Symantec Safe Site Services Agreement
THIS Symantec Safe Site SERVICES AGREEMENT ("AGREEMENT") IS ENTERED INTO BETWEEN Symantec (AS DEFINED BELOW), AND THE ENTITY YOU REPRESENT IN EXECUTING THIS AGREEMENT ("YOU"). THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS APPLICABLE TO YOU IN USING THE SERVICE. BY CLICKING "ACCEPT" OR BY USING THE SERVICE, YOU AGREE TO BECOME A PARTY TO, AND BE BOUND BY, THESE TERMS.
ALL REFERENCES TO "Symantec" IN THIS AGREEMENT SHALL MEAN Symantec, INC. AND ITS WHOLLY-OWNED SUBSIDIARIES.
IF YOU ARE A CUSTOMER OF A RESELLER (AS DEFINED HEREIN), YOU REPRESENT AND WARRANT THAT YOUR RESELLER IS AUTHORISED TO APPLY FOR, ACCEPT, INSTALL, MAINTAIN AND, IF NECESSARY, REMOVE THE SERVICES OR Symantec Safe Site ON YOUR BEHALF. BY AUTHORIZING YOUR RESELLER AS SUCH, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICES.
IF YOU ARE A RESELLER AND ARE ACTING AS THE AUTHORISED REPRESENTATIVE OF A CUSTOMER IN APPLYING FOR THE SERVICES, YOU REPRESENT AND WARRANT AS SET FORTH IN SECTIONS 8.2 AND 8.3. IF YOU ARE A RESELLER AND ARE APPLYING FOR YOUR OWN Symantec Safe Site, THIS AGREEMENT APPLIES TO YOU IN ITS ENTIRETY, EXCEPT FOR SECTION 8.3.
"Application" means a request submitted to Symantec to enroll for Symantec Trust Services.
"Intellectual Property Rights" means any and all now known or hereafter existing rights associated with intangible property, including but not limited to registered and unregistered, United States and foreign copyrights, trade dress, trade names, corporate names, logos, inventions, patents, patent applications, software, know-how and all other intellectual property and proprietary rights (of every kind and nature throughout the universe and however designated).
"Repository" means the collection of documents located at the link for the repository which may be accessed from the homepage of the website from which you applied for the Services.
"Reseller" means an internet service provider, a systems integrator, a web host, a technical consultant, an application service provider, or other entity that obtains the Services for re-sale.
"Services" means the Symantec Safe Site and related lifecycle activities, malware monitoring and remediation support services, and, if applicable, such other security services delivered in connection with the Seal and upon which the display of the Seal is conditioned, as indicated in Symantec's published materials describing the Services.
"Symantec© Trust Center" means the web-based portal through which you will manage your Symantec Safe Site account.
"Symantec Safe Site" or "Seal" means an electronic image featuring a Symantec mark intended for display on Your Website. The image indicates to a website visitor that you have purchased the Services.
"Symantec Trust Standard" means the standard established and enforced by Symantec to denote an adequate level of trust and security of the website upon which the display of the Seal is conditioned.
"Your Website" means a website owned or controlled by you, or a website for which your right to use has been sufficiently proven by you to Symantec's satisfaction, including the common name (e.g. hostname.domain.com) you have identified in your Application and host names hyperlinked from that common name.
- Description of Services.
The Services for which you are enrolling consist of malware scanning and monitoring of Your Website, remediation support with respect to any malware detected on Your Website, the Symantec Safe Site, and access to the service management features and functionalities of the Symantec Trust Center. Provision of the Services are subject to Symantec's ability to verify your identity and your rights to the domain name of Your Website using Symantec's established authentication practices.
- Processing the Application and Service Commencement.
Upon receipt of your Application, Symantec will grant you access to the Symantec Trust Center and will begin processing your Application. Upon verification of Your Website, Symantec will commence the Services. You must utilize the Symantec Trust Center to obtain status updates and to set up email notifications concerning the Services. When, in Symantec's sole opinion, Your Website meets the Symantec Trust Standard, Symantec will send you an email with a link to the Seal installation instructions. You shall install the Seal on Your Website in accordance with the Seal license terms provided during installation and also published in the Repository.
- Use Restrictions.
You shall not use the Services for or on behalf of any organization or domain other than the organization and domain named in your Application. You must have the proper authorization and/or rights to the domain of Your Website to permit Symantec to provision the Services. If the information provided in your Application is incorrect or has changed, or if your organization name and/or domain name registration has changed, you must immediately notify Symantec.
- Seal Suspension and Termination.
Symantec may, at any time, suspend display of the Seal if, at its sole opinion: (i) Your Website fails to meet the Symantec Trust Standard (e.g., if the Service detects malware on Your Website); or (ii) you fail to perform your obligations under the terms of this Agreement. Symantec shall suspend the Seal until such failure is remediated to its satisfaction. Further, Symantec retains the right to terminate the Services and Seal at any time without notice if Symantec discovers that the information provided in your Application has changed and is no longer valid.
- Term of Service.
Unless earlier terminated in accordance with the terms hereof, this Agreement shall continue in effect until the natural expiration of the Services. In the event of a material breach of this Agreement (excluding any breaches for which an exclusive remedy is expressly provided), the non-breaching party may terminate this Agreement if such breach is not cured within thirty (30) days after written notice thereof.
- Obligations Upon Termination or Expiration.
Upon expiration or termination of the Service, you shall permanently remove your Seal from Your Website on which it is installed and shall not use it for any purpose thereafter. Any termination of this Agreement shall not relieve either party of any obligations that accrued prior to the date of such termination. Sections 7, 8, 9, 11, and 13 through 24 shall survive the termination of this Agreement for any reason.
- REPRESENTATIONS AND WARRANTIES
8.1 Symantec's Representations and Warranties. Symantec represents and warrants that it has the corporate power and authority to enter into, and to fully perform its obligations under, this Agreement.
8.2 Your Representations and Warranties. You represent and warrant to Symantec that (i) you have the corporate power and authority to request the Services in connection with the domain indicated in your Application and to enter into, and perform your obligations under, the Agreement; (ii) all information you provide in your Application for the Services is true and correct at the time of submission, and such information (including any domain name or e-mail address) does not infringe the Intellectual Property Rights of any third party; (iii) you will use the Services in accordance with this Agreement only; and (iv) you will not make any unauthorized representation or warranty to any third party relating to the Service. In the event that Your Website is managed, and/or hosted, by a third party service provider, you warrant that you have obtained the consent and authorization from such third party service provider necessary for Symantec to perform the Services. You agree to facilitate any necessary communications and exchanges of information between Symantec and your third party service provider.
8.3 Reseller Representations and Warranties. Further to section 8.2, Reseller represents and warrants to Symantec and anyone who relies on the Seal that (i) Reseller has obtained the authority of its customer to enter into this Agreement on behalf of its customer and/or to bind its customer to this Agreement; (ii) Reseller shall comply with and procure its customer's compliance with this Agreement; and (iii) Reseller shall not display a Symantec Safe Site on any website that it hosts unless such website is licensed to do so.
- Fees and Payment Terms.
As consideration for the Services, you shall pay Symantec the applicable service fees set forth on our website at the time of your selection, or, if applicable, upon receipt of an invoice from Symantec. All fees are due immediately and are non-refundable, except as otherwise stated below. All sums due and payable that remain unpaid after any applicable cure period herein will accrue interest as a late charge of 1.5% per month or the maximum allowed by law, whichever is less. The fees stated are exclusive of tax. All taxes, duties, fees and other governmental charges of any kind (including sales, services, use, and value-added taxes, but excluding taxes based on the net income of Symantec) which are imposed by or under the authority of any government on the service fees charged herein shall be borne by you and shall not be considered a part of, a deduction from or an offset against such service fees. All payments due to Symantec shall be made without any deduction or withholding on account of any tax, duty, charge, penalty, or otherwise except as required by law in which case the sum payable by you in respect of which such deduction or withholding is to be made shall be increased to the extent necessary to ensure that, after making such deduction or withholding, Symantec receives and retains (free from any liability in respect thereof) a net sum equal to the sum it would have received but for such deduction or withholding being required. This section does not apply to you if you purchased the Services from a Reseller.
- Refund Policy.
If you are not completely satisfied with the Services for any reason, you must request, within thirty (30) days of enrollment, that Symantec terminate the Services and provide you with a refund. Following the initial 30-day period, you are entitled to a refund only if Symantec has breached a warranty or other material obligation under this Agreement. This Section does not apply to you if you purchased the Services from a Reseller.
- Proprietary Rights.
You acknowledge that Symantec and its licensors retain all Intellectual Property Rights and title in and to all of their confidential information or other proprietary information, products, services, and the ideas, concepts, techniques, inventions, processes, software or works of authorship developed, embodied in, or practiced in connection with the services provided by Symantec hereunder, including without limitation all modifications, enhancements, derivative works, configurations, translations, upgrades, and interfaces thereto (all of the foregoing, "Symantec Works"). The Symantec Works do not include your pre-existing hardware, software, or networks. Except as otherwise expressly provided herein, nothing in this Agreement shall create any right of ownership or license in and to the other party's Intellectual Property Rights, and each party shall continue to independently own and maintain its Intellectual Property Rights.
- Modifications to Services and/or the Symantec Trust Standard.
Symantec may (i) revise the terms of this Agreement; and/or (ii) change part of the Services provided herein or the Symantec Trust Standard at any time. Any such change will be binding and effective thirty (30) days after publication of the change on Symantec's websites, or upon notification to you by e-mail. If you do not agree with the change, you may terminate this Agreement 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 Service term. By continuing to use the Services after such change, you agree to abide by and be bound thereby.
Symantec will treat and process the data you provide in your Application in accordance with the Symantec Privacy Statement, as amended from time to time and accessible from the home page of the website from which you enrolled for Services. You agree and consent that Symantec may place in your Seal information that you provide in your Application. Symantec may also (i) publish your Seal and information contained therein in the Repository and other third-party sites; and (ii) use such information for the purposes set out in this Agreement and in the Symantec Privacy Statement. If you are a Reseller acting on behalf of a customer, you warrant that you have all necessary rights (including consents) to provide your customer information to Symantec. You are aware that Symantec will process and/or transfer the information you provide in your Application in the United States and in other jurisdictions where Symantec maintains a presence. For further information on processing of customer data, please see our Privacy Statement.
- Disclaimers of Warranties.
Symantec DOES NOT WARRANT THAT ALL PAGES OF YOUR WEBSITE WILL BE SCANNED OR THAT THE SERVICE WILL DETECT ALL MALWARE ON YOUR WEBSITE. Symantec DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. EXCEPT FOR THE EXPRESS LIMITED WARRANTY SET FORTH IN SECTION 8.1 ABOVE, Symantec DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTION OF CUSTOMER REQUIREMENTS, NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. TO THE EXTENT JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN REPRESENTATIONS, WARRANTIES OR GUARANTEES, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
You agree to indemnify, defend and hold harmless Symantec, its directors, shareholders, officers, agents, employees, successors and assigns from any and all third party claims, suits, proceedings, judgments, damages, and costs (including reasonable attorney's fees and expenses) arising from (i) the breach of any of your warranties, representations and obligations under this Agreement; (ii) any falsehoods or misrepresentations of fact you make on the Application; (iii) any infringement of an Intellectual Property Right of any person or entity in information or content provided by you; and (iv) malware on Your Website. Symantec shall promptly notify you of any such claim, and you shall bear full responsibility for the defense of such claim (including any settlements); provided however, that (a) you keep Symantec informed of, and consult with Symantec in connection with the progress of such litigation or settlement; (b) you shall not have any right, without Symantec's written consent, which consent shall not be unreasonably withhold, to settle any such claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgement of, any liability or wrongdoing (whether in contract, tort, or otherwise) on the part of Symantec, or requires any specific performance or non-pecuniary remedy by Symantec; and (c) Symantec shall have the right to participate in the defense of a claim with counsel of its choice at its own expense. The terms of this Section 15 will survive any termination of this Agreement.
- Limitations of Liability.
THIS SECTION 16 APPLIES TO LIABILITY UNDER CONTRACT (INCLUDING BREACH OF WARRANTY), TORT (INCLUDING NEGLIGENCE AND/OR STRICT LIABILITY), AND ANY OTHER LEGAL OR EQUITABLE FORM OF CLAIM. IN THE EVENT OF ANY CLAIM, ACTION, SUIT, ARBITRATION, OR OTHER PROCEEDING RELATING TO SERVICES PROVIDED UNDER THIS AGREEMENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, Symantec SHALL NOT BE LIABLE FOR (I) ANY LOSS OF PROFIT, BUSINESS, CONTRACTS, REVENUE OR ANTICIPATED SAVINGS; OR (II) ANY INDIRECT OR CONSEQUENTIAL LOSS. Symantec'S TOTAL LIABILITY FOR DAMAGES SUSTAINED BY YOU SHALL NOT EXCEED TWO TIMES THE AMOUNTS PAID FOR THE SERVICES DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. NOTWITHSTANDING THE FOREGOING, Symantec'S LIABIILTY SHALL NOT BE LIMITED UNDER THIS SECTION 16 IN CASES OF PERSONAL INJURY OR DEATH ARISING FROM Symantec'S NEGLIGENCE OR WITH RESPECT TO ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED BY APPLICABLE LAW (INCLUDING MANDATORY LAWS OF ANY APPLICABLE JURISDICTION). TO THE EXTENT JURISDICTIONS DO NOT ALLOW CERTAIN LIABILITY LIMITATIONS, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
- Force Majeure.
Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder (excluding payment obligations) due to earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott or other similar events beyond the reasonable control of such party, provided that the party relying upon this Section 17 (i) gives prompt written notice thereof; and (ii) takes all steps reasonably necessary to mitigate the effects of the force majeure event; provided further, that in the event a force majeure event extends for a period in excess of thirty (30) days in the aggregate, either party may immediately terminate this Agreement upon written notice.
- Compliance with Law, Export Requirements, and Foreign Reshipment Liability.
Each Party shall comply with all applicable federal, state and local laws and regulations in connection with its performance under the Agreement. Without limiting the generality of the foregoing, each party agrees to comply with all export requirements ("Export Control"). Regardless of any disclosure made by you to Symantec of an ultimate destination of Certificates, software, hardware, or technical data (or portions thereof) supplied by Symantec ("Symantec Technology") and, notwithstanding anything contained in the Agreement to the contrary, you will not:
(i) modify, export, or re-export, either directly or indirectly, any Symantec Technology to any destination restricted or prohibited by Export Control, without first obtaining any and all necessary licenses from the government of the United States or any other country that imposes Export Control;
(ii) provide Symantec Technology to any proscribed party on the United States Treasury Department's Office of Foreign Asset Control list of "specially designated nationals and blocked persons", the United States Commerce Department's "denied parties list", the United States Commerce Departments "BIS Entity List" or such other applicable lists; or
(iii) export or re-export Symantec Technology, directly or indirectly, for nuclear, missile, or chemical/biological weaponry end uses prohibited by Export Control.
Symantec shall have the right to suspend performance of any of its obligations under the Agreement, without prior notice and without any liability to you if you fail to comply with this provision.
If any provision of this Agreement should be found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained shall not, in any way, be affected or impaired thereby.
- Governing Law.
Any disputes related to the services provided under this Agreement shall be governed in all respects by and construed in accordance with the laws of the Commonwealth of Virginia, United States of America, excluding its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
- Dispute Resolution.
To the extent permitted by law, before you invoke any dispute resolution mechanism with respect to a dispute involving any aspect of this Agreement, you shall notify Symantec, and any other party to the dispute for the purpose of seeking resolution. If the dispute is not resolved within sixty (60) days after the initial notice, then a party may proceed in accordance with the following:
(i) When each party to the dispute is a Canadian or U.S. resident or organization situated or doing business in Canada or the United States. All suits arising in connection with this Agreement shall be brought in the United States District Court for the Eastern District of Virginia or the state courts of Fairfax County, Virginia, U.S.A. The parties agree that such courts shall have exclusive in personam jurisdiction and the parties submit to the exclusive in personam jurisdiction and venue of such courts. The parties further waive any right to a jury trial regarding any action brought in connection with this Agreement.
(ii) Where one or more parties to the dispute is not a Canadian or U.S. resident or organization situated or doing business in Canada or the United States. All disputes arising in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) as modified as necessary to reflect the provisions herein by a panel of three (3) arbitrators. The place of arbitration shall be in Geneva, Switzerland, and the proceedings shall be conducted in English. The arbiters shall be chosen in accordance with the Rules of Arbitration and shall be knowledgeable in computer software law, information security and cryptography or otherwise having special qualifications in the field, such as a lawyer, academician, or judge in common law jurisdiction.
Nothing in this Agreement will be deemed as preventing either party from seeking injunctive relief (or any other provisional remedy) from any court having jurisdiction over the parties and the subject matter of the dispute as is necessary to protect either party's Intellectual Property Rights.
Except as stated otherwise, your rights under this Agreement are not assignable or transferable. Any attempt by your creditors to obtain an interest in your rights herein, whether by attachment, levy, garnishment or otherwise, renders this Agreement voidable at Symantec's option. Symantec may assign and subcontract its obligations under this Agreement to an entity which directly or indirectly controls, is controlled by, or is under common control with Symantec, Inc.
- Notices and Communications.
You will make all notices, demands or requests to Symantec with respect to this Agreement in writing to the "Contact" address listed on the website from where you purchased your Certificate, with a copy to: General Counsel, Symantec, Inc., 487 E. Middlefield Road, Mountain View, California, USA 94043. References to telephone numbers above shall mean 1-650-426-3400.
- Entire Agreement.
This Agreement, the Symantec Safe Site License Terms, and if you are a Reseller, your Reseller agreement with Symantec, constitute the entire understanding and agreement between Symantec and you with respect to the transactions contemplated, and supersedes any and all prior or contemporaneous oral or written representation, understanding, agreement or communication relating thereto. Terms and conditions in any purchase orders that are not included in or that conflict with this Agreement are null and void.
Symantec Safe Site Services Agreement Version 1.0 (February 2010)