BIOSAgentPlus End User License Agreement

IMPORTANT: PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN THE LEGAL TERMS AND CONDITIONS THAT YOU AGREE TO WHEN YOU USE THE SOFTWARE OR SERVICE OFFERED BY ESUPPORT.COM, INC. YOU WILL NOT HAVE THE ABILITY TO DOWNLOAD AND EXECUTE THE SOFTWARE AND USE THE SERVICE UNTIL YOU HAVE READ AND ACCEPTED ALL OF THE TERMS SET FORTH IN THIS END USER LICENSE AGREEMENT. BY INSTALLING AND/OR USING THE SOFTWARE, YOU (1) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS END USER LICENSE AGREEMENT AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE CUSTOMER, AND TO BIND THAT COMPANY TO THESE TERMS. THE TERM 'YOU' REFERS TO THE INDIVIDUAL OR A LEGAL ENTITY, AS APPLICABLE, THAT REGISTERS FOR OR USES THE SOFTWARE. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, DO NOT INSTALL OR USE THE SOFTWARE.

YOUR ACCESS TO AND USE OF THE SOFTWARE IS CONDITIONED UPON YOUR COMPLIANCE WITH THE TERMS OF THIS END USER LICENSE AGREEMENT. A TRIAL OFFERING OF THE SOFTWARE MAY BE PROVIDED TO YOU FOR YOUR USE ONLY IN ACCORDANCE WITH THIS AGREEMENT.

ANY INFORMATION THAT ESUPPORT.COM, INC. OBTAINS ABOUT YOU OR OTHER INDIVIDUALS OR YOUR COMPUTER(S) THROUGH YOUR USE OF THE SOFTWARE AND SERVICE SHALL BE GOVERNED BY THE ESUPPORT.COM, INC. PRIVACY POLICY, AS MAY BE AMENDED FROM TIME TO TIME. BY USING THE SOFTWARE AND SERVICE, YOU CONSENT TO THE COLLECTION AND PROCESSING OF THIS INFORMATION AS DESCRIBED IN THE ESUPPORT.COM, INC. PRIVACY POLICY.



This End User License Agreement ('Agreement') is an agreement between you (an individual or a corporation or other business entity, as the case may be) and eSupport.com, Inc. ('eSupport.com').

The BIOSAgentPlus service (the 'Service') involves the installation of software ('Software') on your personal computer that scans ('Scans') the computer to identify missing and out-of-date device drivers and identify your computer's BIOS, and upon paying a subscription fee, enables you to access and download (a) third-party drivers and driver updates (the 'Driver Updates') and (b) third-party or eSupport.com, Inc. BIOS updates, during the subscription period.

A. BIOSAGENTPLUS SCAN SOFTWARE
1.GRANT OF LICENSE: Upon your acceptance of the terms and conditions of this Agreement, and if you do not purchase a subscription for the Service, eSupport.com, Inc. grants you a limited, internal-use-only, non-exclusive, non-transferable, non-sub-licensable and revocable license to install and use one copy of the Software (in object code form) to perform Scans on one (1) computer. You understand that, following a Scan, you will not be able to access and download Driver Updates or BIOS updates without purchasing a subscription to the Service. Any rights not expressly granted to you in this Agreement are reserved by eSupport.com, Inc. and, if applicable, its suppliers.


2.OBLIGATIONS: You shall not, and shall not permit any third party to, use the Software for commercial purposes of any kind, engage in any of the restrictions set forth in Section B.2 or breach the provisions set forth in Section B.3.


B. SUBSCRIPTION SERVICE
1.Grant of License: Upon your acceptance of the terms and conditions of this Agreement and payment of the applicable subscription fee for the Service, eSupport.com, Inc. grants you a limited, internal-use-only, non-exclusive, non-transferable , non-sub-licensable and revocable license to install and use the Software (in object code form) and the Service to perform Scans and to access and download Driver Updates and BIOS updates. The Service is licensed for your internal use only and you may install the Software and use the Service on multiple computers, but only up to the number of computers specified in the particular subscription you purchase. You will only be entitled to one (1) BIOS update per computer during the subscription period. Your account and the Service may be suspended if you (a) attempt to use the Service on more computers than your subscription allows for and (b) do not upgrade your subscription to accommodate the additional computers. Any rights not expressly granted to you in this Agreement are reserved by eSupport.com, Inc. and, if applicable, its suppliers. eSupport.com, Inc. reserves the right, at any time in its sole discretion, to modify the features or functionality of the Software or Service for any reason. In addition, eSupport.com, Inc. may change the provisions of this Agreement from time to time, without notice. However, if eSupport.com, Inc. makes any material change to the Software, Service or this Agreement, eSupport.com, Inc. will notify you through the Service or via email. After notification by eSupport.com, Inc., your continued use of the Software and Service is your acceptance of the terms of any change(s).


2.End User Obligations: You hereby agree to the following requirements and restrictions, which shall survive any termination or expiration of this Agreement:

i.you shall not transfer, sublicense, sell, resell, assign, distribute, rent, or lease the Software or Service, in any form, to any other party;
ii.you shall not alter, remove, disable or suppress the display of any copyright, trademark, trade name, logo or trade dress included as part of the Service;
iii.you shall not copy or reproduce the Software, in whole or in part;
iv.you shall take all reasonable steps to protect the Software and Service from unauthorized reproduction, publication, disclosure, or distribution;
v.you shall not disassemble, decompile, reverse engineer, or transmit the Software or Service in any form or by any means;
vi.you shall not use the Service by providing a false identity or pretending to be another person;
vii.you shall not take part in any action that may breach eSupport.com, Inc.'s intellectual property rights in the Service;
viii.you shall only install the Software and use the Service on computers that you own and only for non-commercial purposes, and the Software and Service shall not be used on computers owned by other people or businesses;
ix.you shall not under any circumstance share or distribute your Username and Password with non-Service subscribers or any other party; doing so will result in the cancellation of your subscription without refund;
x.you shall not create any derivative works from the Software or Service (in whole or in part);
xi.you shall not impede or interrupt the Service in any way;
xii.you shall not publish any benchmarking or similar type of analysis without the prior written consent of eSupport.com, Inc.;
xiii.you shall back up the important files that reside on your computer(s) on a regular basis;
xiv.if applicable, you shall ensure your employees and all persons who have the authorized right to use the Service have had the terms of this Agreement made known to them;
xv.you shall install updates on your computer when prompted to ensure up-to-date Service;
xvi.you shall permit regular and uninterrupted communication (including access through firewalls) with the Internet in order to enable the Service; and
xvii.you shall comply with all applicable laws, including without limitation, all applicable local, state, national and foreign laws, treaties, regulations, ordinances and directives.


3.Ownership and Intellectual Property Rights: eSupport.com, Inc. and its suppliers own all right, title and interest, including all worldwide copyrights, in the Service and the Software, including all copies of the Software. The Service and the Software and all related materials are copyrighted and are protected by the laws of the United States and other countries, and by international treaty provisions. Title to all copies of the Software, and all intellectual property rights therein (including but not limited to patents, pending patent applications, trademarks, copyrights, trade secrets or other intellectual property rights), shall remain with eSupport.com, Inc. and its suppliers. Unless expressly authorized in this Agreement, you shall have no right to (nor will allow any third party to) sell, assign, lease, transfer, encumber, or otherwise suffer to exist any lien or security interest on the Service or the Software. You acknowledge and agree that this Agreement does not convey on to you any intellectual property or other ownership interests in the Service or the Software.


4.Third Party Intellectual Property: All Driver Updates and, to the extent not provided by eSupport.com, Inc., BIOS updates are the intellectual property of the applicable third parties supplying the Driver Updates and BIOS updates. You understand that when you access and download a Driver Update or BIOS update through the Service, you will be subject to the license agreement of the supplier of the Driver Update or BIOS update. Similarly, if you install a BIOS update provided by eSupport.com, Inc., you will be subject to the terms and conditions of a license agreement separate from this Agreement for such update. eSupport.com, Inc. is not responsible for any damage that downloaded Driver Updates or BIOS updates may cause to your PC.


5.License Fee; Refunds: You are not authorized to use the Service for accessing and downloading Driver Updates or BIOS updates until valid payment of the applicable subscription fee has been made. All fees shall be made in U.S. dollars. You may, under certain circumstances, be eligible to receive a refund for all or part of your subscription fee under eSupport.com, Inc.'s refund policy for the Service.


6.Updates; New Features: You acknowledge that eSupport.com, Inc. is not required to update and maintain the Service or Software. eSupport.com, Inc. may notify you of improvements, enhancements, modifications, revisions, error corrections, and new features and functions (collectively, 'Updates') from time to time. In addition, you acknowledge that eSupport.com, Inc. may offer optional features, functionality, services and support for or relating to the Service for fees that are in addition to any subscription fees you have paid for the Service. Any such features, functionality and services purchased by you, as well as all Updates, shall become part of the Service and be governed by the terms of this Agreement.


C. GENERAL
1.Term: This Agreement is effective upon your acceptance of this Agreement and shall expire upon the earlier to occur of the end of the term of the subscription you purchased or you uninstalling the Software from your computer(s). eSupport.com, Inc. shall have the right to terminate this Agreement at any time if you breach any provisions of this Agreement. Upon expiration or termination, you shall uninstall the Software and cease using the Service, and each party will remain obligated under this Agreement for those parts of the Agreement relating to ownership, warranties, limitation of liability, governing law, obligations upon expiration or termination, and any other applicable provisions which by their nature would survive any such expiration or termination of this Agreement.


2.Warranty Disclaimer: THE SERVICE AND SOFTWARE ARE PROVIDED 'AS IS' WITHOUT ANY WARRANTIES (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR NON-INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PARTY IN ANY COUNTRY, OR THAT THE SERVICE WILL ACHIEVE SPECIFIC RESULTS, OPERATE WITHOUT INTERRUPTION, OR BE DEFECT OR ERROR FREE. IN ADDITION, ESUPPORT.COM, INC. MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO ANY DRIVER UPDATES OR BIOS UPDATES ACCESSIBLE AND DOWNLOADABLE VIA THE SERVICE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE.


3.Limitation of Liability: IN NO EVENT WILL ESUPPORT.COM, INC. BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST REVENUE, PROFIT OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES), HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE AND THE SOFTWARE, EVEN IF ESUPPORT.COM, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF ESUPPORT.COM, INC., WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE AMOUNT PAID BY YOU FOR YOUR MOST RECENT SUBSCRIPTION FOR THE SERVICE.


4.Entire Agreement. This Agreement is the entire agreement relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification of this Agreement will be binding, unless in writing and signed or otherwise accepted by an authorized representative of each party.


5.English Language. This Agreement was originally written in English. If this Agreement is translated into any other language, the translation shall be for review purposes only and have no legal effect. The English language version of this Agreement shall control and shall be binding on the parties to this Agreement.


6.Governing Law; Miscellaneous. This Agreement shall be governed by California law, excluding its conflict of law principles. Any action under or relating to this Agreement brought by you shall be brought solely in the state and federal courts located in California with sole venue in the courts located in Santa Clara County and each party hereby submits to the personal jurisdiction of such courts. You shall not assign this Agreement without the prior written consent of eSupport.com, Inc. and any assignment without this consent is null and void. If any provision of this Agreement is held to be unenforceable, this Agreement will remain in effect with the provision omitted, unless omission of the provision would frustrate the intent of the parties, in which case this Agreement will immediately terminate. Any cause of action arising out of or related to this Agreement must be brought by you no later than one (1) year after the cause of action has occurred.


7.Export Regulations. The Software (and any updates thereto) delivered under this Agreement are subject to United States export control laws and may be subject to export or import regulations in other countries. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. You agree to comply strictly with all such laws and regulations and acknowledge that the Software may not be exported or re-exported (i) into (or to a national or resident of) any United States embargoed country or (ii) to anyone on the United States Treasury Department's list of Specially Designated Nationals or the United States Commerce Department's Table of Denial Orders. By installing and using the Software and the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such lists. You shall indemnify and hold eSupport.com, Inc. harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney's fees) arising from or relating to any breach by you of your obligations under this section. Your obligations under this section shall survive the expiration or termination of this Agreement.


8.General Public License / Lesser General Public License. Certain components of the Software may be subject to the GNU GPL or LGPL terms and conditions available for viewing at http://www.gnu.org/copyleft/gpl.html and http://www.gnu.org/copyleft/ lesser.html or as otherwise designated. To the extent you receive Software under this Agreement which contains components subject to the GPL or LGPL terms, you agree to be bound by all the terms and restrictions therein including keeping all copyright notices intact for the duration of your use of the Software and modifying and/or redistributing such components only in accordance with the terms of the GNU GPL or LGPL terms. Such components are provided 'AS IS' 'WITHOUT WARRANTY OF ANY KIND' per the terms of the GPL/LGPL. You can get a copy of the GNU GPL or LGPL by writing to the Free Software Foundation at 59 Temple Place, Ste 330, Boston, MA 02111-1307. Some components of the Software may be made available by eSupport.com, Inc., in source code format (human readable format), to any third party upon request for the cost of duplication or distribution, for a period of three (3) years from this distribution. This distribution period begins on the date that this software (in source code format) is first available for sale from eSupport.com, Inc. This source code must be used according to the license terms that accompany the source code. Requests should be submitted in writing to: eSupport.com, Inc., 120 Water Street, Suite 405, North Andover, MA 01845. The version of the Software for which source code is being requested must be identified in the request.


9.Third Party Software. Certain portions of software code provided along with the Software may be subject to 'open source' or 'free software' licenses ('Third Party Software'). The Third Party Software is not subject to the terms and conditions of this Agreement. Instead, each item of Third Party Software is licensed under the terms and conditions of the license that accompanies such Third Party Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede the terms and conditions of, any applicable license for the Third Party Software, including any rights to copy, modify or distribute Third Party Software under the applicable license.


10.Third Party Software Warranty Disclaimer. THIRD PARTY SOFTWARE, IF ANY, IS PROVIDED UNDER THIS AGREEMENT ON AN 'AS IS' BASIS, WITHOUT WARRANTY (EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT OR NON-INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PARTY IN ANY COUNTRY. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF ANY THIRD PARTY SOFTWARE IS WITH YOU. SHOULD ANY THIRD PARTY SOFTWARE PROVE DEFECTIVE IN ANY RESPECT, YOU (NOT THE INITIAL DEVELOPER OR ANY OTHER CONTRIBUTOR) ASSUME THE COST OF ANY NECESSARY SERVICING, REPAIR OR CORRECTION. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF ANY THIRD PARTY SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.


11.Change of Terms: eSupport.com, Inc. reserves the right to amend the terms of this Agreement at will by (a) providing written notification to you of any such amendments; and/or by (b) displaying term changes or an amended Agreement to you during the installation or use of the Service.
BAP EULA v.2, 11-05-09