If Customer is an individual using the Service for personal, family, or household purposes (a "Consumer"), these Terms provide that all disputes between Consumer and TrustedSite will be resolved by BINDING ARBITRATION. CONSUMER AGREES TO GIVE UP THE RIGHT TO GO TO COURT to assert or defend Consumer's rights under these Terms, except for matters that may be taken to small claims court. Consumer's rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and Consumer's claims cannot be brought as a class action. Please review the section below entitled "Dispute Resolution and Arbitration" for the details regarding Consumer's agreement to arbitrate any disputes with TrustedSite.
- "Devices" means computer hardware, network, storage, input/output, or electronic control devices, or software installed on such devices.
- "IPs" means Internet Protocol addresses.
- "Network Security Audits" are audits conducted to ascertain the compliance of Devices with certain security standards published on the applicable Website and to disclose security vulnerabilities and may include, but are not limited to, port scanning and port connections, evaluating services by checking versions and responses to certain requests, and crawling a website to perform testing of forms, application responses, or the confirm the existence of certain files.
The Service includes (but is not limited to) the provision of TrustedSite's McAfee SECURE certification service for websites, a service that performs Network Security Audits on websites, McAfee SECURE Safe Browsing Plug-In for Consumers, a browser extension that performs certain Network Security Audits to certain websites that the Consumer visits, and the TrustedSite website which allows Customers to post reviews and ratings regarding the security of certain websites and allows website owners to manage those reviews.
Customer must be at least 18 years of age to use the Service. By agreeing to these Terms, Customer represent and warrant to us that: (a) Customer are at least 18 years of age; (b) Customer have not previously been suspended or removed from the Service; and (c) Customer's registration and Customer's use of the Service is in compliance with all applicable laws and regulations. To the extent not prohibited by law, Customer is ineligible to subscribe to the Service if: (c) Customer is a competitor of TrustedSite or McAfee, Inc.; (d) Customer or its employees using the Service have been convicted of any computer or Internet related crimes; (e) Customer is more than sixty (60) days past due on any monies owed to TrustedSite; or (f) Customer is located in a region that is prohibited from using the Service by law.
Scope of License to Customer
- License Grant to Customer. The Service is licensed, not sold, to Customer for use only under these Terms. Subject to Customer's complete and ongoing compliance with these Terms and payment of all applicable fees, TrustedSite hereby grants Customer a personal, limited, revocable, non-transferable, non-exclusive, non-commercial, non-sublicensable license to: (i) download, install, and use the Browser Extensions on compatible authorized Devices that Customer owns or controls; and (ii) access and use the Websites; in each case solely for Customer's own use.
- License Limitations. Customer may not modify, alter, reproduce, or distribute the Service. Customer may not directly rent, lease, lend, sell, redistribute, or sublicense the Service. Customer may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the Service, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or the terms of any Third Party Service (defined below)), nor attempt to disable or circumvent any security or other technological measure designed to protect the Service or any content available through the Service. If Customer breaches these license restrictions, or otherwise exceeds the scope of the licenses granted in these Terms, then Customer may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights, and denial of access to the Service.
- Applicability to Updates. These Terms govern any updates provided to Customer by TrustedSite that replace or supplement the Service, unless the upgrade is accompanied by a separate license or revised Terms, in which case that license or the revised Terms will govern.
Subject to Customer's payment of all applicable fees, TrustedSite will use commercially reasonably efforts to provide support, whether on-line or by telephone, only during normal Pacific Standard Time working hours. Any additional support must be purchased by Customer under a separate agreement.
Network Security Audits
Customer hereby authorizes TrustedSite to perform Network Security Audits, on any Devices and IPs specified by Customer. Network Security Audits are performed with the assistance of TrustedSite employees or its appointed contractors, and may from time to time include additional probing and validation beyond the scope of our automated vulnerability scanning system. In certain cases, the exploitation of a vulnerability and/or minimal extraction of data from the target server may be conducted to support our security audit findings, or to illustrate a vulnerability to Customer.
Trademarks; Display of the McAfee SECURE Certification Image.
- The Service is provided to Customer from TrustedSite and TrustedSite shall be the merchant of record for any transactions in relation to the Service. The McAfee® and McAfee SECURE trademarks are used under license from McAfee, Inc. All rights reserved. McAfee and McAfee SECURE are either registered trademarks or trademarks of McAfee, Inc. in the United States and/or other countries.
- Subject to Customer's payment of all applicable fees and compliance with these Terms, TrustedSite may allow Customer to display the McAfee SECURE certification image while these Terms are in effect, solely in connection with the Service, in the manner directed by TrustedSite and as permitted by the functionality of the Service. Customer may only place the McAfee SECURE image on sites that are actively being scanned by the Service. The McAfee SECURE image shall at all times be served only from TrustedSite's designated servers and shall remain under the full control of TrustedSite. TrustedSite shall have the right to discontinue the serving of the McAfee SECURE image, if any Customer web-site, or other Device that is being scanned in connection with the Service, fails to pass TrustedSite's vulnerability audits for a period of 72 hours or longer. Should Customer discontinue the Service, Customer agrees to immediately remove all HTML source code supplied by TrustedSite from its servers and all McAfee SECURE or McAfee marks or references from its website(s) and other materials. Customer is prohibited from using the McAfee SECURE certification image for or on behalf of any other organization or in connection with any domain name and/or organization name other than those being scanned in connection with the Service, and enrolled and established under Customer's account.
- Customer acknowledges that McAfee, Inc. is the owner of, and TrustedSite has the necessary rights to the McAfee SECURE certification image and the goodwill associated therewith. Customer agrees that it will do nothing inconsistent with such rights, and that all use of the McAfee SECURE certification image by Customer shall inure to the benefit of and be on behalf of TrustedSite. Should Customer own (now or in the future) any goodwill in the McAfee SECURE certification image, Customer agrees that all such goodwill is assigned to the TrustedSite. Customer shall not apply to register any of the McAfee SECURE certification image—or any confusingly similar marks—with any trademark office.
- Customer further agrees that it has no power or right to and shall not, while these Terms are in effect or thereafter attack the title or any rights of Customer or its affiliates in or to the McAfee SECURE certification image.
If Customer chooses to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service ("Feedback"), then Customer hereby grants TrustedSite an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
Copyright and Intellectual Property
The Service is owned and operated by TrustedSite. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service ("Materials") provided by TrustedSite are protected by intellectual property and other laws. All Materials are the property of TrustedSite or our third-party licensors. Except as expressly authorized by TrustedSite, Customer may not make use of the Materials. TrustedSite reserves all rights not granted expressly in these Terms.
Fees and Automatic Renewal
Access to the Service, or to certain features of the Service, may require Customer to pay fees, and may provide Customer the option to activate recurring automatic payments for those fees. Before Customer pays any fees, including before activating or updating any recurring payments, Customer will have an opportunity to review the fees that Customer will be charged before accepting them. If Customer activates or updates recurring payments through the Service, Customers authorizes TrustedSite to periodically charge, on a going-forward basis and until cancellation, all accrued sums on or before the payment due date for the accrued sums. Customer may cancel recurring charges by emailing TrustedSite at support@McAfeeSECURE.com at least thirty (30) days prior to the end of Customer's current subscription period. Notwithstanding the foregoing, if Customer purchased the Service from a TrustedSite authorized reseller of the Service, the subscription for the Service will not automatically renew at the end of the purchased subscription period, but shall expire and require the purchase of a new subscription period in order for the Service subscription period to be renewed. Customer shall pay all sales and other taxes, however designated, which are levied or imposed by reason of the transactions contemplated hereby, except for taxes based on TrustedSite's net income. All fees are in U.S. dollars and are non-refundable. If TrustedSite changes the fees for the Service, including by adding additional fees or charges, Customer will be provided advance notice of those changes and the opportunity to accept the changes. If Customer does not accept the changes, TrustedSite may discontinue providing the Service to Customer. Unless otherwise agreed, TrustedSite accepts credit cards through our third party payment processor. Customer hereby authorizes TrustedSite to provide your payment details to its third party payment processor for processing payments.
Customer's Identity and Authority
- Customer agrees to provide current, accurate information in all electronic or hardcopy registration forms submitted in connection with the Service. Customer agrees not to impersonate or in any way misrepresent its affiliation or authority to act on behalf of any person, company, or other entity. By subscribing to the Service or accepting these Terms, Customer represents and warrants that Customer has all necessary rights to permit TrustedSite to perform the Service. Customer agrees to cooperate with TrustedSite in reasonable measures to verify the identity and authority of persons using the Service.
- To access most features of the Service, Customer must register for an account. When Customer registers for an account, Customer may be required to provide us with some information about Customer, such as Customer's email address or other contact information. Customer agrees that the information Customer provides is accurate and that Customer will keep it accurate and up-to-date at all times. When Customer registers, Customer will be asked to provide a password. Customer is solely responsible for maintaining the confidentiality of Customer's account and password, and Customer accepts responsibility for all activities that occur under Customer's account.
- Customer agrees not to provide access to the Service by: (i) allowing others to use its account; (ii) creating an account for someone who is not authorized to perform the role or view the information for which Customer have granted access; or (iii) failing to revoke access for those persons who are no longer authorized to access the Service for any reason. Customer will immediately notify TrustedSite of any unauthorized access from its account or the accounts of others for which Customer has administrative authority, or if Customer has reason to believe Customer's (or any other account) is no longer secure. Customer will not solicit another party's password for any reason. Customer will not access someone else's account, nor disrupt, interfere, or limit the functioning of the Service, or other's enjoyment of the Service.
- If Customer gains access to any information for which Customer is not authorized, by any method or means, or for any reason, Customer must report such access to TrustedSite immediately and destroy all electronic or hard copies of such information. Customer must report incidents by email with return receipt requested to email@example.com, or by calling (877) 302-9965.
By using the Service Customer agrees not to:
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- post, upload, send, or otherwise distribute any User Content (defined below) or other content that is unlawful, defamatory, libelous, inaccurate, or that TrustedSite deems to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
- interfere with security-related features of the Service, including by disabling or circumventing features that prevent or limit use or copying of any content;
- use or direct the Service to interact with IPs or Devices Customer is not expressly authorized to permit the Service to interact with;
- use the Service in such a way as to create unreasonable load on IPs or Devices;
- use the Service, directly or indirectly, to initiate, propagate, participate, direct or attempt any attack, hack, or crack, or send bandwidth saturation, malicious or potentially damaging network messages to any Device;
- use the Service or TrustedSite's Devices to perform any unlawful activity including but not limited to computer crime, transmission or storage of illegal content, or content or software in violation of intellectual property and copyright laws;
- interfere with the operation of the Service or any user's enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) directing bots, spiders, crawlers, or any other automated process at TrustedSite's computer systems or Devices; (iii) making any unsolicited offer or advertisement to another user of the Service; (iv) attempting to collect personal information about another user or third party without consent; or (v) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
- perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other account on the Service without permission, or falsifying Customer's age or date of birth;
- sell or otherwise transfer any rights granted under these Terms;
- attempt to, or assist or permit any third party in doing any of the acts described in this Section 6.
Any breach of the above covenants will result in immediate termination of Service and, if appropriate, referral to law enforcement authorities.
Third-Party Services, Third Party Fees, and Linked Websites
- Access to Third Party Services. The Service may provide Customer with access to third party websites, databases, networks, servers, information, software, programs, systems, directories, applications, or products or services (collectively, "Third Party Services"). TrustedSite does not have or maintain any control over Third Party Services, and is not and cannot be responsible for their content, operation, or use. By linking or otherwise displaying information from or providing access to any Third Party Services, TrustedSite does not give any representation, warranty, or endorsement, express or implied, with respect to the legality, accuracy, quality, or authenticity of content, information, or services provided by those Third Party Services.
Third Party Software
Software Customer downloads in connection with the Service may include certain third party software ("Third Party Software") provided under separate license terms (the "Third Party Terms"). Customer's use of the Third Party Software in conjunction with the Service in a manner consistent with these Terms is permitted, however, Customer may have broader rights under the applicable Third Party Terms, and nothing in these Terms is intended to impose further restrictions on Customer's use of the Third Party Software.
Disclaimers; No Warranties
- THE SERVICE IS PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. CUSTOMER UNDERSTANDS THAT ASSESSING COMPUTER SECURITY IS HIGHLY COMPLEX AND CHANGEABLE. CUSTOMER UNDERSTANDS THAT USE OF THE SERVICE IS AT CUSTOMER'S OWN RISK. TRUSTEDSITE, ITS OFFICERS, DIRECTORS AND EMPLOYEES ARE NOT RESPONSIBLE FOR CUSTOMER'S USE OF THE SERVICE OR ANY RESULTS THEREFROM. TRUSTEDSITE DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. TRUSTEDSITE MAKES NO WARRANTY THAT THE SERVICE WILL FIND ALL VULNERABILITIES IN CUSTOMER'S NETWORK OR SERVER(S), OR THAT THE SOLUTIONS SUGGESTED OR ADVICE PROVIDED WILL BE COMPLETE OR ERROR-FREE. TRUSTEDSITE DOES NOT WARRANT THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE IS ACCURATE OR COMPLETE OR THAT ANY INFORMATION PROVIDED THROUGH THE SERVICE WILL ALWAYS BE AVAILABLE. TRUSTEDSITE EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF CUSTOMER'S USE OF THE SERVICE.
- NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING TRUSTEDSITE OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. CUSTOMER ASSUMES ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM CUSTOMER'S USE OF OR ACCESS TO THE SERVICE, CUSTOMER'S DEALING WITH ANY OTHER USER OF THE SERVICE, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER USES THE SERVICE, AND USES, ACCESSES, DOWNLOADS, OR OTHERWISE OBTAINS MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT CUSTOMER'S OWN DISCRETION AND RISK, AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER'S PROPERTY, OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
- SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND CUSTOMER MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
- IN NO EVENT WILL TRUSTEDSITE BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO CUSTOMER'S ACCESS TO OR USE OF, OR CUSTOMER'S INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TRUSTEDSITE HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
- EXCEPT AS EXPRESSLY PROVIDED IN SECTION 33(d), THE AGGREGATE LIABILITY OF TRUSTEDSITE TO CUSTOMER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (I) THE AMOUNT CUSTOMER PAID TO TRUSTEDSITE FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO CLAIM; OR (II) $100.
- SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.
- EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Third Party Disputes
TRUSTEDSITE IS NOT AFFILIATED WITH ANY CARRIER, SERVICE PROVIDER, OR THIRD PARTY SERVICE, AND ANY DISPUTE CUSTOMER HAS WITH ANY CARRIER, SERVICE PROVIDER, THIRD PARTY SERVICE, OR OTHER THIRD PARTY, INCLUDING, WITHOUT LIMITATION, ANY OTHER USER OF THE SERVICE, IS DIRECTLY BETWEEN CUSTOMER AND THAT THIRD PARTY, AND CUSTOMER IRREVOCABLY RELEASES TRUSTEDSITE (AND OUR OFFICERS, DIRECTORS, AGENTS, SUBSIDIARIES, JOINT VENTURES AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THOSE DISPUTES.
- User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works ("User Content") and to publish User Content on the Service. Customer retains copyright and any other proprietary rights that Customer may hold in the User Content that Customer posts to the Service.
- Limited License Grant to TrustedSite. By posting or publishing User Content, Customer grants TrustedSite a worldwide, perpetual, non-exclusive, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute Customer's User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
- Limited License Grant to Other Users. By posting or sharing User Content with other users of the Service, Customer grants those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
- User Content Representations and Warranties. Customer is solely responsible for Customer's User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, Customer affirms, represents, and warrants that:
- Customer is the creator and owner of the User Content, or has the necessary licenses, rights, consents, and permissions to authorize TrustedSite and users of the Service to use and distribute Customer's User Content as necessary to exercise the licenses granted by Customer in this section, in the manner contemplated by TrustedSite, the Service, and these Terms; and
- Customer's User Content, and the use of Customer's User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause TrustedSite to violate any law or regulation.
- User Content Disclaimer. TrustedSite is under no obligation to edit or control User Content that Customer or other users post or publish, and will not be in any way responsible or liable for User Content. TrustedSite may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in TrustedSite's sole judgment violates these Terms or is otherwise objectionable. Customer understands that when using the Service Customer will be exposed to User Content from a variety of sources and acknowledges that User Content may be inaccurate, offensive, indecent, or objectionable. Customer agrees to waive, and do waive, any legal or equitable right or remedy Customer has or may have against TrustedSite with respect to User Content. TrustedSite expressly disclaim any and all liability in connection with User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, TrustedSite may investigate the allegation and determine in TrustedSite's sole discretion whether to remove the User Content, which TrustedSite reserves the right to do at any time and without notice. For clarity, TrustedSite does not permit copyright-infringing activities on the Service.
Customer agrees to indemnify, hold harmless, and defend TrustedSite, its officers, directors, employers, agents, suppliers, licensors, and third party information providers, or other related parties from and against all losses, damages, costs, and attorney's fees ("Claims") resulting from violation of these Terms or any action, whether intentional, malicious, inadvertent, wrongful or negligent, related to Customer's account, Customer's use of the Service or any other person or persons who uses Customer's user account. TrustedSite does NOT indemnify Customer against such Claims made against Customer by others as a result of Customer's use of the Service.
Digital Millennium Copyright Act
- DMCA Notification. TrustedSite complies with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If Customer has an intellectual property rights-related complaint about material posted on the Service, Customer may contact our Designated Agent at the following address:
ATTN: Legal Department (Copyright Notification)
116 New Montgomery St., Ste 200
San Francisco, CA 94105
- Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyright-protected work or other intellectual property right that is allegedly being infringed;
- a description of the material that allegedly is infringing and where it is located on the Service;
- Customer's address, telephone number, and email address;
- a statement by Customer that Customer has a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
- a statement by Customer that the above information in Customer's notice is accurate and that, under penalty of perjury, Customer is the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
- Repeat Infringers. TrustedSite will promptly terminate without notice the accounts of users that are determined by TrustedSite to be "Repeat Infringers." A Repeat Infringer is a user who has been notified of infringing activity or has had User Content removed from the Service at least twice.
Customer is in breach of these Terms if Customer fail to pay any amount owed to TrustedSite when due, subject to a 10 day grace period, or Customer fails to comply with these Terms. Unless otherwise stated, fees for the Service are due in advance and subject to payment terms in the invoice(s) for the Service, which are incorporated into these Terms by reference. If Customer is in default, TrustedSite may take any or all of the following actions to remedy the default and protect its interests: (a) declare all unpaid monies immediately due and payable; (b) terminate the Service; (c) take any other lawful action TrustedSite may deem appropriate to enforce Customer's obligations under these Terms. Customer agrees to pay costs and reasonable attorney's fees TrustedSite may incur enforcing its rights under this agreement.
Modification of Terms and the Service
TrustedSite may amend or alter these Terms from time to time. TrustedSite will notify Customer of any material changes to these Terms and will provide Customer with a copy of the revised Terms either by email address provided to TrustedSite or by any other suitable means. Customer may not continue to use the Service unless the revised Terms have been accepted and continued use of the Service after receiving the revised Terms constitutes Customer's acceptance of the revised Terms from the date the revised Terms entered into effect.
These Terms are governed by the laws of the State of California without regard to conflict of law principles that would result in the application of the laws of another jurisdiction. If a lawsuit or court proceeding is permitted under these Terms, then Customer and TrustedSite submit to the personal and exclusive jurisdiction of the state courts and federal courts located in San Francisco County, California for the purpose of litigating any dispute. We operate the Service from our offices in California, and make no representation that the Service is appropriate or available for use in other locations.
Term and Termination
- We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies Customer's rights or obligations, Customer must accept the modified Terms to continue to use the Service. Material modifications are effective upon Customer's acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms in effect at the time the dispute arose.
Dispute Resolution and Arbitration
If Customer is a Consumer, this Section 28 applies. If Customer is not a Consumer, all disputes will be handled in accordance with Section 25.
- Generally. In the interest of resolving disputes between Consumer and TrustedSite in the most expedient and cost effective manner, Consumer and TrustedSite agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. CONSUMER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THESE TERMS, CONSUMER AND TRUSTEDSITE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
- Exceptions. Despite the provisions of Section 28(a), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. Any arbitration between Consumer and TrustedSite will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting TrustedSite.
- Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail ("Notice"). TrustedSite's address for Notice is: TrustedSite, LLC, 116 New Montgomery St., Ste 200, San Francisco, CA 94105. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought ("Demand"). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, Consumer or TrustedSite may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Consumer or TrustedSite must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in Consumer's favor, TrustedSite will pay Consumer the highest of the following: (iii) the amount awarded by the arbitrator, if any; (iv) the last written settlement amount offered by TRUSTEDSITE in settlement of the dispute prior to the arbitrator's award; or (v) $1,000.
- Fees. If Consumer commences arbitration in accordance with these Terms, TrustedSite will reimburse Consumer for Consumer's payment of the filing fee, unless Consumer's claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in San Francisco County, California, but if the claim is for $10,000 or less, Consumer may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of Consumer's billing address. If the arbitrator finds that either the substance of Consumer's claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, Consumer agrees to reimburse TrustedSite for all monies previously disbursed by it that are otherwise Consumer's obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
- No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, CONSUMER AND TRUSTEDSITE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN CONSUMER'S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Consumer and TrustedSite agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding, to the fullest extent permitted under applicable law.
- Modifications to this Arbitration Provision. If TrustedSite makes any future change to this arbitration provision, other than a change to TrustedSite's address for Notice, Consumer may reject the change by sending us written notice within 30 days of the change to TrustedSite's address for Notice, in which case Consumer's account with TrustedSite will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes Consumer rejected will survive.
- Enforceability. If Section 28(f) is found to be unenforceable or if the entirety of this Section 28 is found to be unenforceable, then the entirety of this Section 28 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 25 will govern any action arising out of or related to these Terms. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
From time to time, TrustedSite may run special promotions for certain McAfee Secure merchants and partners ("Promotional Partner(s)") during certain specified periods of time ("Promotional Period(s)") as determined by TrustedSite, at its sole discretion. As part of these promotions, TrustedSite may provide the Service to Promotional Partners free of charge for a Promotional Period. During such Promotional Period, no incremental costs or fees will be incurred by a Promotional Partner. Promotional Partner agrees that TrustedSite is authorized to receive reports from partners and vendors of any merchant activity associated with the promotion during the Promotional Period and will take all reasonable steps to provide assurance to the partners and vendors of such authorization. Merchant and Promotional Partners understand and agree that TrustedSite may discontinue the Promotional Period at any time and a Promotional Partner or merchant may terminate pursuant to these Terms.