AVIRA SECURE BACKUP END USER LICENSE AGREEMENT (“EULA”)

IMPORTANT NOTICE
THIS IS A LEGAL AGREEMENT BETWEEN YOU (“YOU” OR “YOUR”) AND AVIRA (AS DEFINED BELOW) AND GOVERNS THE CONDITIONS UNDER WHICH YOU ARE ALLOWED TO ACCESS AND USE THE SOFTWARE (AS DEFINED BELOW). BEFORE DOWNLOADING, ACCESSING OR USING ANY PART OF THE SOFTWARE YOU SHOULD CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“EULA”) AS THEY GOVERN YOUR ACCESS TO AND USE OF THE SOFTWARE.

AVIRA IS WILLING TO LICENSE THE SOFTWARE TO YOU AS A CONSUMER (AS DEFINED BELOW) OR AS AN ENTREPRENEUR (COLLECTIVELY, “YOU”) ONLY IF YOU ACCEPT ALL OF THE PROVISIONS OF THIS EULA AND ITS RELATED TERMS AND CONDITIONS, HEREBY INCORPORATED BY REFERENCE INTO THIS EULA.  BY CLICKING THE “I AGREE” OR “YES” BUTTON, BY LOADING THE SOFTWARE OR BY OTHERWISE INDICATING ASSENT, YOU ACCEPT THIS EULA AND THIS EULA WILL BECOME A LEGAL AND ENFORCEABLE CONTRACT BETWEEN AVIRA AND YOU, AS AN INDIVIDUAL, IF YOU ARE A CONSUMER (AS DEFINED BELOW) OR BETWEEN AVIRA AND YOUR BUSINESS ENTITY, IF YOU ARE AN ENTREPRENEUR (AS DEFINED BELOW). 

IF YOU ARE LOCATED OUTSIDE THE UNITED STATES AND CANADA, IN ADDITION TO ALL THE OTHER TERMS OF THIS EULA, SECTION 12 APPLIES TO YOU.

TERMS

This EULA and the Terms and Conditions (as defined below), govern Avira’s grant of a Software license to you, including, any and all Updates and/or Upgrades provided after installation of the Software. 

  1. DEFINITIONS

 

    1. “Automatic Renewal” means a feature that provides for renewal of a License at the end of a License Term without the need of further notification from Avira or further action on your behalf.
    2. “Avira” means Avira, Inc., 330 Primrose Rd., Burlingame, CA 94010, USA, except if you are located outside the United States or Canada, Avira shall mean Avira Operations GmbH & Co. KG, Kaplaneiweg 1, 88069 Tettnang, Germany.
    3. “Consumer” means any natural person who is provided the Software for personal use or for use involving his/her family.
    4. “Customer” means a Consumer and/or Entrepreneur.
    5. “Device” means any electronic device that is able to process data.
    6. “Documentation” means written materials, in printed or electronic form, describing the features of the Software and/or Updates and Upgrades that are designed to assist you in effectively utilizing the Software, Updates and/or Upgrades. Such Documentation does not vary the terms of this EULA or associated Terms and Conditions.
    1. “Entrepreneur” means any natural person, legal entity or partnership, having legal capacity that is ordering or receiving or using the Software in association with and/or while performing its commercial, independent professional or other job-related duties rather than for personal or familial use.
    2. “Freeware” means any Software that is provided to the Customer free of charge. Avira may change or cancel the provision of Freeware at any time with or without notice.
    3. “Internet-Based Services” means online services Avira utilizes to allow you to store your content online (“Backed-up Data”). Avira may employ third parties to provide such online services and/or any parts thereof.
    4. “License” means the nature and scope of your right to use the Software and any ongoing Updates and/or Upgrades, as applicable, pursuant to the terms of this EULA and the Terms and Conditions, as may be amended and/or updated by Avira from time to time.
    5. “License Term” means the period for which a License to the Software has been granted and any renewal thereof. The License Term commences as soon as you have purchased and received access to the Software.
    6. “Multiple Use” means the simultaneous saving, storing and every other simultaneous use of the Software across numerous Devices, including but not limited to backing up and accessing Backed-up Data from different Devices.
    7. “Software” means Avira Secure Backup intended for use on Devices and includes any and all user Documentation, Internet-Based Services, Updates, Upgrades, and any and all additional accompanying services provided as may be provided by Avira via its website or alternative communication channels.
    8. “Terms and Conditions” mean the respective General Terms and Conditions of Business of Avira as available, in their most current version, on www.avira.com. The Terms and Conditions apply in addition to, and supplement the provisions of, this EULA. Any reference to “EULA” within the agreement shall also include the Terms and Conditions as applicable.
    9. “Updates and Upgrades” mean the updating of the Software.  Classification of the updating as an Update or Upgrade is at Avira’s sole discretion.

 

  1. LICENSE GRANT

 

    1. License Grant. Conditioned on your continued compliance with this EULA and the Terms and Conditions, Avira grants you a personal, revocable, limited, non-exclusive, non-transferable license for the Software for the duration of the License Term to activate, use and access the Software for personal or business purposes as expressly permitted in this EULA. For Software for which no special Licenses for Multiple Use are available according to the relevant product information, the License is restricted to a single copy of the Software. For Software whose product information provides special Licenses for Multiple Use, Multiple Use shall be permissible only if, and to the extent that, you purchased and were granted the relevant type or number of Licenses by Avira. The Software is protected by international copyright laws, treaties and other laws. Avira and, as applicable, its licensors own and retain all right, title and interest in and to the Software, including all copyrights, patents, trade secret rights, trademarks and other intellectual property rights. This EULA does not transfer to you any title to or in the Software. In the event of a conflict between the terms of this EULA and the Terms and Conditions, this EULA shall govern.
    1. Restrictions. The foregoing license is limited.  You may not use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, alter, license, sublicense, or commercially exploit the Software or any component thereof in any manner not expressly permitted by this EULA. In addition, you may not modify, translate, decompile, create any derivative work(s) of, copy, distribute, disassemble, broadcast, transmit, publish, remove or alter any proprietary notices or labels, license, sublicense, transfer, sell, mirror, frame, exploit, rent, lease, private label, grant a security interest in, or otherwise use the Software in any manner not expressly permitted in this EULA or cause any third party to do so. You are not permitted to remove or modify any references to copyright, the markings of other industrial property rights or serial numbers and other features that serve to identify the Software. Notwithstanding anything to the contrary, the Software may be passed on, copied or decompiled if this has been explicitly permitted or pursuant to legal provisions such as Sections 69 c No. 3, 69 d (2) and (3) and Section 69 e of the German Copyright Act (Urheberrechtsgesetz). In the event that you are permitted to reconvert, decompile or disassemble (referred to hereinafter as “Decompiling”) the Software, in order to attain interoperability with other computer programs pursuant to Section 69 e of the German Copyright Act, you must contact Avira at support@avira.com prior to Decompiling the Software and obtain the information necessary for such interoperability. If Avira provides this information without an inappropriate delay, you are not entitled to any Decompiling of the Software. 

 

    1. Third-party claims. You shall notify Avira without undue delay if a third party asserts claims against you, claiming the Software infringed and/or infringes such third party’s intellectual property rights (Rechtsmangel), and any documents or correspondence or other forms you receive associated with such claim must be turned over to Avira without undue delay.
    1. Feedback. Avira welcomes your feedback and suggestions about Avira's products, services or the Software. By transmitting any suggestions, information, material, or other content (collectively, “Feedback”) to Avira, you represent and warrant that such Feedback does not infringe or violate the intellectual property or proprietary rights of any third party (including, without limitation, patents, copyrights, or trademark rights) and that you have all rights necessary to convey to Avira and enable Avira to use such Feedback.  In addition, any Feedback received through the Software will be deemed to include a royalty-free, perpetual, irrevocable, transferable, non-exclusive right and license for Avira to adopt, publish, reproduce, disseminate, transmit, distribute, copy, use, create derivative works, display (in whole or in part) and otherwise fully exploit the Feedback worldwide, or act on such Feedback without additional approval or consideration, in any form, media, or technology now known or later developed for the full term of any rights that may exist in such content, and you hereby waive any claim to the contrary.

 

    1. Open-Source Software License. The Software may incorporate some or all of the following open-source software:
      1. Sparkle (<http://github.com/andymatuschak/Sparkle>) (Copyright (c) 2006 Andy Matuschak) as licensed under: (<http://github.com/andymatuschak/Sparkle/blob/master/License.txt>);
      2. Silk Icons (by Mark James) as licensed under the Creative Commons 3.0 as licensed under: (<http://creativecommons.org/licenses/by/3.0/legalcode>);
      3. zlib ((C) 1995-2010 Jean-loup Gailly and Mark Adler) as licensed under the zlib license (<http://www.zlib.net/zlib_license.html>);
      4. libcurl (<http://curl.haxx.se/>) (Copyright (c) 1996 - 2010, Daniel Stenberg, <daniel@haxx.se <mailto:daniel@haxx.se>>) as licensed under the cURL license (<http://curl.haxx.se/docs/copyright.html>).

 

The aforementioned list is for attribution, ownership, license notification and copyright notice purposes only. By agreeing to these licenses or using the Software, you accept and agree to comply with the terms of each of the open- source software licenses listed above, including any requirements for redistribution such as providing notifications of attribution, copyright and limitations of liability.

The open-source software may also be subject to the following or similar limitations of liability (the use of the word “software” below refers to the open-source software not the Avira Software as defined in this EULA):

(1) THIS SOFTWARE IS PROVIDED BY THE AUTHOR “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE AUTHOR BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; OR
 
(2) BECAUSE THE LIBRARY IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE LIBRARY, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING THE COPYRIGHT HOLDERS AND/OR OTHER PARTIES PROVIDE THE LIBRARY “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE LIBRARY IS WITH YOU. SHOULD THE LIBRARY PROVE DEFECTIVE, YOU ASSUME THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. IN NO EVENT UNLESS REQUIRED BY APPLICABLE LAW OR AGREED TO IN WRITING WILL ANY COPYRIGHT HOLDER, OR ANY OTHER PARTY WHO MAY MODIFY AND/OR REDISTRIBUTE THE LIBRARY AS PERMITTED ABOVE, BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE LIBRARY (INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE LIBRARY TO OPERATE WITH ANY OTHER SOFTWARE), EVEN IF SUCH HOLDER OR OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IF YOU DO NOT ACCEPT ALL OF THESE TERMS AND CONDITIONS WITH RESPECT TO THE OPEN-SOURCE SOFTWARE, YOU MAY NOT USE THE AVIRA SOFTWARE OR ANY OF ITS COMPONENTS.

  1. USER OBLIGATIONS.

 

    1. You may not, nor permit a third party to, use the Software in special risk areas that require error-free, permanent operation of relevant systems and in which the failure of the Software may result in a direct risk to life, body or health or in substantial damages to property or the environment (high risk activities and high availability activities, including but not limited to the operation of nuclear facilities, weapon systems, aviation navigation or communication systems, life support systems and equipment, machine and production processes of pharmaceuticals and food production).
    1. The setup of a functional hardware and software environment for the use of the Software shall be solely your responsibility. The same shall apply to regular data backup within your EDP system.

 

    1. You are solely responsible for any activity associated with your User ID and Password. If you become aware of any misuse of your account you must notify Avira  immediately.
    1. You shall not upload any malicious code, including without limitation, viruses, bots, Trojan horses, worms and the like into the Software or any component thereof.

 

    1. You shall not infringe any intellectual property rights of any party, including without limitation, sharing of copywritten material via the Software. You are solely responsible for the data and content stored using the Software. Avira will not inspect data you store, except as is unavoidable in order to provide support for your use of the Software or as allowed by applicable laws. Avira is not responsible for any of your violations associated with using the Software and will cooperate with any judicial authority that is authorized to inspect the data stored via your use of the Software. Avira may remove any illegal data as identified by any legitimate judicial supervisory authority.
    1. Where your improper use of the Software comes to Avira’s attention, in accordance with applicable laws, Avira may, in its sole discretion, remove any improper content, suspend or terminate your access to the Software, and/or cooperate with law enforcement authorities.

 

  1. COMPLIANCE WITH LAWS. You agree to abide by all applicable local, state, national, and international laws and regulations with respect to your use of the Software.  This EULA is also expressly made subject to any applicable export laws, orders, restrictions, or regulations; as such, you must comply with all domestic and international export laws and regulations that apply to the Software. Avira reserves the right to bring an action to prohibit or stop you from any unauthorised use of the Software, including but not limited to, claims for injunctive relief and damages. Your unauthorized use may lead to criminal prosecution under the relevant laws.
  1. LIMITED WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED “AS IS” AND AVIRA MAKES NO WARRANTY OF ANY KIND AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.  AVIRA ALSO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES RELATING TO NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY OR ABILITY TO INTEGRATE THE SOFTWARE WITH OTHER PRODUCTS. YOU ASSUME RESPONSIBILITY FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE SOFTWARE. WITHOUT LIMITING THE FOREGOING, AVIRA MAKES NO WARRANTY THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS, BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES, THAT THE SOFTWARE WILL MEET YOUR SPECIFIC REQUIREMENTS OR THAT THE SOFTWARE IS FIT FOR USE IN SPECIAL RISK AREAS.

 

  1. LIMITATION OF LIABILITY. You expressly absolve and release Avira from any claim of harm resulting from a cause beyond Avira's control, including, but not limited to, failure of electronic or mechanical equipment or communication lines, telephone or other connection problems, computer viruses, unauthorized access, theft, operator errors, severe weather, earthquakes, or natural disasters, strikes, or other labor problems, wars, or governmental restrictions. UNDER NO CIRCUMSTANCES SHALL AVIRA BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR DAMAGES FROM LOST PROFITS, LOSS OF GOODWILL, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR NEGLIGENCE OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR WORK STOPPAGE, LOSS OF DATA, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY OTHER DAMAGE OR LOSS.  IN NO EVENT SHALL AVIRA BE LIABLE FOR ANY DAMAGES, EVEN IF AVIRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

     
THE PROVISIONS OF SECTIONS 5 AND 6 SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

  1. PRIVACY.

 

    1. By entering into this EULA, you agree that the Avira Privacy Policy, as it exists at any relevant time, shall be applicable to you.  See www.avira.com. 
    1. Depending on your Device and the operating system on your Device, we may collect: your name, address, language preferences, email address, Device IMEI code, Device brand and model, battery status, version of Device OS, Device phone number, SIM number, network provider name, memory status, Device Internet Protocol ("IP") address, geo-information based on GPS/WIFI/Network location, and any other technical information needed to provide our services properly; such information will be used to provide our services and to inform you about product upgrades, new products & services, offers or other information.
    2. For more information or if you have any concerns about privacy, please email privacy@avira.com.

 

  1. GOVERNING LAW. Unless section 12 applies, this EULA shall be governed by the laws of the State of California, without regard to its choice of law rules, and all actions under this EULA shall be brought in the state and federal courts in Santa Clara County and you consent to venue and exclusive jurisdiction in these courts.
  1. TERM AND TERMINATION. 

 

    1. Term. This EULA and your License will take effect at the moment you click "I ACCEPT" or you install, access, or use the Software and is effective until the expiration of the License Term or if terminated as set forth below. Termination or expiration of this EULA means that your License ends immediately and, subject to the provisions of this section, you must destroy all copies of any aspect of the Software in your possession.
    1. Termination. Avira may, at our sole discretion and subject to the survival rights of certain provisions identified below and in addition to other remedies, immediately and without notice terminate this EULA and/or some or all terms thereof, at any time or suspend your access to the Software or any portion thereof if: (i) you breach any provision of the terms of this EULA or fail to pay any license fees due; (ii) Avira is required to do so by law; (iii) Avira ceases to offer any services covered by this EULA. You may also terminate this EULA at any time by ceasing to use the Software and permanently deleting the Software from any and all Devices in its entirety. Termination of this EULA or the License will not entitle you to any reimbursement of prepaid license fees, if any. If you have signed up for Automatic Renewal of a License, unless terminated by any of the Parties at least 30 days prior to the end of the current License Term, the License Term will be renewed automatically at the then effective list price. The new License Term will have the same run-time as the previous License Term.

 

    1. Right to cancel. You have a period of thirty (30) days after purchasing the Software to exercise the right to cancel and receive a refund of fees already paid for the Software on a pro rata basis. No reimbursement will be made if your voluntary withdrawal takes place after thirty (30) days from the date you purchased the Software.
    1. Deletion of Your Backed-up Data. In the event you have not signed up for Automatic Renewal and do not renew your paid license, Avira will grant you a fifteen-day (15) grace period after the expiration of a respective License Term during which you will still have access to your account. Following the initial grace period, your account shall be disabled, but your Backed-up Data shall not be deleted, for a period of thirty (30) days. During the thirty-day (30) period, you will receive regular notifications stating that such data will be deleted on a specific date unless you renew the respective License Term. During the thirty-day (30) period, you may contact Avira customer support at any point to transfer your selected Backed-up Data to a free account. If you do not either (i) renew by the deletion date stated in the notice or (ii) contact Avira customer support to transfer your Backed-up Data to a free account, your Backed-up Data will be deleted and you will have to create a new account.

 

    1. Data Removal. You may request, in writing, to have your data removed from our servers at any time and such request will be processed within seven (7) business days. If you do not explicitly request such removal, Avira may store your data exclusively for technical reasons up to a maximum of ninety (90) days after the termination or expiration of this EULA; provided, however, Avira will retain your account information as required for business operations and legal compliance in compliance with applicable laws.
  1. INDEMNITY. You agree to defend, indemnify and hold Avira its affiliates, subsidiaries, directors, officers, employees, agents, business partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by a third party, relating to or arising from: (a) any data you upload via the Software; (b) your use of the Software; (c) any violation by you of this EULA; or (d) your violation of any rights of a third party.

 

  1. MISCELLANEOUS. The following terms expressly apply to both the EULA and the Terms and Conditions. Avira reserves the right to modify the terms of this EULA. If you do not agree to the modifications, you must cease using the Software. You acknowledge that any breach, threatened or actual, of this EULA will cause irreparable injury to Avira, such injury would not be quantifiable in monetary damages, and Avira would not have an adequate remedy at law. You therefore agree that Avira shall be entitled, in addition to other available remedies, to seek and be awarded an injunction or other appropriate equitable relief from a court of competent jurisdiction restraining any breach, threatened or actual, of your obligations under any provision of this EULA. Accordingly, you hereby waive any requirement that Avira post any bond or other security in the event any injunctive or equitable relief is sought by or awarded to Avira to enforce any provision of this EULA. The parties agree that this EULA is for the benefit of the parties hereto as well as Avira's licensors.  Accordingly, this EULA is personal to you, and you may not assign your rights or obligations to any other person or entity without Avira's prior written consent. Failure by Avira to insist on strict performance of any of the terms and conditions of this EULA will not operate as a waiver by Avira of that or any subsequent default or failure of performance. If any provision (or part thereof) contained in this EULA is determined to be void, invalid, or otherwise unenforceable by a court of competent jurisdiction or on account of a conflict with an applicable government regulation, such determination shall not affect the remaining provisions (or parts thereof) contained herein and the illegal, invalid, or unenforceable clause shall be modified in compliance with applicable law in a manner that most closely matches the intent of the original language. No joint venture, partnership, employment, or agency relationship exists between you and Avira as a result of this EULA or your utilization of the Software. Headings herein are for convenience only. This EULA represents the entire agreement between you and Avira with respect to access to and use of the Software, and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written between you and Avira with respect to the Software. The provisions concerning Avira's proprietary rights, Feedback, indemnity, disclaimers of warranty, limitation of liability, and governing law will survive the termination of this EULA for any reason. Avira may require you to provide written confirmation of the destruction or deletion of the Software.
  1. APPLICATION OF GERMAN LAW.

 

    1. In addition to the other aforementioned terms of this EULA, this section applies to you if you are located in any other jurisdiction than the United States and Canada. Your license is governed by the laws of Germany. Should you be an Entrepreneur, the exclusive jurisdiction is the registered seat of Avira. Avira reserves the right to sue the Customer at its domicile.
    1. Section 5 (Limited Warranty Disclaimer) shall be replaced in its entirety by the following provisions:
      1. Unless expressly agreed otherwise, the Software provided by Avira shall be in line with the current-state-of-the-art technology and shall conform to all relevant product information and specifications provided by Avira, including those in the user handbooks. Avira does not warrant that the Software under the agreement will be fit for purposes beyond the fulfillment of Avira's obligations under the agreement.
      2. You are advised that based on the current state of the art technology program errors cannot be excluded with complete certainty in spite of exercising greatest conscientious care and diligence and that it is not possible to develop Software that detects any and all existing viruses and/or other Malware.
      3. If you are an Entrepreneur and Avira has provided you with the Software against payment and in perpetuity, defects in the provided Software, shall be rectified by Avira, as follows, provided you have notified Avira of the respective defect in accordance with section 377 of the German Commercial Code (Handelsgesetzbuch):
      4. Notified defects shall be rectified by Avira's choice through elimination of the defect ("Repair") or provision of defect-free Software ("Substitute Delivery"). Costs for such rectification shall be borne by Avira.
      5. If the defects in the Software cannot be rectified within a reasonable period or if Repair and Substitute Delivery can be deemed to have failed for other reasons, then you may, at your choice either reduce the amount of license fees paid or payable, or, on the condition that the defects are not immaterial, rescind the agreement.
      6. Any damage claims by you or claims for expenses incurred in vain ("Ersatz vergeblicher Aufwendungen") that arise from such defects shall be governed as set forth herein below under 12(iii).
      7. If Avira has provided you with the Software against payment but for a limited period of time, defects in the Software, shall be rectified by Avira within a reasonable period after notification of the defect. The rectification of defects shall be effected, at Avira’s choice, by way of Repair or Substitute Delivery free of charge. Your right to reduce the license fee, for the time the defect persists, remains unaffected. You are only entitled to extraordinarily terminate of the agreement due to the failure to grant use Software in accordance with the agreement if Avira has been given sufficient opportunity to rectify the defect and such attempt has failed.
      8. It shall be assumed that the Repair or Substitute Delivery has failed only if Avira has been given sufficient opportunity to effect a Repair or Substitute Delivery without achieving the desired result or if the Repair or Substitute Delivery was unjustifiably refused by Avira. If rectification of a defect in the form of Repair or Subsequent Delivery is only possible for Avira at unreasonable expenses, Avira may refuse to rectify the defect and refer you to your right to rescind or terminate the agreement.
      9. In no event shall you be entitled to demand the source code for the Software in regard to any defects.

 

    1. Section 6 (Limitation of Liability) shall be replaced in its entirety by the following provisions. Notwithstanding the legal nature of the relevant claim, the following shall apply to your damage claims and claims for expenses incurred in vain (Ersatz vergeblicher Aufwendungen):

Avira shall be liable for any of your damages resulting from gross negligent or intentional behavior of Avira, which are due to culpable injury to life, body and health, which arise due to the assumption of a guarantee or according to the Product Liability Act (Produkthaftungsgesetz). In all other cases Avira's liability for damages is limited to the infringement of material obligations of the agreement. Material obligations are only such obligations, the fulfillment of which are required for the proper execution of the agreement in the first place and where you may rely on the compliance with these obligations. Avira's liability for the loss of data is limited to the typical expenditures required for the restoration thereof, which are normal and typical in the case that security copies have been made. Reference is made to your obligation for regular data-backups pursuant to Section 3 of this EULA.
Avira's liability in case of negligent infringement of material obligations of the agreement by Avira shall be limited to foreseeable damages which are typical for this type of contract.

Avira’s strict liability for defects existing at the time of entering into this EULA pursuant to Section 536(a) para. 1, alternative 1 of the German Civil Code (Bürgerliches Gesetzbuch) is hereby expressly excluded.

The foregoing limitations of liability also apply with regard to all Avira's representatives, including but not limited to its directors, legal representatives, employees and other vicarious agents.”
 

Avira, Inc. |330 Primrose Rd. | Burlingame, CA 94010 | USA  

Avira Operations GmbH & Co. KG | Kaplaneiweg 1 | 88069 Tettnang | Germany

05 April 2013