCIATED WITH TRANSACTIONS AND OTHER INTERACTIONS WITH THE SERVICE. THE LICENSEE ACCEPTS THAT PSAFE MAY USE THIS INFORMATION TO IMPROVE THE FEATURES OFFERED BY THE PROGRAMS OR PRODUCTS OR SERVICES.
7.2. LICENSEE’S CONSENT TO COLLECTION OF PERSONAL DATA
7.3. LICENSEE’S CONSENT TO COLLECTION OF BIOMETRIC DATA
IF THE USER ELECTS TO ACTIVATE THE FACIAL RECOGNITION FUNCTION OFFERED THROUGH DFNDR VAULT, THE APPLICATION WILL COLLECT DATA CORRESPONDING TO THE FACEPRINT OF THE USER (“BIOMETRIC DATA”) TO PERFORM THE FACIAL RECOGNITION SCAN. THE FACIAL-SCANNING AND BIOMETRIC DATA STORAGE SOFTWARE IN DFNDR VAULT IS PROVIDED BY A THIRD PARTY UNDER LICENSE TO PSAFE. THE BIOMETRIC DATA IS STORED LOCALLY ON THE USER’S DEVICE, IT IS ENCRYPTED FOR SECURITY PURPOSES AND IT IS NOT TRANSMITTED OFF THE USER’S DEVICE. DFNDR VAULT USES THE BIOMETRIC DATA OBTAINED FROM USERS WHO UTILIZE ITS FACIAL RECOGNITION FUNCTION FOR THE SOLE PURPOSE OF PROVIDING THE USER WITH THE FACIAL RECOGNITION UNLOCK FUNCTION WHEN ACCESSING DFNDR VAULT. PSAFE DOES NOT SHARE THE BIOMETRIC DATA WITH ANY THIRD PARTY FOR ANY PURPOSE AND THE THIRD-PARTY SOFTWARE LICENSOR DOES NOT HAVE ACCESS TO THE BIOMETRIC DATA. PSAFE WILL NOT USE THE BIOMETRIC DATA FOR ANY OTHER PURPOSES OR SHARE THE BIOMETRIC DATA WITH ANY THIRD PARTY WITHOUT, IN EACH CASE, FIRST OBTAINING YOUR EXPRESS CONSENT BEFORE DOING SO.
8.1. PSAFE AND ITS AFFILIATES, LICENSORS AND OTHER SUPPLIERS HEREBY DISCLAIM ALL OTHER WARRANTIES RELATING TO THE PROGRAMS AND SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. PSAFE DOES NOT WARRANT THAT THE OPERATION OF THE PROGRAMS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. LICENSEE ACKNOWLEDGES AND AGREES THAT NO SECURITY SOFTWARE CAN BE GUARANTEED TO BE PERFECTLY SECURE AND THAT INSECURITIES OR VULNERABILITIES MAY ARISE IN THE PROGRAMS OR SERVICES. PSAFE AND ITS AFFILIATES, LICENSORS AND OTHER SUPPLIERS PROVIDE THE PROGRAMS AND SERVICES “AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS. PSAFE AND ITS AFFILIATES, LICENSORS AND OTHER SUPPLIERS CANNOT GUARANTEE THE INTEGRITY OF DATA. WITHOUT LIMITING THE FOREGOING, THIS DISCLAIMER APPLIES WITH RESPECT TO ANY PAID PROGRAM OR SERVICE AS WELL AS TRIAL ACCESS TO PROGRAMS OR SERVICES.
8.2. The Licensee accepts the sole responsibility for any loss and/or damage, including loss of User Generated Content and/or data, caused by possible incompatibilities, changes, errors, file deletions, malfunctions, and problems that may occur in the Licensee’s device as well as on their hardware, software, systems, applications, files, functions, code sequences and other programs, including but not limited to anti-virus programs and storage programs or services as a result of the use of the Programs or Services, or updates of the same, performed by the Licensee.
8.3. In no event, shall PSafe be responsible for any error or malfunction caused by elements external to the functionality of the licensed Programs, including hardware or software. PSafe also shall not be responsible in cases where the Programs or Services have been used in a different manner than specified by PSafe, or in any other abusive, negligent or inappropriate manner (including, but not limited to, use outside the recommended environment) or by third-party users of the license granted herein to the Licensee, whereby the Licensee shall be responsible for the use by such third parties and for all consequences resulting from such use.
8.4. PSafe’s Programs may provide, or third parties may provide, search results or other links to other sites on the Internet or other resources. As PSafe has no control over such sites and resources, you acknowledge and agree that PSafe is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible for any content, advertising, products or other materials present or available from such sites or resources. The User acknowledges and agrees that PSafe shall not be responsible, directly or indirectly, for any loss or damage caused or alleged caused by or in connection with the use of or reliance on such content, goods or services available on or through any such site or resources, or for the collection of user data or information by such sites or resources.
8.5. PSafe guarantees neither the location, even if approximate, of Android devices that have DFNDR / PSafe DFNDR / DFNDR Security application installed, nor success in the search and location procedure. User acknowledges and agrees that the DFNDR / PSafe DFNDR / DFNDR Security application is an auxiliary tool and does not replace the procedures that the User should perform with law enforcement authorities, especially in case of robbery or theft of devices. On Android devices, the “Anti-Theft” features of the DFNDR / PSafe DFNDR / DFNDR Security application will not work if the respective application is not installed, updated, and active on the device. Even with these conditions, User acknowledges and agrees that the success of the “Anti-Theft” features depends on items under control of third-parties (including the User), that PSafe does not control or influence, such as (but not limited to): the device being powered on and/or with remaining battery power, an active connection between the device and the data network (including, in the case of paid networks, an active account with a positive balance linked to the device), and map data or other location information (which comes from third-party services) that may not be available in all areas or may contain incomplete or inaccurate data.
8.6. PSafe does not guarantee the recovery of content and/or data that is stored or transmitted through the Services. PSafe does not inspect the content and/or data that is stored or transmitted through the Programs and/or Services. It is the sole responsibility of the User to ensure that the content and/or data that is stored through the Programs and/or Services does not violate copyrights of third parties, and is not illegal or in breach of PSafe’s rules and policies. The User shall indemnify and hold harmless PSafe, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of the content of stored data.
8.7. PSafe neither guarantees to extend the battery usage of Android devices that use the PowerPRO / DFNDR Battery Application, nor guarantees success of the procedures to extend the battery “life”. User acknowledges and agrees that the PowerPRO / DFNDR Battery Application is an auxiliary tool and does not replace the standard procedures that the User should perform to extend battery usage. The features of the PowerPRO / DFNDR Battery Application do not work if the Application is not installed, updated, and active on the device. Even with these conditions, User acknowledges and agrees that the success of PowerPRO / DFNDR Battery features depends on items under the control of third-parties (including the User), that PSafe does not control or influence, such as (but not limited to): device activity (including making calls), temperature of the device and its environment, usage and quality of the GPS signal and/or other radios (Bluetooth, Wi-Fi, etc.), and the use of other applications on the device (even if they are open in the background).
8.8. PSafe does not guarantee the accuracy of the facial recognition software used in DFNDR Vault. User acknowledges and agrees that use of the facial recognition function is an auxiliary tool and does not replace the procedures that the User should perform with law enforcement authorities, especially in case of robbery or theft of devices. User acknowledges and agrees that the success of the facial recognition feature depends on items under control of third-parties (including the User), that PSafe does not control or influence, such as (but not limited to): the device being powered on and/or with remaining battery power, an active connection between the device and the data network (including, in the case of paid networks, an active account with a positive balance linked to the device), a well-functioning user-facing camera on the device, lighting, angle of image, and the functionality of the third-party software development kit imbedded in DFNDR Vault.
8.9. You are responsible for the security of your password, PIN, pattern, fingerprint, and/or faceprint (“Passwords”) and for keeping your Account with the Programs and/or Services secure. You should keep your Passwords and/or encryption key for your Account secure because without them you may lose access to your data. You are solely responsible and liable for any activity that occurs under your Account, including by anyone who uses your Account. If there is any unauthorized use or access to your Account, you must let us know immediately. We are not responsible for any loss caused by unauthorized use of or access to your Account; however, you may be liable for any losses we or others suffer because of the unauthorized use. WE DO NOT HAVE ACCESS TO PASSWORDS AND CANNOT RECOVER YOUR ENCRYPTED DATA IF YOU FORGET THE PASSWORDS FOR ANY PASSWORD MANAGEMENT FEATURE OR PRODUCT.
- High Risk Environments.
9.1. The Programs and Services are neither designed nor intended for use in hazardous environments that require fail-safe performance, such as the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, weapons or defense systems, life support systems, or any other context in which the failure of the software could result in death, injury or serious damage to property or the environment. PSafe disclaims any express or implied guarantee of the suitability of the Programs and Services to these types of activities.
10.1. These Agreement and Licensee’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by Licensee without PSafe’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. PSafe may freely assign this Agreement. The terms and conditions set forth in this Agreement shall inure to the benefit of and be binding upon permitted assignees.
11.1. These Programs are distributed on the Internet. The Licensee may only use these Programs on Licensee’s device(s). They may not be used on devices that are not the property of the Licensee or are borrowed, rented, gifted, donated or transferred to/from another User.
11.2. Licensee agrees that it will not (and will not authorize any employee or third party to) (i) reproduce, modify, distribute, publish, rent, lease, sublicense or assign, disclose, transfer or make available to any third party any portion of the Programs or Services (or any related documentation) in any form; (ii) reverse engineer, decompile, or disassemble any portion of the Programs or Services, or otherwise attempt to decrypt, extract or derive source code for, or any algorithms or data structures embodied within, the Programs, Services or any parts thereof; (iii) use the Programs or Services in order to build a similar or competitive product or service; (iv) publish or disclose to any third party any performance or benchmark tests or analyses, the results of audits or ethical hacks, or other non-public information relating to the Programs or Services or the use thereof, except as may be authorized by PSafe in this Agreement or otherwise in writing; or (v) use the Programs or Services for purposes not expressly authorized or on unauthorized devices, equipment, or networks. Licensee shall preserve and shall not remove any copyright or other proprietary notices in the Programs, Services, and documentation and all copies thereof.
11.3. Specific to the Call Blocker feature and the identification or categorization of phone numbers (the “Call Blocker Information”), Licensee agrees that it will not (i) use any Call Blocker Information for marketing purposes, (ii) compile the Call Blocker Information in a database (other than Licensee’s device’s address book) and store such data for any future use; (iii) use any Call Blocker Information for tortious purposes, including to stalk, harass, or threaten any individual or business; (iv) publish, transmit, distribute or resell any Call Blocker Information, or (v) store Call Blocker Information via physical media or otherwise data-mine or aggregate any Call Blocker Information for any purpose outside the scope of Licensee’s use of PSafe’s product per this agreement.
- Third-Party Cloud Storage Providers.
- Limitation of Liability.
13.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LICENSEE AGREES THAT NEITHER PSAFE NOR ITS AFFILIATES, LICENSORS, OR OTHER SUPPLIERS SHALL BE RESPONSIBLE FOR ANY LOSS OR DAMAGE TO LICENSEE OR THIRD PARTIES CAUSED BY FAILURE OF THE PROGRAMS OR SERVICES TO FUNCTION OR FOR LOSS OR INACCURACY OF DATA, INCLUDING PERSONAL DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY. IN NO EVENT WILL PSAFE OR ITS AFFILIATES, LICENSORS, OR OTHER SUPPLIERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING LOST PROFITS, IN CONNECTION WITH THE USE OF THE PROGRAMS, SERVICES, OR OTHER MATERIALS PROVIDED ALONG WITH THE PROGRAMS AND SERVICES OR IN CONNECTION WITH ANY OTHER CLAIM ARISING FROM THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PSAFE’S AND ITS AFFILIATES’, LICENSORS’, AND OTHER SUPPLIERS’ AGGREGATE CUMULATIVE LIABILITY UNDER OR RELATING TO THIS AGREEMENT (INCLUDING THE PROGRAMS AND SERVICES) SHALL NOT EXCEED THE GREATER OF (A) THE TOTAL AMOUNT PAID TO PSAFE BY LICENSEE DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN WILL REMAIN IN EFFECT.
- Dispute Resolution.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with PSafe and limits the manner in which you can seek relief from us.
14.1. Applicability of Arbitration Agreement. Except where the language requiring arbitration in this Section 14 is explicitly prevented by applicable law, you agree that any dispute or claim relating in any way to your access or use of the Programs or Services, or to any aspect of your relationship with PSafe, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or PSafe may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).
IF YOU AGREE TO ARBITRATION WITH PSAFE, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST PSAFE ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST PSAFE IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
14.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to: PSafe Tecnologia S.A., Caixa Postal 11592, Avenida Nossa Senhora de Copacabana 540, Loja A, AC Copacabana, 22020-970, Rio De Janeiro, RJ, Brazil. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/ all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/ . JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
14.3. Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and PSafe. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
14.4. Waiver of Jury Trial. YOU AND PSAFE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and PSafe are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified herein. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
14.5. Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER LICENSEE. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth herein.
14.6. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with PSafe.
14.7. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if PSafe makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to PSafe.
14.8. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and PSafe agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.
15.1. The Licensee knows and accepts that PSafe may pursue legal proceedings if the Licensee does not follow the terms of this Agreement. PSafe reserves the right to terminate automatically the current Agreement without notice if the Licensee fails to comply with any term or condition herein.
15.2. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
15.3. The Programs, Services and related technology may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee will not use, export, import, or transfer PSafe products, services or technology except as authorized by applicable laws. Licensee will comply with these laws and regulations and shall not, without prior government authorization of the applicable government entity, export, re-export, or transfer PSafe products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
15.4. Where PSafe requires that Licensee provide an e-mail address, Licensee is responsible for providing PSafe with Licensee’s most current e-mail address. In the event that the last e-mail address Licensee provided to PSafe is not valid, or for any reason is not capable of delivering to Licensee any notices required/ permitted by this Agreement, PSafe’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. Licensee may give notice to PSafe at the address set forth below. Such notice shall be deemed given when received by PSafe by letter delivered by nationally recognized delivery service (i.e., FedEx or DHL) or first class postage prepaid mail at such address.
PSafe Tecnologia S.A.
Caixa Postal 11592
Avenida Nossa Senhora de Copacabana 540, Loja A
Rio De Janeiro, RJ, Brazil
15.5. Neither PSafe nor its affiliates, suppliers or licensors will be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.