PREMIUM SERVICE AGREEMENT

Please read this Premium Service Agreement (this “Agreement”). This Agreement states your rights and obligations and the rights and obligations of iolo technologies, LLC (“iolo”) relating to any Services that you purchase from iolo. If you do not want to be bound by this Agreement, you must not purchase any Services. If you do purchase any Services, this Agreement will be a binding contract between you and iolo.

1. DEFINITIONS

Capitalized terms used in this Agreement have the meanings stated in this Section or elsewhere in this Agreement.

“INCIDENT”

Incident” means (1) in the case of Services for troubleshooting, the interaction between iolo or its authorized agents (“Service Provider“) and you to identify the specific problem that you described when you first request that troubleshooting Service and (2) in the case of Services for tuning up your computer or improving its performance, a single use of an iolo software product to perform such Services.

“SERVICE TERM”

The “Service Term” for any Services means the period of time during which you are entitled to receive those Services.

“SERVICES”

“Services” means any services described on the iolo website at www.iolo.com/products/iolo-premium-services/ (the “iolo Portal“).

“SET-UP FEE”

Set-Up Fee” means any fee charged to you to initiate Services, as specified on the iolo Portal.

2. ORDERS

You may order Services at the iolo Portal or by any other means described at the iolo Portal. Once your payment for the Services is successfully made, your Service Term will begin, and iolo will send you an email, letter or other communication (as determined by iolo in its discretion) confirming your purchase and providing you any information you need to receive the Services. iolo may, in its discretion, offer automatic renewal plans for any of the Services. If iolo offers and you select automatic renewal for any Services, your credit card, debit card or other means of payment will be automatically charged on the date that your Service Term ends, and a new Service Term for the Services will begin (provided that the charge is accepted). If iolo offers automatic renewal, it will also provide you instructions for cancelling automatic renewal. The iolo Portal or the notice iolo provides to confirm your purchase will state or tell you how to obtain those instructions. You will not be charged for any automatic renewal that you cancel in accordance with those instructions at least five (5) days before the beginning of the applicable renewal Service Term.

3. SERVICES

The iolo Portal states what is covered by or included in any Services that you purchase and the Service Term for those Services. Service Provider will provide the Services in any manner and using any means of communication reasonably selected by iolo. iolo anticipates that, in most cases, Service Provider will attempt problem diagnosis and a solution over the telephone or through online chat or email.

You may purchase (1) Services that entitle you to a specified number (one or more) of Incidents (“Per-Incident Services“) or (2) Services that entitle you to an unlimited number of Incidents over a twelve (12) month period (whether purchased with a one-time payment or on a monthly basis)(“Term Services“).

If you purchase Per-Incident Services, then the Service Term for those Services will be ninety (90) days. That means you must use all of the Incidents that are included in any Per-Incident Service purchase within ninety (90) days after you pay for those Per-Incident Services. You will forfeit your right to receive any Incidents that you do not use during that ninety (90) day period. Except as stated below under “REFUND POLICY” (Section 7), iolo will not give you any refund of the fee (or any portion of the fee) that you paid for any Per-Incident Services that you do not use.

If you purchase Term Services on a monthly basis, you must commit to make payment for twelve (12) months before opting-out of the Services. For Term Services that are purchased on a monthly basis, you will be charged a one time, non-refundable Set-Up Fee. If you renew the Term Services that are purchased on a monthly basis, then you will not be charged an additional Set-Up Fee.

You may find the current Per-Incident Services Fees and the Current Term Services Fees as set forth above under the iolo Portal.

4. USER RESPONSIBILITY AND CONDITIONS TO SERVICE

In connection with obtaining Services, you agree that:

  • Service Provider may provide advice and instructions to you in connection with the Services. You are responsible for following any of that advice and those instructions.

  • If you request support for a problem you are having with your computer, Service Provider can provide Services relating to that problem only if it is reproducible on a single system, i.e., one central processing unit with its workstations and other peripherals.

  • You must have knowledge regarding the hardware system, any software involved, and the facts and circumstances surrounding the Incident;

  • The full system, including software and hardware, must be available to you and accessible by you without limit during any telephone discussions, live chat, or other interactions with Service Provider.

  • Service Provider may require remote access to your computer via the Internet. Service Provider may need to transfer software to your computer (via the Internet) and install that software on your computer to allow that remote access. You are responsible for having a broadband Internet connection that is active while you are interacting with the Service Provider and for cooperating with the transfer and installation of any such software. You hereby authorize Service Provider to remotely access your computer in connection with the Services.

5. EXCLUSIONS FROM “SERVICES”

“Services” shall not include the following:

  • Assistance regarding any problems caused by any malfunction of your computer or any other device;

  • Assistance regarding any problems attributable to defects or malfunctions in your network, power source or to your provider of Internet access;

  • Assistance regarding problems attributable to software that iolo does not support; and

  • Anything not stated on the iolo Portal as being covered by or included in the Services you purchase.

6. NO WARRANTY

The Services, and all information or materials provided to you by the Service Provider in connection with the Services, are provided AS IS . iolo makes no warranties. You agree not to rely on any statement made by any Service Provider or set forth on the iolo Portal or otherwise as a warranty from iolo. You acknowledge and understand that Service Provider may not be able to resolve any problems you are having with your computer or improve the performance of your computer.

7. REFUND POLICY

You may request a refund by contacting Service Provider at the phone number provided to you at the time of your purchase of Services. Such requests for refunds will be honored only if received by the Service Provider within the time periods stated in this section. Service Provider will not refund any fee (or portion of any fee) except as stated in this section.

During the applicable Service Term, you may request a refund for a Per-Incident Service within five (5) days of your use of the Per Incident Service if the Service Provider was not able to identify the issue for which the Per-Incident Service was paid. You may request a refund for Term Services within fourteen (14) days after the Service Term for those Term Services begins, except that, (1) if you renew any Term Services, iolo will not refund any fee (or portion of any fee) paid for the renewal Service Term if you use any of the Services at any time during the renewal Service Term and (2) if, before requesting a refund for Term Services, you use the Term Services to identify an issue, you must pay the Per-Incident Service fee for Service as a pre-condition to receiving a refund of the Term Services fee. Set-Up Fees will not be refunded if, before requesting a refund for Term Services, you use the Term Services in any manner.

References in this Agreement to numbers of days include all days, including weekends and holidays.

8. SOFTWARE

If you receive any software from the Service Provider, or Service Provider installs or instructs you to install any software on your computer, in connection with or as part of the Services (“Related Software“), your rights and obligations relating to that Related Software will be as stated in any associated end user license agreement that accompanies that Related Software or that is presented to you before or in connection with the transmission or installation of that Related Software. If no associated end user license agreement accompanies the Related Software or is presented to you before or in connection with the transmission or installation of the Related Software, or if such end user license agreement for any reason does not govern your rights and obligations relating to the Related Software, then your rights and obligations relating to the Related Software will be as follows:

  • You have the nonexclusive right to install and use the Related Software solely on the computer(s) for which you purchased Services. You have no other rights with respect to the Related Software.

  • You agree not to decompile, disassemble or otherwise reverse engineer the Related Software. You acknowledge that the Related Software includes confidential, proprietary and trade secret information.

  • The Related Software is provided AS IS, without any warranties.

  • You acknowledge that the Related Software is licensed to you and not sold. iolo or its suppliers / licensors retain title to all copies of the Related Software, including the copy installed on your computer.

  • You have no right to use the Related Software to provide any service to anyone or to copy or transfer the Related Software.

  • Any updates or upgrades that iolo may provide for the Related Software are part of the Related Software and subject to this Agreement.

  • You will not export, re-export or divert the Related Software in contravention of the United States export control laws, including the export administration regulations.

  • iolo may terminate your right to use the Related Software if you violate this Agreement. Upon such termination, you must destroy all copies of the Related Software in your possession or under your control.

  • Sections 9, 10, 16, 17, 18, 19 and 20 of this Agreement apply to the Related Software, your use of the Related Software, and iolo’s provision to you of the Related Software or any rights in the Related Software.

9. LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY LAW, NEITHER IOLO NOR ITS AFFILIATES NOR ITS LICENSORS OR SUPPLIERS WILL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OR CORRUPTION OF DATA, LOSS OF USE OR LOST PROFITS, OR REPLACEMENT COSTS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES OR RELATED SOFTWARE OR YOUR USE OF OR INABILITY TO USE THE SERVICES OR RELATED SOFTWARE, EVEN IF IOLO OR ITS AFFILIATES OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL IOLO’S OR ITS AFFILIATES’ OR ITS LICENSORS’ OR ITS SUPPLIERS’ AGGREGATE LIABILITY FOR ANY CLAIM(S) UNDER THIS AGREEMENT OR RELATING TO THE SERVICES OR RELATED SOFTWARE OR YOUR USE OF THE SERVICES OR RELATED SOFTWARE, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS YOU PAID TO IOLO FOR THE SERVICES OR RELATED SOFTWARE TO WHICH THE CLAIM(S) RELATES. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.

10. DATA LOSS OR CORRUPTION

iolo is not responsible for any loss or corruption of data or software on your computer. iolo strongly recommends that you frequently and regularly backup your data and software.

11. UNAVAILABILITY OF SERVICES

Services may be temporarily unavailable for support or maintenance or as a result of factors beyond iolo’s reasonable control. Temporary unavailability will not be a breach of this Agreement or cause iolo to have any liability or obligation to you.

12. PRIVACY POLICY

Information that you provide to iolo about yourself is subject to iolo’s privacy policy available at http://www.iolo.com/company/legal/privacy/ (the “Privacy Policy“). Please read the Privacy Policy before you buy any Services. You irrevocably consent to iolo’s use and disclosure of your personal information to the extent permitted under the Privacy Policy.

13. THIRD PARTY SOFTWARE

As part of the Services, Service Provider may suggest that you acquire, install and use certain software sold or licensed by other companies (“Third Party Software“). Even if Service Provider assists you in the acquisition, installation, and/or use of Third Party Software, (1) you understand that iolo does not sell or license that Third Party Software to you, (2) you must agree to any applicable terms and conditions stated by the third party company that sells or licenses the Third Party Software before installing or using the Third Party Software and (3) you will be solely responsible for complying with those terms and conditions. iolo makes no representation or warranty regarding any Third Party Software.

To the extent that Service Provider provides you Services relating to Third Party Software or equipment, you must ensure that receiving those Services does not violate the terms and conditions under which you licensed or purchased that Third Party Software or equipment. iolo makes no warranty that it is an authorized service provider for any Third Party Software or equipment; it is your sole responsibility to determine if additional rights are required for the Service Provider to provide Services relating to any Third Party Software or equipment, and, if so, to acquire those rights. You acknowledge that iolo’s provision of Services relating to Third Party Software or equipment may void any warranty made by the supplier of that Third Party Software or equipment.

14. THIRD PARTY SERVICES

As part of the Services, Service Provider may suggest that you obtain certain services from other Companies (“Third Party Services“). Even if Service Provider assists you in the acquisition and/or use of Third Party Services, (1) you understand that iolo does not provide or sell the Third Party Services to you, (2) you must agree to any applicable terms and conditions stated by the Company that does sell or provide the Third Party Services before using the Third Party Services and (3) you will be solely responsible for complying with those terms and conditions. iolo makes no representation or warranty regarding any Third Party Services.

15. TERMINATION OR SUSPENSION

iolo may terminate the Services if any of the following events occurs:

  • Your credit or debit card charge for the Services is reversed or payment for the Services is for any other reason not received;

  • Your breach of this Agreement;

  • iolo is ordered by any Court or other governmental agency or law enforcement to cease providing the Services;

  • iolo determines that you are abusing any Services; or

  • iolo receives any claim that the Services (or iolo’s provision of the Services) infringes or misappropriates any intellectual property or proprietary right of any third party.

Sections 6, 8, 9, 10, 12, 13, 14, 16, 17, 18, 19 and 20 of this Agreement will remain in effect and enforceable after any termination.

16. LIMITATIONS ON ACTIONS

Any claim by you or iolo against the other under or relating to this Agreement must be commenced within one (1) year after the cause of action arose or it shall be forever waived and barred.

17. SEVERABILITY

If any provision of this Agreement is held invalid or unenforceable, all other provisions contained in this Agreement shall remain in full force and effect (including any valid and enforceable part of any provision that is in part valid and enforceable and in part invalid or unenforceable).

18. MODIFICATION

If iolo revises the terms stated in this Agreement under which it offers Services (which may include changes to existing terms, addition of new terms, or deletion of existing terms), then such revised terms will apply to any Services that you purchase after iolo makes such revised terms available for review through the iolo Portal. Thus, you are responsible for reading this Agreement each time you purchase Services. You should not assume that the terms that governed a prior purchase of Services will apply without modification to subsequent purchases of Services.

19. RESOLUTION OF DISPUTES: BINDING ARBITRATION; NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS

  • Arbitration of Any And All Disputes (Other Than Certain Specified Intellectual Property Claims and Small Claims). .
    • “Dispute” as used in this Section 19 means any dispute arising out of or in any way related to this Agreement, any amendments or addenda to this Agreement, or the subject matter of this Agreement, including but not limited to any contract, tort, statutory or equity claims that relate in any way to (1) this Agreement, (2) the Services, (3) any Related Software, (4) any transaction that relates in any way to any of the foregoing, (5) any claims, statements, promises, descriptions, representations or warranties made in connection with any of the foregoing or any such transaction, and (6) the use or disclosure of personal information obtained by Company in connection with the Services or any such transaction; provided, however, that any claims specifically described in paragraph 19(a)(viii) below will not be included in the definition of Dispute.
    • This Section 19 shall apply to the resolution of Disputes. In the event of any Dispute, the parties are encouraged to attempt to resolve the Dispute by informal means. If the parties are not able to do so, the Dispute will be resolved only by binding arbitration.
    • Arbitration is the referral of a dispute to one or more impartial persons for a final and binding determination. Any Dispute between iolo on the one hand and you and/or any other user on the other hand will be subject to binding arbitration; provided, however, that you have the right to litigate any Dispute in small claims court, if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the Dispute, are satisfied. You agree to bring a Dispute in small claims court only in the county of your residence or Los Angeles, California.
    • The parties expressly agree that there shall be no jury trial or right to a jury trial, or right to any other proceeding to resolve any Dispute in any court. In the event of any Dispute, both parties agree that this Agreement will be governed, both procedurally and substantively, by the Federal Arbitration Act, 9 U.S.C. sections 1-9 (“FAA”) to the maximum extent permitted by applicable law.
    • All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties, and any party shall have the right to prevent any actual or threatened breach of this confidentiality provision by temporary, preliminary or permanent injunctive or declaratory relief in an appropriate court of law.
    • The parties expressly agree that any Dispute is personal to them, and any such Dispute shall only be resolved on an individual basis. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither party agrees that a Dispute can be brought as a class or representative action outside of arbitration, or on behalf of any other person or persons. The parties agree that that a Dispute may only be resolved through an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding.
    • The arbitration of the Dispute will be administered by the American Arbitration Association (“AAA”) or, in the event the AAA declines or is unable to administer the arbitration, by an arbitration forum or arbitrator that you and iolo mutually agree upon. If, after making a reasonable effort, you and iolo are unable to agree upon an arbitration forum or arbitrator, the AAA or a court having proper jurisdiction will appoint an arbitration forum or arbitrator. The arbitration will be conducted in accordance with the AAA’s Commercial Arbitration Rules (“Commercial Rules“) and, when deemed appropriate by the arbitration forum or arbitrator, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Consumer Procedures“), or the appropriate rules of any alternative arbitration forum selected by you and iolo or appointed by a court, subject to the following modifications:
      • The arbitration will be conducted before a single arbitrator who will be a licensed attorney or a former judge and will have at least 10 years of legal experience in the resolution of commercial disputes.
      • As limited by the FAA, the terms of this Agreement, and the applicable AAA rules, the arbitrator will have the exclusive power and jurisdiction to make all procedural and substantive decisions concerning the Dispute; provided however, that this does not include: (a) the power to determine the question of arbitrability, which power the parties agree shall be vested solely in a court of competent jurisdiction; or (b) the power to conduct a class arbitration or a representative action, which is prohibited by the terms of this Agreement as stated above. The arbitrator may only conduct an individual arbitration, and may not consolidate more than one person’s claims and may not preside over any form of representative or class proceeding, or any proceeding on behalf of or involving more than one person or persons.
      • The parties may take discovery through interrogatories, depositions and requests for production that the arbitrator determines to be necessary, with the caveat that each party shall have the right to take the deposition of at least one person for at least one day.
      • In making any award, the arbitrator will be restricted by the Limitation of Liability provisions in this Agreement (Section 9), and will not have jurisdiction to make an award to any party to the arbitration contrary to the Limitation of Liability provisions; provided however that if the enforceability of any of these restrictions is limited by the applicable substantive law or by the AAA rules, that restriction will only be enforced to the extent permitted by such law or rules.
      • The prevailing party in any of the following matters (without regard to the Limitation of Liability provisions) will be entitled to recover its reasonable attorneys’ fees and costs incurred: (i) a motion which any party is required to make in the courts to compel arbitration of a Dispute; (ii) any appeal of an arbitration award, whether to the arbitrator or the courts, for the purpose of vacating or modifying the award; or (iii) any action to enforce the confidentiality provisions stated herein.
      • iolo will pay the amount of any arbitration costs and fees charged by the AAA, subject to the right of iolo to request that the arbitrator allocate the ultimate responsibility for that fee in a fair and reasonable manner. Unless the arbitrator finds that you are economically unable to pay a share of the arbitrator’s fee or that it is otherwise inappropriate for you to do so, the arbitrator ultimately may decide that you are responsible for some portion of that fee in the arbitrator’s discretion.
    • The AAA rules are available from the AAA, which can be contacted by mail at 120 Broadway, Floor 21, New York, New York 10271, by telephone at (800) 778-7879, or through its website at www.adr.org.

      The following claims by you, any other user or iolo shall not be subject to binding arbitration and shall not be submitted to arbitration: (1) claims of infringement or misappropriation of any United States or foreign copyright, patent, trade secret, trademark, service mark or trade dress and (2) claims alleging violations of Title 17 of the United States Code, Sections 1201 and/or 1202, or of any similar foreign law. For any claims not subject to binding arbitration, neither you nor iolo nor any Other User will be bound by any decision or award of any arbitrator in connection with the resolution or decision of any question of fact or law required to resolve such claim, including, but not limited to, questions required to decide or rule with respect to the infringement, misappropriation, validity, enforceability or ownership of any copyright, patent, trade secret, trademark, service mark or trade dress or with respect to any remedy or relief at law or in equity for any such infringement or misappropriation or for any violation of such Sections 1201 and/or 1202.

  • With the exception of the provision above that the enforceability of this Section 19 of Resolution of Disputes is governed both procedurally and substantively by the FAA to the maximum extent permitted by applicable law, this Agreement otherwise will be construed and enforced in accordance with the laws of the State of California and of the United States of America applicable to contracts entered into and performed in California to the maximum extent permitted by law.

20. ENTIRE AGREEMENT; AMENDMENT; WAIVER

This Agreement constitutes the entire agreement between you and iolo with respect to the subject matter of this Agreement and supersedes any and all prior or contemporaneous oral or written communications relating to that subject matter. This Agreement will not be amended except by a writing signed by you and iolo. iolo’s failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. No waiver of any provision of this Agreement or of any rights or obligations of either you or iolo shall be effective, except pursuant to a writing signed by the party or parties waiving compliance, and any such waiver shall be effective only in the specific instance and for the specific purpose stated in that writing.