Terms and Conditions
Effective as of November 28, 2024 | See a previous version of Terms and Conditions
Provider: ESET, spol. s r.o., a company organized and existing under the laws of the Slovak Republic, with its registered seat at Einsteinova 24, 851 01 Bratislava, Slovak Republic, company identification No. (IČO): 31333532, registered in the Commercial Register of the Municipal Court Bratislava III, Section Sro, Insertion No. 3586/B (the "ESET").
Customer: A legal person who purchased the Services from ESET or ESET Partner and accepted these Terms during the registration process in the Account (the "Customer"). The person who accepted the Terms on behalf of the Customer guarantees they have the authority to bind the Customer to the Terms.
ESET and the Customer are jointly referred to as the "Parties" and individually as the "Party".
Background
•ESET is a world-renowned company that provides IT security solutions to its clients worldwide and that provides services specified herein to its business customers.
•The Customer seeks to receive and use such services to assist with cybersecurity-related issues and protect its IT infrastructure.
•ESET will use its expert knowledge and professional experience to deliver service, as requested by the Customer and in accordance with the following terms.
Agreed Terms
1 Definitions and Interpretation
Unless a particular provision of the Terms states otherwise, the meaning of all capitalized terms contained herein shall be as defined in this Article or as ascribed to them in the provisions hereof. These capitalized terms, when defined, will be placed into quotation marks.
1.1"Account" refers to ESET PROTECT Hub, ESET Services Hub, ESET Business Account and ESET MSP Administrator (in case of MSP).
1.2"Affiliates" refers to entities that are controlled by, controlling or under common control with the Party.
1.3"Confidential Information" refers to any non-public information and data, whether disclosed in written, oral, electronic, website-based, or in other form and without the need of their explicit identification as confidential by the disclosing Party.
1.4"Distributor" refers to ESET Affiliate or partner distributing the Services on a certain territory, defined as "Distributor" in the Order Acceptance.
1.5"ESET Partner" refers to the Distributor or its partner (reseller) from whom the Services are ordered by the Customer and who supplies them to the Customer.
1.6"Force Majeure Event" refers to an intervention of a public enemy, acts of war, civil unrest, riots, demonstrations, fire, flood, earthquake, a strike of the employees causing slowdown or interruption of work, a threat to national security, pandemics, internet outage, the inability to procure equipment, data or material from the respective suppliers even after making reasonable efforts, or by other circumstances beyond the control of the Parties.
1.7"Man-Day" refers to the time unit set to quantify the extent of the work necessary for the provision of the Services and/or execution of the Service Outcomes. One Man-Day represents eight (8) hours of work per person.
1.8"Order" refers to an order for the provision of any of the Services placed to ESET by the Distributor.
1.9"MSP" or Managed Service Provider refers to the Customer who delivers services, such as network, application, infrastructure and security, via ongoing and regular support and active administration on clients’ premises, in their MSP’s data centre (hosting), or in a third-party data centre and who purchased the products via ESET MSP Administrator or ESET PROTECT Hub.
1.10"Order Acceptance" refers to the email confirmation sent by ESET to the Customer after ESET has accepted the Order.
1.11"Product" refers to a product provided by ESET to which the Services relate.
1.12"Services" refers to one or more services specified in the Annexes to the Terms provided by ESET that were ordered by the Customer.
1.13"Service Outcome" or "Output" refers to any outcome other than a Product and any of its versions that will be delivered to the Customer in connection with the performance of the Services.
1.14"Third Party" refers to any party other than ESET, the Customer or the client of MSP.
2 Scope of Terms and Their Binding Character
2.1The Terms regulate the provision of the Services by ESET and their use by the Customer, as well as the Parties´ rights and obligations in relation thereto.
2.2The supply of the Services and remuneration for their provision are beyond the scope of the Terms and will be agreed separately between the Customer and the ESET Partner or between the Customer and ESET if no ESET Partner is involved.
2.3The Customer has accepted the Terms during the registration process in one of the Accounts. In case the Customer is already registered in any or all of the Accounts, the Terms are already effective. Once the Terms are accepted upon creation of the Account, the Customer acknowledges that they are bound by these Terms to the full extent when using the Services.
2.4The Services provision shall be ordered by the Distributor, who will place the Order into the ESET system. The Order shall contain (i) the ordered Service, (ii) the Customer, (iii) the Service price, (iv) the number of units of purchased Service and (v) the expiration date that will determine the subscription period of the ordered Service. Any other data or conditions stated in the Order are not binding for ESET, unless they are specifically agreed between the Parties.
2.5ESET accepts the Order via Order Acceptance, which contains the details of the ordered Service, including the start date and the end date of the subscription period and instructions on how to activate and use the Service. The Customer is obliged to activate the Service by registering an account in accordance with section 2.3. In case the Customer already has at least one of the Accounts, the Service is already activated at the moment of Order Acceptance. ESET shall be obliged to provide the Services to the Customer pursuant to the Terms only after the Service is duly activated according to this section.
3 Provision of the Services
3.1The Services and their scope are defined in the respective Annex to the Terms. The Services may be performed by telephone (hotline), remote access, on-site or by other means specified in the applicable Annex. ESET and the Customer shall comply with the computer security, safety, and access regulations that are provided to them by the other Party.
3.2ESET shall provide the Services on time, with due care, in a professional manner, and in compliance with the Terms.
3.3The Customer shall grant ESET remote access to its environment to the extent necessary for the provision of the ordered Service. If the Customer purchased the Service to be performed on-site, the Customer shall grant ESET physical access to its premises to the extent necessary for the provision of the ordered Service. The details of the remote access will be agreed to separately between the Parties, whereby in case of physical access, section 5.4 of the Terms shall apply accordingly.
3.4Each Service Outcome shall be provided to the Customer as described in the respective Annex.
3.5ESET may engage subcontractors to perform any of the Services without the consent of the Customer. In such cases, ESET shall: (i) use only the authorized ESET Affiliates and exclusive country distributors or legal entity selected with the same degree of care as it would use if the contractor were being selected to provide similar services to ESET; and (ii) in all cases, remain responsible for all of its obligations with respect to the scope of the Services/Service Outcomes, the standard for Services/Service Outcomes, and the content of the Services/Service Outcomes provided to the Customer.
4 Use of Services and its Restrictions
4.1The Customer shall use the Services only for its own business purposes, in a conventional manner, in accordance with the Terms and the applicable Annexes, and only for the purpose for which they are intended, as described in the respective Annex and the Services documentation.
4.2The Customer is forbidden to enable or allow the use of Services by any Third Party, unless agreed otherwise. This restriction shall not apply to the Affiliates of the Customer, provided that the activities provided by ESET do not exceed the extent of purchased units of the Services and at the same time, only in relation to the Products activated by the Product license of the Customer. Noncompliance with this obligation shall be deemed as a substantial/material breach of the Terms.
4.3The Services are only provided in relation to ESET Products, and unless stated otherwise, do not concern any Third Party products or services. Some Services can only be provided in relation to a specific Product as specified in the Annex; therefore, obtaining a license for this Product is a prerequisite for the provision of such Service.
4.4The Customer undertakes to use the Services to a reasonable extent and not excessively. In exceptional cases when the Customer´s use of the Services is significantly excessive compared to other customers of a similar character or when such use can be considered unreasonable, ESET shall propose an alternative solution that will address the Service-related needs of the Customer. Notwithstanding the foregoing, ESET reserves the right to refuse or limit the provision of Services or to charge additional fees via the ESET Partner or ESET, if no ESET Partner is involved.
4.5The Customer acknowledges, understands, and agrees to the following:
a)ESET will always aim for the highest standards when providing Services; however, ESET does not guarantee or warrant that it will find, locate, discover, prevent, warn of or respond to all threats, vulnerabilities, malware, or malicious software that might be present at the Customer´s IT infrastructure and will not be held liable therefor.
b)If ESET provides any recommendations while providing the Services, they only have informative character. It is solely the Customer´s business decision to follow such a recommendation.
c)If a provision of the Service requires any intervention to the Customer´s IT infrastructure, it might result in malfunctioning or damage. Therefore, the Customer is obliged to notify ESET if any part of the infrastructure, which shall be subject to intervention, is critical for the functioning of the Customer´s infrastructure.
d)The Customer´s IT systems, documents, software, and other data shall be regularly backed up to prevent or minimize the risk of loss or damage.
e)The Customer shall keep information and documents provided ESET that served as the basis for the assumptions made for the provision of the Services, accurate and up-to-date, as well as to ensure that the Products and other related software shall be kept available, in operation, and up-to-date. Otherwise, it may have impact on the quality of the provided Services and/or Service Outcomes.
f)If any Customer´s hardware is to be sent to ESET for the purpose of the provision of Services, the Customer is obliged to pack it correctly to avoid any damage, as well as to fulfil other instructions or obligations imposed by the postal service.
ESET, ITS AFFILIATES, ESET PARTNERS, DISTRIBUTORS AND ITS SUPPLIERS CANNOT BE HELD LIABLE FOR ANY LOSSES OR DAMAGES CAUSED BY THE CUSTOMER´S FAILURE TO FULFILL ANY OF THE OBLIGATIONS ABOVE OR FOR THE CUSTOMER´S RELIANCE ON SERVICES OR THEIR OUTPUTS IN CONFLICT WITH ANY OF THE ABOVE ACKNOWLEDGMENTS.
5 Cooperation
5.1The Customer shall provide ESET with all the available information, documents, equipment and assistance that are necessary to fulfill the obligations of ESET according to the Terms. Should the Customer fail to provide ESET with such cooperation, ESET shall not be liable for delays to the performed Services. In such cases, all agreed time periods and deadlines shall be extended by a period corresponding to the delay caused by the Customer.
5.2The Customer may at any time require a change in the provided Services upon placing a modified Order to ESET via ESET Partner (or to ESET if the Service has been purchased directly from ESET). Provisions of Article 2 shall apply accordingly to the submission and acceptance of the modified Order. ESET will attempt to accommodate the Customer´s new proposal; however, it reserves the right to refuse any modified Order submitted by the Customer at its own discretion. The Order Acceptance related to the modified Order will be delivered to the Customer and it shall modify the original Order as of the date thereof.
5.3ESET, if using or accessing the Customer's premises or facilities, shall be obliged to comply with all reasonable directions and procedures relating to health and safety and security in effect for those premises or facilities, as provided to ESET prior to entering the premises or facilities to perform the Service ordered.
5.4Unless the Terms prescribe otherwise, the Customer shall direct all communication in relation to the provision of the Services, mainly any complaints, requests, refunds etc. to the ESET Partner. Other legal communication related to the Terms, mainly the communication relating to the termination of the Terms, shall be addressed to ESET at the e-mail address services@eset.com. If the Service has been purchased directly from ESET, the communication shall always be addressed to ESET.
6 License
6.1Unless otherwise agreed between the Parties, ESET reserves all intellectual property rights related to the Service Outcomes. At the time of delivery of the Service Outcomes, ESET grants the Customer an exclusive and non-transferable right to use the Service Outcomes exclusively for the internal purposes of the Customer. ESET will protect Service Outcomes created for the Customer and will not disclose them to any Third Party.
6.2The license under the previous paragraph is granted for the time of duration of ESET's intellectual property rights to the Service Outcomes. The Customer is not entitled to change or modify the Service Outcomes (or any part of them) that are protected by intellectual property rights or distribute or disclose them to Third Parties. To avoid any doubt, the use of Service Outcomes for purposes other than this Article is a substantial/material breach of the Terms. Use of the Service Outcomes for other purposes as set out in this Article may only be based on the prior written agreement of the Parties or the prior written consent of ESET. The Parties have agreed that the provisions of this Article will continue to be valid after termination of performance under the Terms.
7 Warranty
7.1ESET warrants that it has the necessary personal and material resources to ensure the provision of the Services by itself and/or by the qualified subcontractor.
7.2ESET hereby warrants that to the best of its knowledge, the Services or Service Outcome do not infringe any copyright, patent, trade secret, or other intellectual property rights of Third Parties.
7.3ESET provides Services on an "as is" basis and expressly declares that except for the warranty set out in Sections 7.1 and 7.2, it provides no further expressed or implied representations or warranties, particularly those on merchantability or suitability for a particular purpose.
8 Limitation of Liability
8.1TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL ESET, ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY LOST PROFITS, REVENUE, SALES, LOST BUSINESS OPPORTUNITIES, LOST DATA, COSTS OF DATA RESTORATION OR OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, INTERRUPTION OF BUSINESS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, STATUTE, TORT, OR OTHER THEORY OF LIABILITY, EVEN IF ESET, ITS SUPPLIERS OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR THE DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE.
8.2Either Party´s maximum aggregate liability for damages incurred by the other Party as a result of an action or omission of the liable Party shall be limited to the amount of the value of the respective Order, in direct relation to which the damage arose, unless stated otherwise in the respective Annex.
8.3Nothing in the Terms excludes or restricts the liability of either Party for death or personal injury resulting from the negligence or liability incurred by one Party for fraud or fraudulent misrepresentation by the other Party.
8.4The Parties jointly declare that based on all facts known to them at the time of entering into these Terms , it is not foreseeable that any damage if incurred under the Terms would exceed the value of the respective Order to which the damage directly relates.
9 Force Majeure
9.1The Parties shall not be liable for failure to comply with their obligations under the Terms if the performance of their duties is delayed or prevented by the Force Majeure Event.
9.2Exclusion of either Party’s liability for a Force Majeure Event shall be conditioned by the fact that the Force Majeure Event has not been caused by the intention or negligence of the respective Party, and the affected Party notified the other Party without undue delay about the Force Majeure Event in writing. The Party notifying the other Party about the Force Majeure Event is obliged to make a reasonable and customary effort to prevent the Force Majeure Event and minimize its possible consequences and duration. Following the end of the Force Majeure Event, the performance period shall be extended for the duration of the delay or the inability to meet the contracting obligations due to the Force Majeure Event. If the Force Majeure Event lasts longer than three (3) months, either Party shall be entitled to terminate the Services provision. The provisions of the section 11.10 shall apply accordingly.
10 Confidential Information Protection
10.1The Parties acknowledge a duty not to disclose the Confidential Information provided by one Party during or after the term of the Services provisions under the Terms without the Party’s prior written permission.
10.2The Terms impose no obligations with respect to Confidential Information that: (i) is already known by the receiving Party at the time of disclosure; (ii) is or becomes publicly available through no fault of the receiving Party; (iii) is independently developed by the receiving Party without the use of Confidential Information of the disclosing Party; or (iv) is lawfully obtained by the receiving Party from a third party who does not have an obligation of confidentiality to the disclosing Party.
10.3The Parties agree to use Confidential Information only in relation to the provision and use of the Services, and for other purposes only if it was specifically agreed by the disclosing Party in writing.
10.4The Parties agree to protect Confidential Information disclosed to them with at least the same degree of care, but no less than a reasonable degree of care, as they normally exercise to protect their own Confidential Information of similar character and importance and shall prevent any use of Confidential Information not authorized in the Terms and any disclosure of Confidential Information to any Third Party or their publication.
10.5Each Party shall ensure that the Confidential Information is only disclosed to their Affiliates, officers, employees, Specialists, and contractors on a strict "need-to-know" basis to carry out the purpose stated in the sec. 10.3 and that such Affiliates, officers, employees, Specialists, and contractors are informed of their confidential nature and bound by obligations set out herein. Notwithstanding the provisions of this Article, either Party may disclose Confidential Information to the extent it is necessary to comply with their statutory duty. In such case the disclosing Party shall inform the other Party of the disclosure obligation in advance, at the latest without undue delay after becoming aware of the court or other official order, unless they are obliged to keep such information confidential.
10.6Upon the disclosing Party’s request, the receiving Party shall promptly return or destroy all Confidential Information received, together with all its copies, except for those copies of Confidential Information that have been created by automatic backup systems with limited retention periods if (i) their deletion would involve disproportionate effort and (ii) in case of their recovery, the receiving Party will refrain from any use of such copies and will delete them without undue delay. Additionally, the receiving Party shall certify in writing that all Confidential Information and copies thereof have been destroyed, and if applicable, that some copies of the Confidential Information were stored by its automatic backup systems.
10.7All Confidential Information provided by the Parties under the Terms shall remain the property of the disclosing Party. Neither Party acquires any intellectual property rights to the Confidential Information of the disclosing Party except the limited rights necessary to carry out the purpose, as set forth in this Article of the Terms.
10.8The receiving Party´s duty to protect Confidential Information expires five (5) years from disclosure. In the case of termination or expiry of the Terms, the provisions of this Article will survive as to Confidential Information that is disclosed before its termination or expiry.
10.9Unless expressly provided herein, the Terms impose no obligation for a Party to exchange Confidential Information.
11 Term and Termination
11.1Term. The Terms shall become effective at their acceptance in compliance with the sec. 2.3 of the Terms and shall remain effective through the whole subscription period of the ordered Service.
11.2Terms Termination. Either Party shall have a right to terminate the Terms in case the other Party commits a substantial/material breach of the Terms and the breach remains unremedied for more than thirty (30) days after written notice of the breach is delivered to the other Party. Notwithstanding the foregoing, if the breaching Party has, in good faith, commenced to remedy the material breach, and the remedy cannot be reasonably completed within the thirty (30) days period, then the breaching Party will have an additional thirty (30) days to complete a remedy. In such cases, the other Party may terminate the Terms only if the failure continues unremedied after the passing of the additional thirty (30) days period.
11.3The Customer is entitled to terminate the Terms due to a change in the Terms in accordance with sec. 13.6 of the Terms.
11.4The Parties are entitled to terminate the Terms with immediate effect if the other Party:
a)becomes (or may become) the object of bankruptcy or liquidation proceedings or if bankruptcy has been declared over a Party´s property,
b)ceases (or threatens to cease) to carry on business, or
c)is object to another similar event or proceeding under the applicable law.
11.5In case of Termination of Terms, notwithstanding the reason, ESET shall cease to provide the Services to the Customer, and the Customer will not be entitled to the Services or to order any other Services.
11.6The Customer is entitled (not obliged) to terminate the Terms by using the Termination Form attached to the Terms in Annex no. 3.
11.7Termination of the Services provision. In case the Customer terminates the Data Processing Agreement in accordance with its Art. 4, the related Services provision shall be terminated as well.
11.8The Parties shall have a right to terminate the Services provision in case the other Party commits a substantial/material breach of the Terms relating to the specific Services provision, mainly the conditions stated in the annexes of the Terms and the breach remains unremedied for more than thirty (30) days after a notice of the breach is delivered to the Party via ESET Partner (if applicable). Notwithstanding the foregoing, if the breaching Party has, in good faith, commenced to remedy the material breach, and the remedy cannot be reasonably completed within the thirty (30) days period, then the breaching Party will have an additional thirty (30) days to complete a remedy. In such cases, the other Party may terminate the Services provision only if the failure continues unremedied after the passing of the additional thirty (30) days period.
11.9In case of the termination of the Services provision,
a)the Customer shall notify the ESET Partner (if applicable) who shall secure the cancellation of the applicable Order in the ESET system and
b)ESET shall inform the Distributor by canceling the applicable Order directly and notify the Customer via email about the termination of the specific Service provision.
11.10In case of termination of the Services provision due to (i) ESET´s uncured breach; (ii) change of the Terms; (iii) termination of the Services due to Force Majeure Event or (iv) termination of the Data Processing Agreement in Supplement A in accordance with its Art. 5, the Customer shall have the right for refund. In case the financial transactions have occurred between the Customer and ESET Partner, the Customer shall claim the refund from the ESET Partner. This provision shall not affect any other provisions relating to refunds that the Customer has agreed with the ESET Partner separately. The refund shall be in the amount of paid Service fees for the period from the date of the termination email (section 11.9b) to the end of the Services subscription period specified in the Order.
11.11Any termination of the Services provision will not waive or otherwise adversely affect any other rights or remedies the terminating Party may have under the Terms unless otherwise stated in the Terms. Upon termination or expiry of this Terms, all rights and duties of the Parties will be terminated, with the exception of those obligations that, by their nature or by express provisions set forth in the Terms, should survive its termination or expiry.
12 Specific provisions related to MSP
12.1All provisions of the Terms related to the Customer shall apply to the MSP accordingly, with the exceptions as stated below:
12.2The sections 4.2, 6.1, 6.2 and 11.11 of the Terms shall not apply.
12.3Notwithstanding sections 2.4 and 2.5 of the Terms, MSP is also entitled to order the Service via ESET MSP Administrator or ESET PROTECT Hub, if it is applicable. In such cases, sections 2.4 and 2.5 of the Terms shall not apply. The Service order will be either confirmed immediately or the order confirmation will be delivered to MSP to the notification center within the respective Account. The Distributor will be notified about the order as well.
12.4MSP is entitled to enable or allow the use of the Services to its clients, including its affiliated entities (as the case may be), as a part of the IT services that the MSP provides to its own clients.
12.5To avoid any doubts:
a)MSP shall not resell or provide the Services to any Third Party and to its clients only in the extent as defined in the section above (section 12.4);
b)MSP is forbidden to provide and/or label the Services as ESET Services, while providing them to its clients;
c)This article means neither a conclusion of a subcontracting agreement between the parties nor any other authorization to provide the Services on behalf of or on account of ESET.
12.6The obligations and prerequisites stated herein shall be deemed as fulfilled in case they are fulfilled by the MSP as well as by its client. For the avoidance of any doubt, MSP is fully liable for the fulfilment of the obligations and prerequisites of its clients as well.
12.7The MSP is hereby aware that the Service price and the number of units of purchased Service as stated in the Order (section 2.4 of the Terms) shall be valid only at the moment of the Order placement and Order Acceptance. Due to the nature of the Services provided to the MSP, these data will change each month based on the current usage of the Service in a given month. For the avoidance of doubt, this change shall not be deemed as the modification of the Order (section 5.3 of the Terms). This provision shall not apply to the following Services: ESET Deployment and Upgrade service and ESET HealthCheck service (Annex 1 to the Terms).
12.8ESET shall provide the Services to the MSP only and has the obligation to provide neither the Services nor any other support activities to the clients of MSP. MSP is fully liable for the provision of the Services to its clients.
12.9Unless otherwise agreed between the Parties, ESET reserves all intellectual property rights related to the Service Outcomes. At the time of delivery of the Service Outcomes, ESET grants the MSP an exclusive and non-transferable right to use the Service Outcomes exclusively for the internal business purposes of the MSP, mainly for the purpose of providing the Services to MSP´s clients. ESET will protect Service Outcomes created for the MSP and will not disclose them to any Third Party.
12.10The license under the previous sentence is granted for the time of duration of ESET's intellectual property rights to the Service Outcomes. The MSP is not entitled to change or modify the Service Outcomes (or any part of them) that are protected by intellectual property rights or distribute or disclose them to Third Parties. To avoid any doubt, the use of Service Outcomes for purposes other than stipulated herein is a substantial/material breach of the Terms. Use of the Service Outcomes for other purposes as set out in this Article may only be based on prior written agreement of the Parties or the prior written consent of ESET. The Parties have agreed that the provisions of this Article will continue to be valid after termination of performance under the Terms.
12.11The MSP hereby agrees to indemnify, hold harmless and defend ESET, its employees, officers, directors, independent contractors and partners from and against all actions, claims, proceedings, demands and suits (including any court costs, reasonable attorney’s fees and other expenses), arising out of, or resulting from the use of the Service by the MSP client.
12.12Either Party has the right to terminate the Services provision without the cause by sending the termination notice. The termination shall be effective as of the first day of the month following the month in which the termination notice has been delivered to the other Party via the Distributor. This shall not apply to the following Services: ESET Deployment and Upgrade service and ESET HealthCheck service (Annex 1 to the Terms).
12.13In case of ordering the Services according to section 12.3 of the Terms, MSP has the right to terminate the Services provision without the cause directly in the ESET MSP Administrator or ESET PROTECT Hub. The termination shall be effective immediately.
13 Final Provisions
13.1Interim provisions. The provisions of the Terms shall apply to all active relationships between the Customer and ESET concluded in compliance with the previous versions of the Terms and Conditions for the Provision of Professional and Security Services that are still valid and effective (the "Previous Terms"). All services ordered as well as all conditions stated in the orders according to the Previous Terms shall remain valid. The provisions of the current Terms shall apply to these orders accordingly.
13.2The information security requirements and processing of personal data in relation to Services by ESET as a data processor shall be governed by a separate data processing agreement in Supplement A.
13.3The Terms constitute the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior and collateral communications and understandings, including any marketing materials, requests for proposals, questionnaires, or reports. No failure or delay in exercising any right under the Terms will operate as a waiver of any term or condition hereunder.
13.4In the event of any conflict between the Terms and the Annexes to the Terms, the respective Annex shall prevail.
13.5The Parties expressly declare that no current or future documents by which the Customer stipulates the purchase terms and conditions shall be applied in relation to the provision of Services. Both Parties hereby explicitly agree that no such documents shall be applied to ESET, even if ESET has not expressly refused or objected to their application either in whole or in part.
13.6ESET may change the Terms unilaterally from time to time when such change is necessary due to changes to applicable laws, ESET standards, or for the purpose of enhancing the quality, security, or accessibility of the Services. In such cases, ESET is obliged to notify the Customer by email (sent to the email address stated in the respective account or announced to ESET later) and publish it on a dedicated website. If the change relates to substantial or material provisions of the Terms (e.g. new obligations or prerequisites for the Customer, change of the conditions to terminate the Terms or Services provision, change of jurisdiction, etc.) the Customer has a right to terminate the Terms within forty five (45) days after receiving of notice of the change. This right shall not apply if the change of the Terms will relate to the description of the services not ordered by the Customer or the amendment of a new service into the annexes. Unless the Customer refuses the proposed change within this time limit, it will be deemed accepted and become effective as of the date stipulated in the new version of the Terms. The Customer is obliged to keep its contact details up to date and to notify ESET without undue delay about any changes and therefore authorizes ESET to send the updated Terms to the last provided email address(es). ESET will not be liable for the Customer’s failure to receive the updated Terms due to failure to update the Customer’s contact details with ESET.
13.7The Terms shall be interpreted and governed under the laws with respect to the Distributor of the Service (the Distributor is stated in the Order Acceptance) as follows:
a)If the Distributor of the Services is ESET SOFTWARE UK LIMITED, then the laws of England and Wales apply without giving effect to the conflicts of law provisions;
b)If the Distributor of the Services is ESET, LLC. or ESET Canada Inc., then the laws of the State of California, United States of America apply as if performed wholly within the state and without giving effect to the conflicts of law provisions;
c)If the Distributor of the Services is Canon Marketing Japan, Inc., then the laws of Japan apply without giving effect to the conflicts of law provisions; and
d)If none of the previous points applies, then the laws of the Slovak Republic apply without giving effect to the conflicts of law provisions.
The laws specified above shall be also applicable to any non-contractual obligations that may arise in connection with the performance of Services. The Parties specifically disclaim the application of the UN Convention on Contracts for International Sale of Goods to the interpretation or enforcement of the Terms.
13.8Any dispute or disagreement arising out of or in connection with the Terms, including any violation, termination, cancellation or invalidity of the Terms (the "Dispute"), shall be finally settled in accordance with this Section. The Parties shall first attempt to settle all Disputes by mutual negotiations in good faith striving to resolve the Dispute by agreement without arbitration. In case of a Dispute, the Party shall be obliged to deliver to the other Party written notice of the Dispute, in which it shall specify the scope of the Dispute and propose the date and time of negotiations. If the Parties fail to resolve the Dispute without arbitration (including if the noticed Party is inactive in mutual negotiations) within thirty (30) days from delivery of the notice, the Party may initiate arbitration. Any Dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce (the "ICC") in the location specified below by one or more arbitrators appointed in accordance with the said rules. No award or procedural order made in the arbitration shall be published. The Emergency Arbitrator Provisions shall not apply. The Parties agree that the Dispute shall be finally settled by one arbitrator in case its value is one (1) million EUR or smaller, and by three (3) arbitrators in case its value is higher. The arbitration shall be held in English, the governing law of arbitration shall be as specified in section 13.7 of the Terms and the place of arbitration shall be:
a)ICC Japan in Tokyo in case the Distributor of the Services is Canon Marketing Japan, Inc.,
b)ICC United States in New York in case the Distributor of the Services is ESET, LLC. or ESET Canada Inc.,
c)ICC United Kingdom in London in case the Distributor of the Services is ESET SOFTWARE UK LIMITED, and
d)ICC Austria in Vienna in any other case then mentioned above.
13.9Except as expressly set forth in the Terms, neither Party has the right to assign, license, or sub-license any of its rights or obligations hereunder without the prior written consent of the other Party, which shall not be unreasonably withheld. Any assignment, license, or sub-license attempted without such consent will be void. Notwithstanding the foregoing, each Party may assign the Terms as part of a corporate reorganization, consolidation, merger, or sale of substantially all its assets or capital stock.
13.10If any provision of the Terms shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect.
13.11The Terms have been executed by the Parties in English. In case any translation of the Terms is prepared for convenience or any other purpose, the provisions of the English version of the Terms shall prevail.
Notice for the Customer:
If You have not been informed about these Terms during the sales process and at the same time You do not agree to be bound by them, You are entitled to cancel the order of the services and get a refund (section 11.10 of the Terms shall apply accordingly).
Annexes:
Annex no. 1 – Specification of ESET Professional Services
Annex no. 2 – Specification of ESET Security Services