END USER LICENSE AGREEMENT
Last Updated: Dec 15, 2021
This End User License Agreement (this "EULA") is a binding legal agreement between you and iTop Inc.. Please read the term of this End User License Agreement carefully before continuing with the download and installation of the Software.
By downloading, installing, or using this application for Windows, iOS or any other platform in which it is made available (the "Software"), you agree to be bound by the terms of this EULA.
If you do not agree to this EULA, do not continue to sign-up,therefore agreeing to be bound by this EULA and do not use the Software. You agree that the installation or use of the Software signifie that you have read, understood, and agree to be bound by this EULA.
Basic Rules
1. You can use the Software only for personal purposes (you may not use them for commercial purposes). You must not use the Software for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Software and your Content (defined below), including but not limited to, copyright laws. You are solely responsible for your conduct and any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials that you submit, post, or display on or via the Software.
2. You must not interfere or disrupt the service or servers or networks connected to the Software, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature, or access iTop Inc.'s private API by any means other than in compliance with rules we set on API access.
3. You are not allowed to resell or charge others for use of or access to the Software, or duplicate, reproduce, transfer, give access to, copy or distribute any part of the Software in any medium without iTop Inc.'s prior written authorization.
4. Violation of the Agreement may, in iTop Inc.'s sole discretion, result in a ban of iTop Inc. usage. You understand and agree that iTop Inc. cannot and will not be responsible for the Content stylize on the Software and you use the Software at your own risk. If you violate the letter or spirit of these Terms of Use, or otherwise create risk or possible legal exposure for iTop Inc., we can stop providing all or part of the Services to you.
License Grant and Account Usage
iTop Inc. grants you a non-exclusive, non-transferable right to use the service. You shall not modify, distribute, sublicense or by any mean commercially exploit or make available to any third parties the Services in any way. iTop Inc. reserves all rights that are not expressly granted to you.
We also use a tool called "Google Analytics" to collect information about your use of the Site. Google’s ability to use and share information collected by Google Analytics about your visits to this Site is restricted by the Google Analytics Terms of Use and the Google Privacy Policy.
You agree to keep your iTop VPN account information confidential. You are responsible all actions that occur on our servers where the login uses your user ID and password. You are advised to contact iTop Inc. If you discover or suspect that your account information has been compromised immediately.
When using iTop Inc. 'Service, you agree not to:
-
Send unsolicited contents (i.e., "spam") in any form over the Service.
-
Send contents that contain illegal, abusive, hateful, threatening, obscene materials; or intellectual property infringement and privacy invasion.
-
Distribute, reproduce, upload, download or post any copyrighted contents before obtaining authorization or permission from the owner of the proprietary material.
-
Distribute, reproduce, upload, download or post any contents that contain explicit or sexual depictions of minors.
-
Attempt to gain unauthorized access to the Service or its related systems or networks (i.e., any form of "hacking").
-
Engage in any conducts that inhibit or restrict any other users from enjoying or using the Services, which include but not limited to unfair usage of the network (i.e., Utilizing substantially excessive bandwidth that exceeds the average user bandwidth usage for an extended duration or like manners that exert an excessive load on the network that may cause disturbance to other users on the network).
-
*In order to protect account security and prevent password leaks and theft, iTop VPN VIP accounts are for personal use only, leasing to others is not allowed. If we find the above incorrect use of iTop VPN VIP account, we might choose to limit the number of login devices or prohibit the use of these accounts and delete related information, and will not refund any fees for this.
iTop Inc. reserves the right to take appropriate action when the Service is being used contrary to these Terms and applicable laws, which including termination of your account and the Service without providing a refund and notice.
Disclaimer of Warranties
THE SERVICE, INCLUDING, WITHOUT LIMITATION, ITOP INC. CONTENT, IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER ITOP INC. NOR ITS PARENT COMPANY NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE ITOP INC. PARTIES") MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SERVICE; (B) THE ITOP INC. CONTENT; (C) USER CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO ITOP INC. OR VIA THE SERVICE. IN ADDITION, THE ITOP INC. PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE ITOP INC. PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE ITOP INC. PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICE IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE ITOP INC. PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE ITOP INC. PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO YOU AND THESE TERMS OF USE.
BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
THE ITOP INC. PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ITOP INC. SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ITOP INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL ITOP INC.'S TOTAL LIABILITY TO YOU EXCEED THE AMOUNT OF ACTUAL PRICE PAID BY YOU TO ITOP INC. FOR THE SOFTWARE. THESE LIMITATIONS AND EXCLUSIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Advertising
Some of the iTop Inc. Services are supported by advertising revenue and may display advertisements and promotions. You agree that iTop Inc. may place advertising and promotions on, about, or in conjunction with your Content. The manner, mode, and extent of such advertising and promotions are subject to change without notice to you. You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.
Privacy
iTop Inc. may collect and use information concerning your use of iTop Inc. Apps as set forth in its PrivacyPolicy
We will not rent, reveal or sell all your information to third parties outside iTop Inc. (or the group of companies of which iTop Inc. is a part) and its controlled subsidiaries and affiliates without your consent.
Modification or Termination
The terms of this Agreement may be updated at any time by iTop Inc., with or without prior notice, including but not limited to changing the functionality or appearance of the Software, or changing the license scope, other terms of the Agreement, or iTop Inc. Services. If there are changes to the Agreement, iTop Inc. will publish the modified content on its website (https://www.itopvpn.com/eula.php). Once the revised version of the Agreement is published on the web, it is immediately effective and replaces the original. If you do no agree with the Agreement or any subsequent amendments, you may choose terminating your use of the Software or Services; if you choose to continue using the Software or Services, it is assumed that you fully accepted the terms and its amendments.
Reporting Violations
If you become aware of any misuse of the iTop Inc. services or any violation of the Terms, Privacy Policy, or Additional Terms, please contact us to report such misuse and/or violation.
Claims Resolution
Most customer concerns can be resolved through iTop Inc.’s online support center (available at https://www.itopvpn.com/support). In the event that iTop Inc. is unable to resolve a complaint to your satisfaction, this section explains how claims can be resolved through mediation, arbitration or litigation. It includes an arbitration provision. For this section, the words "you" and "iTop Inc." include any corporate parents, subsidiaries, affiliates or related persons or entities. The word "claim" means any current or future claim, dispute or controversy relating to the Product, this Agreement, and this Claims Resolution provision, except for the validity, enforceability or scope of the Arbitration provision. The word "claim" also includes but is not limited to: (i) initial claims, counter-claims, cross-claims and third-party claims; (ii) claims based upon contract, tort, fraud, statute, regulation, common la and equity; (iii) claims by or against any third-party using or providing any product, service or benefit in connection with Agreement; and (iv) claims that arise from or relate to advertisements, promotions or oral or written statements related to the Product. You or iTop Inc. may not sell, assign or transfer a claim.
Sending a Claim Notice
Before beginning a lawsuit, mediation or arbitration, you and iTop Inc. agree to send a written notice (a claim notice) to each party against whom a claim is asserted, in order to provide an opportunity to resolve the claim informally or through mediation. The claim notice must describe the claim and state the specific relief demanded.
Notice to iTop Inc. must include your name, address, the name of the Product at issue, the date of download or purchase of the Product, the email address you previously provided to us, if any. The notice must be sent to feedback@itopvpn.com. If the claim proceeds to arbitration, the amount of any relief demanded in a claim notice will not be disclosed to the arbitrator until after the arbitrator rules.
Mediation
In mediation, a neutral mediator helps parties resolve a claim. The mediator does not decide the claim but helps the parties reach agreement.
Before beginning mediation, you or iTop Inc. must first send a claim notice. If you live within the United States, within thirty days after sending or receiving a claim notice, you or iTop Inc. may submit the claim to JAMS (jamsadr.com), the American Arbitration Association ("AAA") (adr.org), or another mutually agreed upon mediator, for mediation. If you live outside of the United States, you may contact iTop Inc. for information on potential mediators. iTop Inc. will pay the fees of the mediator.
All mediation-related communications are confidential, inadmissible in court and not subject to discovery. All applicable statutes of limitation will be tolled until termination of the mediation.
Either you or iTop Inc. may terminate the mediation at any time. The submission or failure to submit a claim to mediation will not affect your or iTop Inc.’s rights under this Claim Resolution provision.
Arbitration
If you live in the United States, you or iTop Inc. may elect to resolve any claim by individual arbitration. If you do not live in the United States, this arbitration subsection does not apply to you. In individual arbitration, claims are decided by a neutral arbitrator.
Before beginning mediation, you or iTop Inc. must first send a claim notice. If you live within the United States, within thirty days after sending or receiving a claim notice, you or iTop Inc. may submit the claim to JAMS (jamsadr.com), the American Arbitration Association ("AAA") (adr.org), or another mutually agreed upon mediator, for mediation. If you live outside of the United States, you may contact iTop Inc. for information on potential mediators. iTop Inc. will pay the fees of the mediator.
Initiating Arbitration
Before beginning arbitration, you or iTop Inc. must first send a claim notice. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration provision and the selected organization's rules in effect when the claim is filed, except where those rules conflict with this Arbitration provision. If iTop Inc. choose the organization, you may select the other within thirty days after receiving notice of iTop Inc's selection. Contact JAMS or AAA to begin an arbitration or for other information. Claims also may be referred to another arbitration organization if you and iTop Inc. agree in writing or to an arbitrator appointed pursuant to section 6 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA").
You or iTop Inc. may otherwise elect to arbitrate any claim at any time unless it has been filed in court and trial has begun or final judgment has been entered. Either you or iTop Inc. may delay enforcing or not exercise rights under this Arbitration provision, including the right to arbitrate a claim, without waiving the right to exercise or enforce those rights. iTop Inc. will not elect arbitration for any claim you file in small claims court, so long as the claim is individual and pending only in that court.
Limitations on Arbitration
If either party elects to resolve a claim by arbitration, that claim will be arbitrated on an individual basis. There will be no right or authority for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other licensees or other persons similarly situated.
The arbitrator's authority is limited to claims between you and iTop Inc. alone. Claims may not be joined or consolidated unless you and iTop Inc. agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply.
Arbitration Procedures
This Arbitration provision is governed by the FAA. The arbitrator will apply applicable substantive law, statutes of limitations and privileges. The arbitrator will not apply any federal or state rules of civil procedure or evidence in matters relating to evidence or discovery. Subject to th Limitations on Arbitration, the arbitrator may otherwise award any relief available in court. The arbitration will be confidential, but you may notify any government authority of your claim.
If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents, through a telephonic hearing, or by an in-person hearing. At any party's request, the arbitrator will provide a brief written explanation of the award. The arbitrator's award will be final and binding, except for any right of appeal provided by the FAA; however, any party will have thirty days to appeal the award by notifying the arbitration organization and all parties in writing. The organization will appoint a three-arbitrator panel to decide anew, by majority vote based on written submissions, any aspect of the decision objected to by any party. Judgment upon any award may be entered in any court having jurisdiction.
At your election, any in-person arbitration hearings will take place in the federal judicial district of your residence.
Arbitration Fees and Costs
You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in a court of general jurisdiction. iTop Inc.
will be responsible for any additional arbitration fees. At your written request, iTop Inc. will consider in good faith making a temporary advance of your share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
Arbitration Awards
If the arbitrator rules in your favor for an amount greater than any final offer iTop Inc. made before arbitration, the arbitrator's award will include: (i) any money to which you are entitled, but in no case less than $2,000; and (ii) any reasonable attorneys’ fees and costs.
Your Right To Reject Arbitration
You may reject this Arbitration provision by sending a rejection notice to iTop Inc. at: feedback@itopvpn.com. Your rejection notice must be sent within 30 days after your first download or purchase of the Product. Your rejection notice must state that you reject the Arbitration provision and must include your name, address, the date of download or purchase of the Product, the name of the Product, the email address you previously provided to iTop Inc., if any, and the license code iTop Inc. provided to you, if any. If your rejection notice complies with these requirements, this Arbitration provision will not apply to you, except for any claims subject to pending litigation or arbitration at the time you send your rejection notice. Rejection of this Arbitration provision will not affect your other rights or responsibilities under this Agreement. Rejecting this Arbitration provision will not affect your ability to use the Product.
Continuation
This Claims Resolution provision will survive termination of this Agreement or your license to use the Product. If any portion of this Claims Resolution provision, except as otherwise provided in the Limitations on Arbitration provisions above, is deemed invalid or unenforceable, it will not invalidate the remaining portions of this Claims Resolution provision.
Contact Us
Should you have any questions concerning this notice, or if you desire to contact us for any reason, please contact us
END USER LICENSE AGREEMENT
Last Update: Dec 17, 2021
This End User License Agreement (this "EULA") is a binding legal agreement between you and iTop Inc.. Please read the terms of this End User License Agreement carefully before continuing with the download and installation of the Software.
By downloading, installing, or using this application (the "Software"), you agree to be bound by the terms of this EULA.
If you do not agree to this EULA, do not continue to sign-up, therefore agreeing to be bound by this EULA and do not use the Software. You agree that the installation or use of the Software signifies that you have read, understood, and agree to be bound by this EULA.
Basic Rules
1. You can use the Software only for personal purposes (you may not use them for commercial purposes). You must not use the Software for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the Software and your Content (defined below), including but not limited to, copyright laws. You are solely responsible for your conduct and any data, text, files, information, usernames, images, graphics, photos, profiles, audio and video clips, sounds, musical works, works of authorship, applications, links and other content or materials that you submit, post, or display on or via the Software.
2. You must not interfere or disrupt the service or servers or networks connected to the Software, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature, or access iTop Inc.'s private API by any means other than in compliance with rules we set on API access.
3. You are not allowed to resell or charge others for use of or access to the Software, or duplicate, reproduce, transfer, give access to, copy or distribute any part of the Software in any medium without iTop Inc.'s prior written authorization.
4. Violation of the Agreement may, in iTop Inc.'s sole discretion, result in a ban of iTop Inc. usage. You understand and agree that iTop Inc. cannot and will not be responsible for the Content stylize on the Software and you use the Software at your own risk. If you violate the letter or spirit of these Terms of Use, or otherwise create risk or possible legal exposure for iTop Inc., we can stop providing all or part of the Services to you.
License Grant and Account Usage
iTop Inc. grants you a non-exclusive, non-transferable right to use the service. You shall not modify, distribute, sublicense or by any mean commercially exploit or make available to any third parties the Services in any way. iTop Inc. reserves all rights that are not expressly granted to you.
We also use a tool called "Google Analytics" to collect information about your use of the Site. Google’s ability to use and share information collected by Google Analytics about your visits to this Site is restricted by the Google Analytics Terms of Use and the Google Privacy Policy.
You agree to keep your iTop Private Browser account information confidential. You are responsible all actions that occur on our servers where the login uses your user ID and password. You are advised to contact iTop Inc. If you discover or suspect that your account information has been compromised immediately.
When using iTop Inc. 'Service, you agree not to:
- Send unsolicited contents (i.e., "spam") in any form over the Service
- Send contents that contain illegal, abusive, hateful, threatening, obscene materials; or intellectual property infringement and privacy invasion.
- Distribute, reproduce, upload, download or post any copyrighted contents before obtaining authorization or permission from the owner of the proprietary material.
- Distribute, reproduce, upload, download or post any contents that contain explicit or sexual depictions of minors.
- Attempt to gain unauthorized access to the Service or its related systems or networks (i.e., any form of "hacking").
- Engage in any conducts that inhibit or restrict any other users from enjoying or using the Services, which include but not limited to unfair usage of the network (i.e., Utilizing substantially excessive bandwidth that exceeds the average user bandwidth usage for an extended duration or like manners that exert an excessive load on the network that may cause disturbance to other users on the network).
- In order to protect account security and prevent password leaks and theft, iTop Private Browser VIP accounts are for personal use only, leasing to others is not allowed. If we find the above incorrect use of iTop Private Browser VIP account, we might choose to limit the number of login devices or prohibit the use of these accounts and delete related information, and will not refund any fees for this.
iTop Inc. reserves the right to take appropriate action when the Service is being used contrary to these Terms and applicable laws, which including termination of your account and the Service without providing a refund and notice.
Disclaimer of Warranties
THE SERVICE, INCLUDING, WITHOUT LIMITATION, ITOP INC. CONTENT, IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER ITOP INC. NOR ITS PARENT COMPANY NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE ITOP INC. PARTIES") MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SERVICE; (B) THE ITOP INC. CONTENT; (C) USER CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO ITOP INC. OR VIA THE SERVICE. IN ADDITION, THE ITOP INC. PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.
THE ITOP INC. PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE ITOP INC. PARTIES DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICE IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE ITOP INC. PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE ITOP INC. PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO YOU AND THESE TERMS OF USE.
BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE.
THE ITOP INC. PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT ITOP INC. SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF ITOP INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). IN NO EVENT WILL ITOP INC.'S TOTAL LIABILITY TO YOU EXCEED THE AMOUNT OF ACTUAL PRICE PAID BY YOU TO ITOP INC. FOR THE SOFTWARE. THESE LIMITATIONS AND EXCLUSIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Advertising
Some of the iTop Inc. Services are supported by advertising revenue and may display advertisements and promotions. You agree that iTop Inc. may place advertising and promotions on, about, or in conjunction with your Content. The manner, mode, and extent of such advertising and promotions are subject to change without notice to you. You acknowledge that we may not always identify paid services, sponsored content, or commercial communications as such.
Privacy
iTop Inc. may collect and use information concerning your use of iTop Inc. Apps as set forth in its Privacy Policy.
We will not rent, reveal or sell all your information to third parties outside iTop Inc. (or the group of companies of which iTop Inc. is a part) and its controlled subsidiaries and affiliates without your consent.
Modification or Termination
The terms of this Agreement may be updated at any time by iTop Inc., with or without prior notice, including but not limited to changing the functionality or appearance of the Software, or changing the license scope, other terms of the Agreement, or iTop Inc. Services. If there are changes to the Agreement, iTop Inc. will publish the modified content on its website (https://www.itopvpn.com/eula). Once the revised version of the Agreement is published on the web, it is immediately effective and replaces the original. If you do not agree with the Agreement or any subsequent amendments, you may choose terminating your use of the Software or Services; if you choose to continue using the Software or Services, it is assumed that you fully accepted the terms and its amendments.
Reporting Violations
If you become aware of any misuse of the iTop Inc. services or any violation of the Terms, Privacy Policy, or Additional Terms, please contact us to report such misuse and/or violation.
Claims Resolution
Most customer concerns can be resolved through iTop Inc.’s online support center (available at https://www.itopvpn.com/support). In the event that iTop Inc. is unable to resolve a complaint to your satisfaction, this section explains how claims can be resolved through mediation, arbitration or litigation. It includes an arbitration provision. For this section, the words "you" and "iTop Inc." include any corporate parents, subsidiaries, affiliates or related persons or entities. The word "claim" means any current or future claim, dispute or controversy relating to the Product, this Agreement, and this Claims Resolution provision, except for the validity, enforceability or scope of the Arbitration provision. The word "claim" also includes but is not limited to: (i) initial claims, counter-claims, cross-claims and third-party claims; (ii) claims based upon contract, tort, fraud, statute, regulation, common la and equity; (iii) claims by or against any third-party using or providing any product, service or benefit in connection with Agreement; and (iv) claims that arise from or relate to advertisements, promotions or oral or written statements related to the Product. You or iTop Inc. may not sell, assign or transfer a claim.
Sending a Claim Notice
Before beginning a lawsuit, mediation or arbitration, you and iTop Inc. agree to send a written notice (a claim notice) to each party against whom a claim is asserted, in order to provide an opportunity to resolve the claim informally or through mediation. The claim notice must describe the claim and state the specific relief demanded.
Notice to iTop Inc. must include your name, address, the name of the Product at issue, the date of download or purchase of the Product, the email address you previously provided to us, if any. The notice must be sent to feedback@itopvpn.com. If the claim proceeds to arbitration, the amount of any relief demanded in a claim notice will not be disclosed to the arbitrator until after the arbitrator rules.
Mediation
In mediation, a neutral mediator helps parties resolve a claim. The mediator does not decide the claim but helps the parties reach agreement.
Before beginning mediation, you or iTop Inc. must first send a claim notice. If you live within the United States, within thirty days after sending or receiving a claim notice, you or iTop Inc. may submit the claim to JAMS (jamsadr.com), the American Arbitration Association ("AAA") (adr.org), or another mutually agreed upon mediator, for mediation. If you live outside of the United States, you may contact iTop Inc. for information on potential mediators. iTop Inc. will pay the fees of the mediator.
All mediation-related communications are confidential, inadmissible in court and not subject to discovery. All applicable statutes of limitation will be tolled until termination of the mediation.
Either you or iTop Inc. may terminate the mediation at any time. The submission or failure to submit a claim to mediation will not affect your or iTop Inc.’s rights under this Claim Resolution provision.
Arbitration
If you live in the United States, you or iTop Inc. may elect to resolve any claim by individual arbitration. If you do not live in the United States, this arbitration subsection does not apply to you. In individual arbitration, claims are decided by a neutral arbitrator.
Before beginning mediation, you or iTop Inc. must first send a claim notice. If you live within the United States, within thirty days after sending or receiving a claim notice, you or iTop Inc. may submit the claim to JAMS (jamsadr.com), the American Arbitration Association ("AAA") (adr.org), or another mutually agreed upon mediator, for mediation. If you live outside of the United States, you may contact iTop Inc. for information on potential mediators. iTop Inc. will pay the fees of the mediator.
Initiating Arbitration
Before beginning arbitration, you or iTop Inc. must first send a claim notice. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration provision and the selected organization's rules in effect when the claim is filed, except where those rules conflict with this Arbitration provision. If iTop Inc. choose the organization, you may select the other within thirty days after receiving notice of iTop Inc's selection. Contact JAMS or AAA to begin an arbitration or for other information. Claims also may be referred to another arbitration organization if you and iTop Inc. agree in writing or to an arbitrator appointed pursuant to section 6 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA").
You or iTop Inc. may otherwise elect to arbitrate any claim at any time unless it has been filed in court and trial has begun or final judgment has been entered. Either you or iTop Inc. may delay enforcing or not exercise rights under this Arbitration provision, including the right to arbitrate a claim, without waiving the right to exercise or enforce those rights. iTop Inc. will not elect arbitration for any claim you file in small claims court, so long as the claim is individual and pending only in that court.
Limitations on Arbitration
If either party elects to resolve a claim by arbitration, that claim will be arbitrated on an individual basis. There will be no right or authority for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other licensees or other persons similarly situated.
The arbitrator's authority is limited to claims between you and iTop Inc. alone. Claims may not be joined or consolidated unless you and iTop Inc. agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply.
Arbitration Procedures
This Arbitration provision is governed by the FAA. The arbitrator will apply applicable substantive law, statutes of limitations and privileges. The arbitrator will not apply any federal or state rules of civil procedure or evidence in matters relating to evidence or discovery. Subject to the Limitations on Arbitration, the arbitrator may otherwise award any relief available in court. The arbitration will be confidential, but you may notify any government authority of your claim.
If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents, through a telephonic hearing, or by an in-person hearing. At any party's request, the arbitrator will provide a brief written explanation of the award. The arbitrator's award will be final and binding, except for any right of appeal provided by the FAA; however, any party will have thirty days to appeal the award by notifying the arbitration organization and all parties in writing. The organization will appoint a three-arbitrator panel to decide anew, by majority vote based on written submissions, any aspect of the decision objected to by any party. Judgment upon any award may be entered in any court having jurisdiction.
At your election, any in-person arbitration hearings will take place in the federal judicial district of your residence.
Arbitration Fees and Costs
You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in a court of general jurisdiction. iTop Inc.
will be responsible for any additional arbitration fees. At your written request, iTop Inc. will consider in good faith making a temporary advance of your share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
Arbitration Awards
If the arbitrator rules in your favor for an amount greater than any final offer iTop Inc. made before arbitration, the arbitrator's award will include: (i) any money to which you are entitled, but in no case less than $2,000; and (ii) any reasonable attorneys’ fees and costs.
Your Right To Reject Arbitration
You may reject this Arbitration provision by sending a rejection notice to iTop Inc. at: feedback@itopvpn.com. Your rejection notice must be sent within 30 days after your first download or purchase of the Product. Your rejection notice must state that you reject the Arbitration provision and must include your name, address, the date of download or purchase of the Product, the name of the Product, the email address you previously provided to iTop Inc., if any, and the license code iTop Inc. provided to you, if any. If your rejection notice complies with these requirements, this Arbitration provision will not apply to you, except for any claims subject to pending litigation or arbitration at the time you send your rejection notice. Rejection of this Arbitration provision will not affect your other rights or responsibilities under this Agreement. Rejecting this Arbitration provision will not affect your ability to use the Product.
Continuation
This Claims Resolution provision will survive termination of this Agreement or your license to use the Product. If any portion of this Claims Resolution provision, except as otherwise provided in the Limitations on Arbitration provisions above, is deemed invalid or unenforceable, it will not invalidate the remaining portions of this Claims Resolution provision.
Contact Us
Should you have any questions concerning this notice, or if you desire to contact us for any reason, please contact us.
END USER LICENSE AGREEMENT
Last Update: Jul 15, 2021
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CONTINUING WITH THE DOWNLOAD AND INSTALLATION OF THE SOFTWARE PROGRAM IDENTIFIED ABOVE AND ANY ASSOCIATED SOFTWARE COMPONENTS, MEDIA, PRINTED MATERIALS OR OTHER RELATED ELECTRONIC DOCUMENTATION (COLLECTIVELY, THE "PRODUCT"). TO COMPLETE YOUR ORDER FOR THE PRODUCT YOU’VE REQUESTED, YOU MUST FIRST ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. By doing so, or otherwise installing, copying, or using the PRODUCT, you agree to be bound by the terms of this agreement. This agreement represents the entire agreement concerning the product between you and Itop, and it supersedes any prior proposal, Agreement, representation, or understanding between the parties. This agreement contains an arbitration provision.
Section 1. Intellectual Property Rights. The Product is protected by copyright and other intellectual property laws, and all intellectual property rights in and to the Product belong to Orange View Limited d/b/a iTop ("iTop") and its subsidiaries. Further, all right, title and interest, including all intellectual property rights, in and to the content which may be accessed through use of the Product is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content. All rights not expressly granted to you are reserved by iTop. The Product is only licensed to you, not sold. You may not reproduce, publish, transmit, modify, create derivative works from, publicly display, or publicly perform the Product. Copying or storing the Product other than as expressly permitted in Section 2 below is prohibited unless you obtain prior written permission from iTop.
Your Content. When you use our Product to create your content, including but not limited to any images, videos, sound recordings, and screen recordings (collectively, "Your Content"). We claim no intellectual property rights to Your Content. In connection to Your Content, you affirm, represent and warrant: (i)you have obtained and are solely responsible for obtaining all consents as may be required by law to post and/or publish any of Your Content relating to third-parties; (ii)Your Content will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights. We aren’t responsible for the content people post and share via the Product. Our Product takes no responsibility and assumes no liability for any of Your Content that you or any other user or third-party posts, sends, or otherwise makes available over the Product. You are solely and fully responsible for Your Content and for all materials that you post, host, upload, download, create, access, publish, share or transmit using the Product.
Section 2. License Grant and Prohibited Uses. iTop hereby grants you, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable and non-sublicensable license to use the number of copies of the Product which you have paid on the corresponding number of computers, running a validly licensed copy of the operating system for which the product was designed, for your personal use or for the internal business use of your company. You may make a single copy of the Product for archival purposes and may use such copy only when the original copy is not in use. You may not remove or alter any copyright notices on any copies of the Product. You may not use the Product on a computer network or allow concurrent use of the Product by more than one individual. You may not rent, lease or otherwise transfer the Product. Unless permitted by law, you may not reverse engineer, decompile, or disassemble the Product or attempt to do so. Any supplemental code that iTop may provide you in connection with any support services agreed upon between the parties shall be considered part of the Product and shall be subject to the terms and conditions of this Agreement. You must comply with all applicable laws regarding use of the Product.
Trial Version: If you have received, downloaded and/or installed a trial version of the Product and are hereby granted an evaluation license for the Product, you may use the Product only for evaluation purpose and only during the single applicable evaluation period, unless otherwise indicated, from the date of the initial installation. Any use of the Product for other purposes or beyond the applicable evaluation period is strictly prohibited.
Section 3. Installation and Scheduled Tasks. The installation process takes a few seconds and cannot be interrupted once started. By installing this Product, you acknowledge that silent installation will be performed to streamline the installation process. The product may extract files, create and run scheduled tasks, create and run services on your computer. The scheduled tasks are enabled by default and can be disabled by you at any time from the product settings. But if the skip UAC task is disabled or stopped, you need to manually operate the UAC prompt every time when it is prompted. The product services may run in the background to deliver updates, automatic services, performance monitoring, and some other long-running functionality. These services can be automatically started when the computer boots and can be paused and restarted. But the program will not function correctly when its services are paused or stopped.
Section 4. Limited Warranty. iTop warrants and represents to you that the Product will substantially conform to and operate in accordance with its documentation for a period of sixty (60) days from the date you accept the terms of this Agreement and complete the download of the Product ("Warranty Period"). This Limited Warranty applies only if the nonconformance is reported to iTop during the Warranty Period and if iTop is able to confirm the substantial non-conformance. It is void if the non-conformance of the Product is the result of accident, abuse, misapplication, or inappropriate use of the Product. The exclusive remedy for breach of this warranty shall be, at iTop’s option, either (i) the repair or replacement of the Product; or (ii) a refund of the price, if any, which you paid to license the Product.
Section 5. Warranty Disclaimer. SUBJECT TO THE PROVISIONS OF SECTION 4 ABOVE, THE PRODUCT is being licensed on an "As Is" and "with all faults" basis without any express or implied warranty of any kind. The entire risk as to the quality and performance of the Product is with you, and, should the product prove defective, you and not iTOP assume the entire cost of all necessary servicing or repair. TO THE EXTENT PERMITTED BY LAW, ITOP DISCLAIMS ALL OTHER WARRANTIES ON THE PRODUCT, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. FURTHER, ITOP does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Product. ITOP makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. ITOP further expressly disclaims any warranty or representation to authorized users or to any third party. THE DURATION OF ANY STATUTORILY-REQUIRED WARRANTY PERIOD SHALL BE LIMITED TO THE TERM OF THE LIMITED WARRANTY. NOTWITHSTANDING THE FOREGOING, YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
Beta Software: If the Product that you have received has been identified by iTop as "Beta" software, you may use the Product for testing purpose. The Beta Software IS BELIEVED TO CONTAIN DEFECTS AND A PRIMARY PURPOSE OF THIS BETA TESTING LICENSE IS TO OBTAIN FEEDBACK ON SOFTWARE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. You are advised to safeguard important data, to use caution and not to rely in any way on the correct functioning or performance of software and/or accompanying materials. SUBJECT TO THE PROVISIONS OF SECTION 4 ABOVE, THE PRODUCT is being licensed on an "As Is" and "with all faults" basis without any express or implied warranty of any kind. The entire risk as to the quality and performance of the Product is with you, and, should the product prove defective, you and not iTop assume the entire cost of all necessary servicing or repair.
Section 6. Disclaimer of Consequential Damages. UNDER NO CIRCUMSTANCES SHALL ITOP BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF THE PRODUCT OR INABILITY TO USE THE PRODUCT, INCLUDING WITHOUT LIMITATION, COMPUTER FAILURE, WORK STOPPAGE OR ANY OTHER DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Section 7. Limitation on Liability. ItOP shall have no liability with respect to the content of the PRODUCT or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. ITOP’S TOTAL LIABILITY SHALL IN NO EVENT EXCEED THE ACTUAL PRICE PAID FOR THE PRODUCT.
Section 8. Export Control. The United States controls the export of products and information. You agree to comply with such restrictions and not to export or re-export the Product to countries or persons prohibited under the export control laws. By downloading the Product, you are agreeing that you are not in a country where such export is prohibited or are a person or entity to which such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export or re-export of the Product.
Section 9. Taxes. You shall be responsible for the payment of all sales, use and similar taxes relating to the license of the Product.
Section 10. Government Users. If the Product is downloaded by or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), it is provided with Restricted Rights. Use, duplication, or disclosure of the Product by the U.S. Government is subject to restrictions as set forth in the Rights in Technical Data and Computer Software clause of DFARS and any other related applicable U.S. statutes or regulations.
Section 11. Termination. Without prejudice to any other rights, iTop may terminate this Agreement if you fail to comply with the terms and conditions set forth herein. In such event, you must destroy all copies of the Product in your possession.
Section 12. General Terms. If you live within the United States, the terms of this Agreement shall be governed by the laws of the State of California. If you live outside of the United States, the terms of this Agreement shall be governed by the laws of the Hong Kong Special Administrative Region of the People’s Republic of China. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. This Agreement constitutes the entire agreement between you and iTop with respect to this transaction. Any changes to this Agreement must be made in writing, signed by an authorized representative of iTop.
Section 13. Claims Resolution. Most customer concerns can be resolved through iTop’s online support center (available at https://www.itopvpn.com/support) or by calling our customer service department at the toll-free number iTop has provided you. In the event that iTop is unable to resolve a complaint to your satisfaction, this section explains how claims can be resolved through mediation, arbitration or litigation. It includes an arbitration provision.
For this section, the words "you" and "iTop" include any corporate parents, subsidiaries, affiliates or related persons or entities. The word "claim" means any current or future claim, dispute or controversy relating to the Product, this Agreement, and this Claims Resolution provision, except for the validity, enforceability or scope of the Arbitration provision. The word "claim" also includes but is not limited to: (i) initial claims, counter-claims, cross-claims and third-party claims; (ii) claims based upon contract, tort, fraud, statute, regulation, common law and equity; (iii) claims by or against any third-party using or providing any product, service or benefit in connection with Agreement; and (iv) claims that arise from or relate to advertisements, promotions or oral or written statements related to the Product. You or iTop may not sell, assign or transfer a claim.
Sending a Claim Notice
Before beginning a lawsuit, mediation or arbitration, you and iTop agree to send a written notice (a claim notice) to each party against whom a claim is asserted, in order to provide an opportunity to resolve the claim informally or through mediation. The claim notice must describe the claim and state the specific relief demanded.
Notice to iTop must include your name, address, the name of the Product at issue, the date of download or purchase of the Product, the email address you previously provided to us, if any, and the license code iTop provided to you, if any. The notice must be sent to feedback@itopvpn.com. If the claim proceeds to arbitration, the amount of any relief demanded in a claim notice will not be disclosed to the arbitrator until after the arbitrator rules.
Mediation
In mediation, a neutral mediator helps parties resolve a claim. The mediator does not decide the claim but helps the parties reach agreement.
Before beginning mediation, you or iTop must first send a claim notice. If you live within the United States, within thirty days after sending or receiving a claim notice, you or iTop may submit the claim to JAMS (1-800-352-5267, jamsadr.com), the American Arbitration Association ("AAA") (1-800-778-7879, adr.org), or another mutually agreed upon mediator, for mediation. If you live outside of the United States, you may contact iTop for information on potential mediators. iTop will pay the fees of the mediator.
All mediation-related communications are confidential, inadmissible in court and not subject to discovery. All applicable statutes of limitation will be tolled until termination of the mediation.
Either you or iTop may terminate the mediation at any time. The submission or failure to submit a claim to mediation will not affect your or iTop’s rights under this Claim Resolution provision.
Arbitration
If you live in the United States, you or iTop may elect to resolve any claim by individual arbitration. If you do not live in the United States, this arbitration subsection does not apply to you. In individual arbitration, claims are decided by a neutral arbitrator.
If arbitration is chosen by any party, neither you nor iTop will have the right to litigate that claim in court or have a jury trial on that claim. Further, neither you nor iTop will have the right to participate in a representative capacity or as a member of any class pertaining to any claim subject to arbitration. Arbitration procedures are generally simpler than the rules that apply in court, and discovery is more limited. The arbitrator's decisions are as enforceable as any court order and are subject to very limited review by a court. Except as set forth below, the arbitrator's decision will be final and binding. Other rights you or iTop would have in court may also not be available in arbitration.
Initiating Arbitration
Before beginning arbitration, you or iTop must first send a claim notice. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration provision and the selected organization's rules in effect when the claim is filed, except where those rules conflict with this Arbitration provision. If iTop choose the organization, you may select the other within thirty days after receiving notice of iTop’s selection. Contact JAMS or AAA to begin an arbitration or for other information. Claims also may be referred to another arbitration organization if you and iTop agree in writing or to an arbitrator appointed pursuant to section 6 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA").
You or iTop may otherwise elect to arbitrate any claim at any time unless it has been filed in court and trial has begun or final judgment has been entered. Either you or iTop may delay enforcing or not exercise rights under this Arbitration provision, including the right to arbitrate a claim, without waiving the right to exercise or enforce those rights.
iTop will not elect arbitration for any claim you file in small claims court, so long as the claim is individual and pending only in that court.
Limitations on Arbitration
If either party elects to resolve a claim by arbitration, that claim will be arbitrated on an individual basis. There will be no right or authority for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other licensees or other persons similarly situated.
The arbitrator's authority is limited to claims between you and iTop alone. Claims may not be joined or consolidated unless you and iTop agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply.
Arbitration Procedures
This Arbitration provision is governed by the FAA. The arbitrator will apply applicable substantive law, statutes of limitations and privileges. The arbitrator will not apply any federal or state rules of civil procedure or evidence in matters relating to evidence or discovery. Subject to the Limitations on Arbitration, the arbitrator may otherwise award any relief available in court. The arbitration will be confidential, but you may notify any government authority of your claim.
If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents, through a telephonic hearing, or by an in-person hearing. At any party's request, the arbitrator will provide a brief written explanation of the award. The arbitrator's award will be final and binding, except for any right of appeal provided by the FAA; however, any party will have thirty days to appeal the award by notifying the arbitration organization and all parties in writing. The organization will appoint a three-arbitrator panel to decide anew, by majority vote based on written submissions, any aspect of the decision objected to by any party. Judgment upon any award may be entered in any court having jurisdiction.
At your election, any in-person arbitration hearings will take place in the federal judicial district of your residence.
Arbitration Fees and Costs
You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in a court of general jurisdiction. iTop will be responsible for any additional arbitration fees. At your written request, iTop will consider in good faith making a temporary advance of your share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
Arbitration Awards
If the arbitrator rules in your favor for an amount greater than any final offer iTop made before arbitration, the arbitrator's award will include: (i) any money to which you are entitled, but in no case less than $2,000; and (ii) any reasonable attorneys’ fees and costs.
Your Right To Reject Arbitration
You may reject this Arbitration provision by sending a rejection notice to iTop at: feedback@itopvpn.com. Your rejection notice must be sent within 30 days after your first download or purchase of the Product. Your rejection notice must state that you reject the Arbitration provision and must include your name, address, the date of download or purchase of the Product, the name of the Product, the email address you previously provided to iTop, if any, and the license code iTop provided to you, if any. If your rejection notice complies with these requirements, this Arbitration provision will not apply to you, except for any claims subject to pending litigation or arbitration at the time you send your rejection notice. Rejection of this Arbitration provision will not affect your other rights or responsibilities under this Agreement. Rejecting this Arbitration provision will not affect your ability to use the Product.
Continuation
This Claims Resolution provision will survive termination of this Agreement or your license to use the Product. If any portion of this Claims Resolution provision, except as otherwise provided in the Limitations on Arbitration provisions above, is deemed invalid or unenforceable, it will not invalidate the remaining portions of this Claims Resolution provision.
END USER LICENSE AGREEMENT
Last Update: Jul 15, 2021
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CONTINUING WITH THE DOWNLOAD AND INSTALLATION OF THE SOFTWARE PROGRAM IDENTIFIED ABOVE AND ANY ASSOCIATED SOFTWARE COMPONENTS, MEDIA, PRINTED MATERIALS OR OTHER RELATED ELECTRONIC DOCUMENTATION (COLLECTIVELY, THE "PRODUCT"). TO COMPLETE YOUR ORDER FOR THE PRODUCT YOU’VE REQUESTED, YOU MUST FIRST ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. By doing so, or otherwise installing, copying, or using the PRODUCT, you agree to be bound by the terms of this agreement. This agreement represents the entire agreement concerning the product between you and Itop, and it supersedes any prior proposal, Agreement, representation, or understanding between the parties. This agreement contains an arbitration provision.
Section 1. Intellectual Property Rights. The Product is protected by copyright and other intellectual property laws, and all intellectual property rights in and to the Product belong to Orange View Limited d/b/a iTop ("iTop") and its subsidiaries. Further, all right, title and interest, including all intellectual property rights, in and to the content which may be accessed through use of the Product is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content. All rights not expressly granted to you are reserved by iTop. The Product is only licensed to you, not sold. You may not reproduce, publish, transmit, modify, create derivative works from, publicly display, or publicly perform the Product. Copying or storing the Product other than as expressly permitted in Section 2 below is prohibited unless you obtain prior written permission from iTop.
Your Content. When you use our Product to create your content, including but not limited to any images, videos, sound recordings, and screen recordings (collectively, "Your Content"). We claim no intellectual property rights to Your Content. In connection to Your Content, you affirm, represent and warrant: (i)you have obtained and are solely responsible for obtaining all consents as may be required by law to post and/or publish any of Your Content relating to third-parties; (ii)Your Content will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights. We aren’t responsible for the content people post and share via the Product. Our Product takes no responsibility and assumes no liability for any of Your Content that you or any other user or third-party posts, sends, or otherwise makes available over the Product. You are solely and fully responsible for Your Content and for all materials that you post, host, upload, download, create, access, publish, share or transmit using the Product.
Section 2. License Grant and Prohibited Uses. iTop hereby grants you, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable and non-sublicensable license to use the number of copies of the Product which you have paid on the corresponding number of computers, running a validly licensed copy of the operating system for which the product was designed, for your personal use or for the internal business use of your company. You may make a single copy of the Product for archival purposes and may use such copy only when the original copy is not in use. You may not remove or alter any copyright notices on any copies of the Product. You may not use the Product on a computer network or allow concurrent use of the Product by more than one individual. You may not rent, lease or otherwise transfer the Product. Unless permitted by law, you may not reverse engineer, decompile, or disassemble the Product or attempt to do so. Any supplemental code that iTop may provide you in connection with any support services agreed upon between the parties shall be considered part of the Product and shall be subject to the terms and conditions of this Agreement. You must comply with all applicable laws regarding use of the Product.
Trial Version: If you have received, downloaded and/or installed a trial version of the Product and are hereby granted an evaluation license for the Product, you may use the Product only for evaluation purpose and only during the single applicable evaluation period, unless otherwise indicated, from the date of the initial installation. Any use of the Product for other purposes or beyond the applicable evaluation period is strictly prohibited.
Section 3. Installation and Scheduled Tasks. The installation process takes a few seconds and cannot be interrupted once started. By installing this Product, you acknowledge that silent installation will be performed to streamline the installation process. The product may extract files, create and run scheduled tasks, create and run services on your computer. The scheduled tasks are enabled by default and can be disabled by you at any time from the product settings. But if the skip UAC task is disabled or stopped, you need to manually operate the UAC prompt every time when it is prompted. The product services may run in the background to deliver updates, automatic services, performance monitoring, and some other long-running functionality. These services can be automatically started when the computer boots and can be paused and restarted. But the program will not function correctly when its services are paused or stopped.
Section 4. Limited Warranty. iTop warrants and represents to you that the Product will substantially conform to and operate in accordance with its documentation for a period of sixty (60) days from the date you accept the terms of this Agreement and complete the download of the Product ("Warranty Period"). This Limited Warranty applies only if the nonconformance is reported to iTop during the Warranty Period and if iTop is able to confirm the substantial non-conformance. It is void if the non-conformance of the Product is the result of accident, abuse, misapplication, or inappropriate use of the Product. The exclusive remedy for breach of this warranty shall be, at iTop’s option, either (i) the repair or replacement of the Product; or (ii) a refund of the price, if any, which you paid to license the Product.
Section 5. Warranty Disclaimer. SUBJECT TO THE PROVISIONS OF SECTION 4 ABOVE, THE PRODUCT is being licensed on an "As Is" and "with all faults" basis without any express or implied warranty of any kind. The entire risk as to the quality and performance of the Product is with you, and, should the product prove defective, you and not iTOP assume the entire cost of all necessary servicing or repair. TO THE EXTENT PERMITTED BY LAW, ITOP DISCLAIMS ALL OTHER WARRANTIES ON THE PRODUCT, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. FURTHER, ITOP does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Product. ITOP makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. ITOP further expressly disclaims any warranty or representation to authorized users or to any third party. THE DURATION OF ANY STATUTORILY-REQUIRED WARRANTY PERIOD SHALL BE LIMITED TO THE TERM OF THE LIMITED WARRANTY. NOTWITHSTANDING THE FOREGOING, YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
Beta Software: If the Product that you have received has been identified by iTop as "Beta" software, you may use the Product for testing purpose. The Beta Software IS BELIEVED TO CONTAIN DEFECTS AND A PRIMARY PURPOSE OF THIS BETA TESTING LICENSE IS TO OBTAIN FEEDBACK ON SOFTWARE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. You are advised to safeguard important data, to use caution and not to rely in any way on the correct functioning or performance of software and/or accompanying materials. SUBJECT TO THE PROVISIONS OF SECTION 4 ABOVE, THE PRODUCT is being licensed on an "As Is" and "with all faults" basis without any express or implied warranty of any kind. The entire risk as to the quality and performance of the Product is with you, and, should the product prove defective, you and not iTop assume the entire cost of all necessary servicing or repair.
Section 6. Disclaimer of Consequential Damages. UNDER NO CIRCUMSTANCES SHALL ITOP BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF THE PRODUCT OR INABILITY TO USE THE PRODUCT, INCLUDING WITHOUT LIMITATION, COMPUTER FAILURE, WORK STOPPAGE OR ANY OTHER DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Section 7. Limitation on Liability. ItOP shall have no liability with respect to the content of the PRODUCT or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. ITOP’S TOTAL LIABILITY SHALL IN NO EVENT EXCEED THE ACTUAL PRICE PAID FOR THE PRODUCT.
Section 8. Export Control. The United States controls the export of products and information. You agree to comply with such restrictions and not to export or re-export the Product to countries or persons prohibited under the export control laws. By downloading the Product, you are agreeing that you are not in a country where such export is prohibited or are a person or entity to which such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export or re-export of the Product.
Section 9. Taxes. You shall be responsible for the payment of all sales, use and similar taxes relating to the license of the Product.
Section 10. Government Users. If the Product is downloaded by or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), it is provided with Restricted Rights. Use, duplication, or disclosure of the Product by the U.S. Government is subject to restrictions as set forth in the Rights in Technical Data and Computer Software clause of DFARS and any other related applicable U.S. statutes or regulations.
Section 11. Termination. Without prejudice to any other rights, iTop may terminate this Agreement if you fail to comply with the terms and conditions set forth herein. In such event, you must destroy all copies of the Product in your possession.
Section 12. General Terms. If you live within the United States, the terms of this Agreement shall be governed by the laws of the State of California. If you live outside of the United States, the terms of this Agreement shall be governed by the laws of the Hong Kong Special Administrative Region of the People’s Republic of China. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. This Agreement constitutes the entire agreement between you and iTop with respect to this transaction. Any changes to this Agreement must be made in writing, signed by an authorized representative of iTop.
Section 13. Claims Resolution. Most customer concerns can be resolved through iTop’s online support center (available at https://www.itopvpn.com/support) or by calling our customer service department at the toll-free number iTop has provided you. In the event that iTop is unable to resolve a complaint to your satisfaction, this section explains how claims can be resolved through mediation, arbitration or litigation. It includes an arbitration provision.
For this section, the words "you" and "iTop" include any corporate parents, subsidiaries, affiliates or related persons or entities. The word "claim" means any current or future claim, dispute or controversy relating to the Product, this Agreement, and this Claims Resolution provision, except for the validity, enforceability or scope of the Arbitration provision. The word "claim" also includes but is not limited to: (i) initial claims, counter-claims, cross-claims and third-party claims; (ii) claims based upon contract, tort, fraud, statute, regulation, common law and equity; (iii) claims by or against any third-party using or providing any product, service or benefit in connection with Agreement; and (iv) claims that arise from or relate to advertisements, promotions or oral or written statements related to the Product. You or iTop may not sell, assign or transfer a claim.
Sending a Claim Notice
Before beginning a lawsuit, mediation or arbitration, you and iTop agree to send a written notice (a claim notice) to each party against whom a claim is asserted, in order to provide an opportunity to resolve the claim informally or through mediation. The claim notice must describe the claim and state the specific relief demanded.
Notice to iTop must include your name, address, the name of the Product at issue, the date of download or purchase of the Product, the email address you previously provided to us, if any, and the license code iTop provided to you, if any. The notice must be sent to feedback@itopvpn.com. If the claim proceeds to arbitration, the amount of any relief demanded in a claim notice will not be disclosed to the arbitrator until after the arbitrator rules.
Mediation
In mediation, a neutral mediator helps parties resolve a claim. The mediator does not decide the claim but helps the parties reach agreement.
Before beginning mediation, you or iTop must first send a claim notice. If you live within the United States, within thirty days after sending or receiving a claim notice, you or iTop may submit the claim to JAMS (1-800-352-5267, jamsadr.com), the American Arbitration Association ("AAA") (1-800-778-7879, adr.org), or another mutually agreed upon mediator, for mediation. If you live outside of the United States, you may contact iTop for information on potential mediators. iTop will pay the fees of the mediator.
All mediation-related communications are confidential, inadmissible in court and not subject to discovery. All applicable statutes of limitation will be tolled until termination of the mediation.
Either you or iTop may terminate the mediation at any time. The submission or failure to submit a claim to mediation will not affect your or iTop’s rights under this Claim Resolution provision.
Arbitration
If you live in the United States, you or iTop may elect to resolve any claim by individual arbitration. If you do not live in the United States, this arbitration subsection does not apply to you. In individual arbitration, claims are decided by a neutral arbitrator.
If arbitration is chosen by any party, neither you nor iTop will have the right to litigate that claim in court or have a jury trial on that claim. Further, neither you nor iTop will have the right to participate in a representative capacity or as a member of any class pertaining to any claim subject to arbitration. Arbitration procedures are generally simpler than the rules that apply in court, and discovery is more limited. The arbitrator's decisions are as enforceable as any court order and are subject to very limited review by a court. Except as set forth below, the arbitrator's decision will be final and binding. Other rights you or iTop would have in court may also not be available in arbitration.
Initiating Arbitration
Before beginning arbitration, you or iTop must first send a claim notice. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration provision and the selected organization's rules in effect when the claim is filed, except where those rules conflict with this Arbitration provision. If iTop choose the organization, you may select the other within thirty days after receiving notice of iTop’s selection. Contact JAMS or AAA to begin an arbitration or for other information. Claims also may be referred to another arbitration organization if you and iTop agree in writing or to an arbitrator appointed pursuant to section 6 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA").
You or iTop may otherwise elect to arbitrate any claim at any time unless it has been filed in court and trial has begun or final judgment has been entered. Either you or iTop may delay enforcing or not exercise rights under this Arbitration provision, including the right to arbitrate a claim, without waiving the right to exercise or enforce those rights.
iTop will not elect arbitration for any claim you file in small claims court, so long as the claim is individual and pending only in that court.
Limitations on Arbitration
If either party elects to resolve a claim by arbitration, that claim will be arbitrated on an individual basis. There will be no right or authority for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other licensees or other persons similarly situated.
The arbitrator's authority is limited to claims between you and iTop alone. Claims may not be joined or consolidated unless you and iTop agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply.
Arbitration Procedures
This Arbitration provision is governed by the FAA. The arbitrator will apply applicable substantive law, statutes of limitations and privileges. The arbitrator will not apply any federal or state rules of civil procedure or evidence in matters relating to evidence or discovery. Subject to the Limitations on Arbitration, the arbitrator may otherwise award any relief available in court. The arbitration will be confidential, but you may notify any government authority of your claim.
If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents, through a telephonic hearing, or by an in-person hearing. At any party's request, the arbitrator will provide a brief written explanation of the award. The arbitrator's award will be final and binding, except for any right of appeal provided by the FAA; however, any party will have thirty days to appeal the award by notifying the arbitration organization and all parties in writing. The organization will appoint a three-arbitrator panel to decide anew, by majority vote based on written submissions, any aspect of the decision objected to by any party. Judgment upon any award may be entered in any court having jurisdiction.
At your election, any in-person arbitration hearings will take place in the federal judicial district of your residence.
Arbitration Fees and Costs
You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in a court of general jurisdiction. iTop will be responsible for any additional arbitration fees. At your written request, iTop will consider in good faith making a temporary advance of your share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
Arbitration Awards
If the arbitrator rules in your favor for an amount greater than any final offer iTop made before arbitration, the arbitrator's award will include: (i) any money to which you are entitled, but in no case less than $2,000; and (ii) any reasonable attorneys’ fees and costs.
Your Right To Reject Arbitration
You may reject this Arbitration provision by sending a rejection notice to iTop at: feedback@itopvpn.com. Your rejection notice must be sent within 30 days after your first download or purchase of the Product. Your rejection notice must state that you reject the Arbitration provision and must include your name, address, the date of download or purchase of the Product, the name of the Product, the email address you previously provided to iTop, if any, and the license code iTop provided to you, if any. If your rejection notice complies with these requirements, this Arbitration provision will not apply to you, except for any claims subject to pending litigation or arbitration at the time you send your rejection notice. Rejection of this Arbitration provision will not affect your other rights or responsibilities under this Agreement. Rejecting this Arbitration provision will not affect your ability to use the Product.
Continuation
This Claims Resolution provision will survive termination of this Agreement or your license to use the Product. If any portion of this Claims Resolution provision, except as otherwise provided in the Limitations on Arbitration provisions above, is deemed invalid or unenforceable, it will not invalidate the remaining portions of this Claims Resolution provision.
END USER LICENSE AGREEMENT
Last Update: Jan 25, 2022
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CONTINUING WITH THE DOWNLOAD AND INSTALLATION OF THE SOFTWARE PROGRAM IDENTIFIED ABOVE AND ANY ASSOCIATED SOFTWARE COMPONENTS, MEDIA, PRINTED MATERIALS OR OTHER RELATED ELECTRONIC DOCUMENTATION (COLLECTIVELY, THE “PRODUCT”). TO COMPLETE YOUR ORDER FOR THE PRODUCT YOU’VE REQUESTED, YOU MUST FIRST ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. By doing so, or otherwise installing, copying, or using the PRODUCT, you agree to be bound by the terms of this agreement. This agreement represents the entire agreement concerning the product between you and Itop, and it supersedes any prior proposal, Agreement, representation, or understanding between the parties. This agreement contains an arbitration provision.
Section 1. Intellectual Property Rights.
The Product is protected by copyright and other intellectual property laws, and all intellectual property rights in and to the Product belong to Orange View Limited d/b/a iTop (“iTop”) and its subsidiaries. Further, all right, title and interest, including all intellectual property rights, in and to the content which may be accessed through use of the Product is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content. All rights not expressly granted to you are reserved by iTop. The Product is only licensed to you, not sold. You may not reproduce, publish, transmit, modify, create derivative works from, publicly display, or publicly perform the Product. Copying or storing the Product other than as expressly permitted in Section 2 below is prohibited unless you obtain prior written permission from iTop.
Section 2. License Grant and Prohibited Uses.
iTop hereby grants you, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable and non-sublicensable license to use the number of copies of the Product which you have paid on the corresponding number of computers, running a validly licensed copy of the operating system for which the product was designed, for your personal use or for the internal business use of your company. You may make a single copy of the Product for archival purposes and may use such copy only when the original copy is not in use. You may not remove or alter any copyright notices on any copies of the Product. You may not use the Product on a computer network or allow concurrent use of the Product by more than one individual. You may not rent, lease or otherwise transfer the Product. Unless permitted by law, you may not reverse engineer, decompile, or disassemble the Product or attempt to do so. Any supplemental code that iTop may provide you in connection with any support services agreed upon between the parties shall be considered part of the Product and shall be subject to the terms and conditions of this Agreement. You must comply with all applicable laws regarding use of the Product.
Trial Version:
If you have received, downloaded and/or installed a trial version of the Product and are hereby granted an evaluation license for the Product, you may use the Product only for evaluation purpose and only during the single applicable evaluation period, unless otherwise indicated, from the date of the initial installation. Any use of the Product for other purposes or beyond the applicable evaluation period is strictly prohibited.
Section 3. Installation and Scheduled Tasks.
The installation process takes a few seconds and cannot be interrupted once started. By installing this Product, you acknowledge that silent installation will be performed to streamline the installation process. The product may extract files, create and run scheduled tasks, create and run services on your computer. The scheduled tasks are enabled by default and can be disabled by you at any time from the product settings. But if the skip UAC task is disabled or stopped, you need to manually operate the UAC prompt every time when it is prompted. The product services may run in the background to deliver updates, automatic services, performance monitoring, and some other long-running functionality. These services can be automatically started when the computer boots and can be paused and restarted. But the program will not function correctly when its services are paused or stopped.
Section 4. Limited Warranty.
iTop warrants and represents to you that the Product will substantially conform to and operate in accordance with its documentation for a period of sixty (60) days from the date you accept the terms of this Agreement and complete the download of the Product (“Warranty Period”). This Limited Warranty applies only if the nonconformance is reported to iTop during the Warranty Period and if iTop is able to confirm the substantial non-conformance. It is void if the non-conformance of the Product is the result of accident, abuse, misapplication, or inappropriate use of the Product. The exclusive remedy for breach of this warranty shall be, at iTop’s option, either (i) the repair or replacement of the Product; or (ii) a refund of the price, if any, which you paid to license the Product.
Section 5. Warranty Disclaimer.
SUBJECT TO THE PROVISIONS OF SECTION 4 ABOVE, THE PRODUCT is being licensed on an “As Is” and “with all faults” basis without any express or implied warranty of any kind. The entire risk as to the quality and performance of the Product is with you, and, should the product prove defective, you and not iTOP assume the entire cost of all necessary servicing or repair. TO THE EXTENT PERMITTED BY LAW, ITOP DISCLAIMS ALL OTHER WARRANTIES ON THE PRODUCT, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. FURTHER, ITOP does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Product. ITOP makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. ITOP further expressly disclaims any warranty or representation to authorized users or to any third party. THE DURATION OF ANY STATUTORILY-REQUIRED WARRANTY PERIOD SHALL BE LIMITED TO THE TERM OF THE LIMITED WARRANTY. NOTWITHSTANDING THE FOREGOING, YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
Beta Software:
If the Product that you have received has been identified by iTop as “Beta” software, you may use the Product for testing purpose. The Beta Software IS BELIEVED TO CONTAIN DEFECTS AND A PRIMARY PURPOSE OF THIS BETA TESTING LICENSE IS TO OBTAIN FEEDBACK ON SOFTWARE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. You are advised to safeguard important data, to use caution and not to rely in any way on the correct functioning or performance of software and/or accompanying materials. SUBJECT TO THE PROVISIONS OF SECTION 4 ABOVE, THE PRODUCT is being licensed on an “As Is” and “with all faults” basis without any express or implied warranty of any kind. The entire risk as to the quality and performance of the Product is with you, and, should the product prove defective, you and not iTop assume the entire cost of all necessary servicing or repair.
Section 6. Disclaimer of Consequential Damages.
UNDER NO CIRCUMSTANCES SHALL ITOP BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF THE PRODUCT OR INABILITY TO USE THE PRODUCT, INCLUDING WITHOUT LIMITATION, COMPUTER FAILURE, WORK STOPPAGE OR ANY OTHER DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Section 7. Limitation on Liability.
ItOP shall have no liability with respect to the content of the PRODUCT or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. ITOP’S TOTAL LIABILITY SHALL IN NO EVENT EXCEED THE ACTUAL PRICE PAID FOR THE PRODUCT.
Section 8. Export Control.
The United States controls the export of products and information. You agree to comply with such restrictions and not to export or re-export the Product to countries or persons prohibited under the export control laws. By downloading the Product, you are agreeing that you are not in a country where such export is prohibited or are a person or entity to which such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export or re-export of the Product.
Section 9. Taxes.
You shall be responsible for the payment of all sales, use and similar taxes relating to the license of the Product.
Section 10. Government Users.
If the Product is downloaded by or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), it is provided with Restricted Rights. Use, duplication, or disclosure of the Product by the U.S. Government is subject to restrictions as set forth in the Rights in Technical Data and Computer Software clause of DFARS and any other related applicable U.S. statutes or regulations.
Section 11. Termination.
Without prejudice to any other rights, iTop may terminate this Agreement if you fail to comply with the terms and conditions set forth herein. In such event, you must destroy all copies of the Product in your possession.
Section 12. General Terms. If you live within the United States, the terms of this Agreement shall be governed by the laws of the State of California. If you live outside of the United States, the terms of this Agreement shall be governed by the laws of the Hong Kong Special Administrative Region of the People’s Republic of China. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. This Agreement constitutes the entire agreement between you and iTop with respect to this transaction. Any changes to this Agreement must be made in writing, signed by an authorized representative of iTop.
Section 13. Claims Resolution. Most customer concerns can be resolved through iTop’s online support center (available at https://www.itopvpn.com/support) or by calling our customer service department at the toll-free number iTop has provided you. In the event that iTop is unable to resolve a complaint to your satisfaction, this section explains how claims can be resolved through mediation, arbitration or litigation. It includes an arbitration provision.
For this section, the words "you" and "iTop" include any corporate parents, subsidiaries, affiliates or related persons or entities. The word "claim" means any current or future claim, dispute or controversy relating to the Product, this Agreement, and this Claims Resolution provision, except for the validity, enforceability or scope of the Arbitration provision. The word "claim" also includes but is not limited to: (i) initial claims, counter-claims, cross-claims and third-party claims; (ii) claims based upon contract, tort, fraud, statute, regulation, common law and equity; (iii) claims by or against any third-party using or providing any product, service or benefit in connection with Agreement; and (iv) claims that arise from or relate to advertisements, promotions or oral or written statements related to the Product. You or iTop may not sell, assign or transfer a claim.
Sending a Claim Notice
Before beginning a lawsuit, mediation or arbitration, you and iTop agree to send a written notice (a claim notice) to each party against whom a claim is asserted, in order to provide an opportunity to resolve the claim informally or through mediation. The claim notice must describe the claim and state the specific relief demanded.
Notice to iTop must include your name, address, the name of the Product at issue, the date of download or purchase of the Product, the email address you previously provided to us, if any, and the license code iTop provided to you, if any. The notice must be sent to feedback@itopvpn.com. If the claim proceeds to arbitration, the amount of any relief demanded in a claim notice will not be disclosed to the arbitrator until after the arbitrator rules.
Mediation
In mediation, a neutral mediator helps parties resolve a claim. The mediator does not decide the claim but helps the parties reach agreement.
Before beginning mediation, you or iTop must first send a claim notice. If you live within the United States, within thirty days after sending or receiving a claim notice, you or iTop may submit the claim to JAMS (1-800-352-5267, jamsadr.com), the American Arbitration Association ("AAA") (1-800-778-7879, adr.org), or another mutually agreed upon mediator, for mediation. If you live outside of the United States, you may contact iTop for information on potential mediators. iTop will pay the fees of the mediator.
All mediation-related communications are confidential, inadmissible in court and not subject to discovery. All applicable statutes of limitation will be tolled until termination of the mediation.
Either you or iTop may terminate the mediation at any time. The submission or failure to submit a claim to mediation will not affect your or iTop’s rights under this Claim Resolution provision.
Arbitration
If you live in the United States, you or iTop may elect to resolve any claim by individual arbitration. If you do not live in the United States, this arbitration subsection does not apply to you. In individual arbitration, claims are decided by a neutral arbitrator.
If arbitration is chosen by any party, neither you nor iTop will have the right to litigate that claim in court or have a jury trial on that claim. Further, neither you nor iTop will have the right to participate in a representative capacity or as a member of any class pertaining to any claim subject to arbitration. Arbitration procedures are generally simpler than the rules that apply in court, and discovery is more limited. The arbitrator's decisions are as enforceable as any court order and are subject to very limited review by a court. Except as set forth below, the arbitrator's decision will be final and binding. Other rights you or iTop would have in court may also not be available in arbitration.
Initiating Arbitration
Before beginning arbitration, you or iTop must first send a claim notice. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration provision and the selected organization's rules in effect when the claim is filed, except where those rules conflict with this Arbitration provision. If iTop choose the organization, you may select the other within thirty days after receiving notice of iTop’s selection. Contact JAMS or AAA to begin an arbitration or for other information. Claims also may be referred to another arbitration organization if you and iTop agree in writing or to an arbitrator appointed pursuant to section 6 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA").
You or iTop may otherwise elect to arbitrate any claim at any time unless it has been filed in court and trial has begun or final judgment has been entered. Either you or iTop may delay enforcing or not exercise rights under this Arbitration provision, including the right to arbitrate a claim, without waiving the right to exercise or enforce those rights.
iTop will not elect arbitration for any claim you file in small claims court, so long as the claim is individual and pending only in that court.
Limitations on Arbitration
If either party elects to resolve a claim by arbitration, that claim will be arbitrated on an individual basis. There will be no right or authority for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other licensees or other persons similarly situated.
The arbitrator's authority is limited to claims between you and iTop alone. Claims may not be joined or consolidated unless you and iTop agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply.
Arbitration Procedures
This Arbitration provision is governed by the FAA. The arbitrator will apply applicable substantive law, statutes of limitations and privileges. The arbitrator will not apply any federal or state rules of civil procedure or evidence in matters relating to evidence or discovery. Subject to the Limitations on Arbitration, the arbitrator may otherwise award any relief available in court. The arbitration will be confidential, but you may notify any government authority of your claim.
If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents, through a telephonic hearing, or by an in-person hearing. At any party's request, the arbitrator will provide a brief written explanation of the award. The arbitrator's award will be final and binding, except for any right of appeal provided by the FAA; however, any party will have thirty days to appeal the award by notifying the arbitration organization and all parties in writing. The organization will appoint a three-arbitrator panel to decide anew, by majority vote based on written submissions, any aspect of the decision objected to by any party. Judgment upon any award may be entered in any court having jurisdiction.
At your election, any in-person arbitration hearings will take place in the federal judicial district of your residence.
Arbitration Fees and Costs
You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in a court of general jurisdiction. iTop will be responsible for any additional arbitration fees. At your written request, iTop will consider in good faith making a temporary advance of your share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
Arbitration Awards
If the arbitrator rules in your favor for an amount greater than any final offer iTop made before arbitration, the arbitrator's award will include: (i) any money to which you are entitled, but in no case less than $2,000; and (ii) any reasonable attorneys’ fees and costs.
Your Right To Reject Arbitration
You may reject this Arbitration provision by sending a rejection notice to iTop at: feedback@itopvpn.com. Your rejection notice must be sent within 30 days after your first download or purchase of the Product. Your rejection notice must state that you reject the Arbitration provision and must include your name, address, the date of download or purchase of the Product, the name of the Product, the email address you previously provided to iTop, if any, and the license code iTop provided to you, if any. If your rejection notice complies with these requirements, this Arbitration provision will not apply to you, except for any claims subject to pending litigation or arbitration at the time you send your rejection notice. Rejection of this Arbitration provision will not affect your other rights or responsibilities under this Agreement. Rejecting this Arbitration provision will not affect your ability to use the Product.
Continuation
This Claims Resolution provision will survive termination of this Agreement or your license to use the Product. If any portion of this Claims Resolution provision, except as otherwise provided in the Limitations on Arbitration provisions above, is deemed invalid or unenforceable, it will not invalidate the remaining portions of this Claims Resolution provision.
END USER LICENSE AGREEMENT
Last Update: Feb 24, 2022
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CONTINUING WITH THE DOWNLOAD AND INSTALLATION OF THE SOFTWARE PROGRAM IDENTIFIED ABOVE AND ANY ASSOCIATED SOFTWARE COMPONENTS, MEDIA, PRINTED MATERIALS OR OTHER RELATED ELECTRONIC DOCUMENTATION (COLLECTIVELY, THE “PRODUCT”). TO COMPLETE YOUR ORDER FOR THE PRODUCT YOU’VE REQUESTED, YOU MUST FIRST ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. By doing so, or otherwise installing, copying, or using the PRODUCT, you agree to be bound by the terms of this agreement. This agreement represents the entire agreement concerning the product between you and Itop, and it supersedes any prior proposal, Agreement, representation, or understanding between the parties. This agreement contains an arbitration provision.
Section 1. Intellectual Property Rights.
The Product is protected by copyright and other intellectual property laws, and all intellectual property rights in and to the Product belong to Orange View Limited d/b/a iTop (“iTop”) and its subsidiaries. Further, all right, title and interest, including all intellectual property rights, in and to the content which may be accessed through use of the Product is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content. All rights not expressly granted to you are reserved by iTop. The Product is only licensed to you, not sold. You may not reproduce, publish, transmit, modify, create derivative works from, publicly display, or publicly perform the Product. Copying or storing the Product other than as expressly permitted in Section 2 below is prohibited unless you obtain prior written permission from iTop.
Section 2. License Grant and Prohibited Uses.
iTop hereby grants you, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable and non-sublicensable license to use the number of copies of the Product which you have paid on the corresponding number of computers, running a validly licensed copy of the operating system for which the product was designed, for your personal use or for the internal business use of your company. You may make a single copy of the Product for archival purposes and may use such copy only when the original copy is not in use. You may not remove or alter any copyright notices on any copies of the Product. You may not use the Product on a computer network or allow concurrent use of the Product by more than one individual. You may not rent, lease or otherwise transfer the Product. Unless permitted by law, you may not reverse engineer, decompile, or disassemble the Product or attempt to do so. Any supplemental code that iTop may provide you in connection with any support services agreed upon between the parties shall be considered part of the Product and shall be subject to the terms and conditions of this Agreement. You must comply with all applicable laws regarding use of the Product.
Trial Version:
If you have received, downloaded and/or installed a trial version of the Product and are hereby granted an evaluation license for the Product, you may use the Product only for evaluation purpose and only during the single applicable evaluation period, unless otherwise indicated, from the date of the initial installation. Any use of the Product for other purposes or beyond the applicable evaluation period is strictly prohibited.
Section 3. Installation and Scheduled Tasks.
The installation process takes a few seconds and cannot be interrupted once started. By installing this Product, you acknowledge that silent installation will be performed to streamline the installation process. The product may extract files, create and run scheduled tasks, create and run services on your computer. The scheduled tasks are enabled by default and can be disabled by you at any time from the product settings. But if the skip UAC task is disabled or stopped, you need to manually operate the UAC prompt every time when it is prompted. The product services may run in the background to deliver updates, automatic services, performance monitoring, and some other long-running functionality. These services can be automatically started when the computer boots and can be paused and restarted. But the program will not function correctly when its services are paused or stopped.
Section 4. Limited Warranty.
iTop warrants and represents to you that the Product will substantially conform to and operate in accordance with its documentation for a period of sixty (60) days from the date you accept the terms of this Agreement and complete the download of the Product (“Warranty Period”). This Limited Warranty applies only if the nonconformance is reported to iTop during the Warranty Period and if iTop is able to confirm the substantial non-conformance. It is void if the non-conformance of the Product is the result of accident, abuse, misapplication, or inappropriate use of the Product. The exclusive remedy for breach of this warranty shall be, at iTop’s option, either (i) the repair or replacement of the Product; or (ii) a refund of the price, if any, which you paid to license the Product.
Section 5. Warranty Disclaimer.
SUBJECT TO THE PROVISIONS OF SECTION 4 ABOVE, THE PRODUCT is being licensed on an “As Is” and “with all faults” basis without any express or implied warranty of any kind. The entire risk as to the quality and performance of the Product is with you, and, should the product prove defective, you and not iTOP assume the entire cost of all necessary servicing or repair. TO THE EXTENT PERMITTED BY LAW, ITOP DISCLAIMS ALL OTHER WARRANTIES ON THE PRODUCT, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. FURTHER, ITOP does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Product. ITOP makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. ITOP further expressly disclaims any warranty or representation to authorized users or to any third party. THE DURATION OF ANY STATUTORILY-REQUIRED WARRANTY PERIOD SHALL BE LIMITED TO THE TERM OF THE LIMITED WARRANTY. NOTWITHSTANDING THE FOREGOING, YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
Beta Software:
If the Product that you have received has been identified by iTop as “Beta” software, you may use the Product for testing purpose. The Beta Software IS BELIEVED TO CONTAIN DEFECTS AND A PRIMARY PURPOSE OF THIS BETA TESTING LICENSE IS TO OBTAIN FEEDBACK ON SOFTWARE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. You are advised to safeguard important data, to use caution and not to rely in any way on the correct functioning or performance of software and/or accompanying materials. SUBJECT TO THE PROVISIONS OF SECTION 4 ABOVE, THE PRODUCT is being licensed on an “As Is” and “with all faults” basis without any express or implied warranty of any kind. The entire risk as to the quality and performance of the Product is with you, and, should the product prove defective, you and not iTop assume the entire cost of all necessary servicing or repair.
Section 6. Disclaimer of Consequential Damages.
UNDER NO CIRCUMSTANCES SHALL ITOP BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF THE PRODUCT OR INABILITY TO USE THE PRODUCT, INCLUDING WITHOUT LIMITATION, COMPUTER FAILURE, WORK STOPPAGE OR ANY OTHER DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Section 7. Limitation on Liability.
ItOP shall have no liability with respect to the content of the PRODUCT or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. ITOP’S TOTAL LIABILITY SHALL IN NO EVENT EXCEED THE ACTUAL PRICE PAID FOR THE PRODUCT.
Section 8. Export Control.
The United States controls the export of products and information. You agree to comply with such restrictions and not to export or re-export the Product to countries or persons prohibited under the export control laws. By downloading the Product, you are agreeing that you are not in a country where such export is prohibited or are a person or entity to which such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export or re-export of the Product.
Section 9. Taxes.
You shall be responsible for the payment of all sales, use and similar taxes relating to the license of the Product.
Section 10. Government Users.
If the Product is downloaded by or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), it is provided with Restricted Rights. Use, duplication, or disclosure of the Product by the U.S. Government is subject to restrictions as set forth in the Rights in Technical Data and Computer Software clause of DFARS and any other related applicable U.S. statutes or regulations.
Section 11. Termination.
Without prejudice to any other rights, iTop may terminate this Agreement if you fail to comply with the terms and conditions set forth herein. In such event, you must destroy all copies of the Product in your possession.
Section 12. General Terms. If you live within the United States, the terms of this Agreement shall be governed by the laws of the State of California. If you live outside of the United States, the terms of this Agreement shall be governed by the laws of the Hong Kong Special Administrative Region of the People’s Republic of China. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. This Agreement constitutes the entire agreement between you and iTop with respect to this transaction. Any changes to this Agreement must be made in writing, signed by an authorized representative of iTop.
Section 13. Claims Resolution. Most customer concerns can be resolved through iTop’s online support center (available at https://www.itopvpn.com/support) or by calling our customer service department at the toll-free number iTop has provided you. In the event that iTop is unable to resolve a complaint to your satisfaction, this section explains how claims can be resolved through mediation, arbitration or litigation. It includes an arbitration provision.
For this section, the words "you" and "iTop" include any corporate parents, subsidiaries, affiliates or related persons or entities. The word "claim" means any current or future claim, dispute or controversy relating to the Product, this Agreement, and this Claims Resolution provision, except for the validity, enforceability or scope of the Arbitration provision. The word "claim" also includes but is not limited to: (i) initial claims, counter-claims, cross-claims and third-party claims; (ii) claims based upon contract, tort, fraud, statute, regulation, common law and equity; (iii) claims by or against any third-party using or providing any product, service or benefit in connection with Agreement; and (iv) claims that arise from or relate to advertisements, promotions or oral or written statements related to the Product. You or iTop may not sell, assign or transfer a claim.
Sending a Claim Notice
Before beginning a lawsuit, mediation or arbitration, you and iTop agree to send a written notice (a claim notice) to each party against whom a claim is asserted, in order to provide an opportunity to resolve the claim informally or through mediation. The claim notice must describe the claim and state the specific relief demanded.
Notice to iTop must include your name, address, the name of the Product at issue, the date of download or purchase of the Product, the email address you previously provided to us, if any, and the license code iTop provided to you, if any. The notice must be sent to feedback@itopvpn.com. If the claim proceeds to arbitration, the amount of any relief demanded in a claim notice will not be disclosed to the arbitrator until after the arbitrator rules.
Mediation
In mediation, a neutral mediator helps parties resolve a claim. The mediator does not decide the claim but helps the parties reach agreement.
Before beginning mediation, you or iTop must first send a claim notice. If you live within the United States, within thirty days after sending or receiving a claim notice, you or iTop may submit the claim to JAMS (1-800-352-5267, jamsadr.com), the American Arbitration Association ("AAA") (1-800-778-7879, adr.org), or another mutually agreed upon mediator, for mediation. If you live outside of the United States, you may contact iTop for information on potential mediators. iTop will pay the fees of the mediator.
All mediation-related communications are confidential, inadmissible in court and not subject to discovery. All applicable statutes of limitation will be tolled until termination of the mediation.
Either you or iTop may terminate the mediation at any time. The submission or failure to submit a claim to mediation will not affect your or iTop’s rights under this Claim Resolution provision.
Arbitration
If you live in the United States, you or iTop may elect to resolve any claim by individual arbitration. If you do not live in the United States, this arbitration subsection does not apply to you. In individual arbitration, claims are decided by a neutral arbitrator.
If arbitration is chosen by any party, neither you nor iTop will have the right to litigate that claim in court or have a jury trial on that claim. Further, neither you nor iTop will have the right to participate in a representative capacity or as a member of any class pertaining to any claim subject to arbitration. Arbitration procedures are generally simpler than the rules that apply in court, and discovery is more limited. The arbitrator's decisions are as enforceable as any court order and are subject to very limited review by a court. Except as set forth below, the arbitrator's decision will be final and binding. Other rights you or iTop would have in court may also not be available in arbitration.
Initiating Arbitration
Before beginning arbitration, you or iTop must first send a claim notice. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration provision and the selected organization's rules in effect when the claim is filed, except where those rules conflict with this Arbitration provision. If iTop choose the organization, you may select the other within thirty days after receiving notice of iTop’s selection. Contact JAMS or AAA to begin an arbitration or for other information. Claims also may be referred to another arbitration organization if you and iTop agree in writing or to an arbitrator appointed pursuant to section 6 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA").
You or iTop may otherwise elect to arbitrate any claim at any time unless it has been filed in court and trial has begun or final judgment has been entered. Either you or iTop may delay enforcing or not exercise rights under this Arbitration provision, including the right to arbitrate a claim, without waiving the right to exercise or enforce those rights.
iTop will not elect arbitration for any claim you file in small claims court, so long as the claim is individual and pending only in that court.
Limitations on Arbitration
If either party elects to resolve a claim by arbitration, that claim will be arbitrated on an individual basis. There will be no right or authority for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other licensees or other persons similarly situated.
The arbitrator's authority is limited to claims between you and iTop alone. Claims may not be joined or consolidated unless you and iTop agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply.
Arbitration Procedures
This Arbitration provision is governed by the FAA. The arbitrator will apply applicable substantive law, statutes of limitations and privileges. The arbitrator will not apply any federal or state rules of civil procedure or evidence in matters relating to evidence or discovery. Subject to the Limitations on Arbitration, the arbitrator may otherwise award any relief available in court. The arbitration will be confidential, but you may notify any government authority of your claim.
If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents, through a telephonic hearing, or by an in-person hearing. At any party's request, the arbitrator will provide a brief written explanation of the award. The arbitrator's award will be final and binding, except for any right of appeal provided by the FAA; however, any party will have thirty days to appeal the award by notifying the arbitration organization and all parties in writing. The organization will appoint a three-arbitrator panel to decide anew, by majority vote based on written submissions, any aspect of the decision objected to by any party. Judgment upon any award may be entered in any court having jurisdiction.
At your election, any in-person arbitration hearings will take place in the federal judicial district of your residence.
Arbitration Fees and Costs
You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in a court of general jurisdiction. iTop will be responsible for any additional arbitration fees. At your written request, iTop will consider in good faith making a temporary advance of your share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
Arbitration Awards
If the arbitrator rules in your favor for an amount greater than any final offer iTop made before arbitration, the arbitrator's award will include: (i) any money to which you are entitled, but in no case less than $2,000; and (ii) any reasonable attorneys’ fees and costs.
Your Right To Reject Arbitration
You may reject this Arbitration provision by sending a rejection notice to iTop at: feedback@itopvpn.com. Your rejection notice must be sent within 30 days after your first download or purchase of the Product. Your rejection notice must state that you reject the Arbitration provision and must include your name, address, the date of download or purchase of the Product, the name of the Product, the email address you previously provided to iTop, if any, and the license code iTop provided to you, if any. If your rejection notice complies with these requirements, this Arbitration provision will not apply to you, except for any claims subject to pending litigation or arbitration at the time you send your rejection notice. Rejection of this Arbitration provision will not affect your other rights or responsibilities under this Agreement. Rejecting this Arbitration provision will not affect your ability to use the Product.
Continuation
This Claims Resolution provision will survive termination of this Agreement or your license to use the Product. If any portion of this Claims Resolution provision, except as otherwise provided in the Limitations on Arbitration provisions above, is deemed invalid or unenforceable, it will not invalidate the remaining portions of this Claims Resolution provision.
END USER LICENSE AGREEMENT
Last Update: June 08, 2022
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CONTINUING WITH THE DOWNLOAD AND INSTALLATION OF THE SOFTWARE PROGRAM IDENTIFIED ABOVE AND ANY ASSOCIATED SOFTWARE COMPONENTS, MEDIA, PRINTED MATERIALS OR OTHER RELATED ELECTRONIC DOCUMENTATION (COLLECTIVELY, THE “PRODUCT”). TO COMPLETE YOUR ORDER FOR THE PRODUCT YOU’VE REQUESTED, YOU MUST FIRST ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. By doing so, or otherwise installing, copying, or using the PRODUCT, you agree to be bound by the terms of this agreement. This agreement represents the entire agreement concerning the product between you and Itop, and it supersedes any prior proposal, Agreement, representation, or understanding between the parties. This agreement contains an arbitration provision.
Section 1. Intellectual Property Rights.
The Product is protected by copyright and other intellectual property laws, and all intellectual property rights in and to the Product belong to Orange View Limited d/b/a iTop (“iTop”) and its subsidiaries. Further, all right, title and interest, including all intellectual property rights, in and to the content which may be accessed through use of the Product is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content. All rights not expressly granted to you are reserved by iTop. The Product is only licensed to you, not sold. You may not reproduce, publish, transmit, modify, create derivative works from, publicly display, or publicly perform the Product. Copying or storing the Product other than as expressly permitted in Section 2 below is prohibited unless you obtain prior written permission from iTop.
Section 2. License Grant and Prohibited Uses.
iTop hereby grants you, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable and non-sublicensable license to use the number of copies of the Product which you have paid on the corresponding number of computers, running a validly licensed copy of the operating system for which the product was designed, for your personal use or for the internal business use of your company. You may make a single copy of the Product for archival purposes and may use such copy only when the original copy is not in use. You may not remove or alter any copyright notices on any copies of the Product. You may not use the Product on a computer network or allow concurrent use of the Product by more than one individual. You may not rent, lease or otherwise transfer the Product. Unless permitted by law, you may not reverse engineer, decompile, or disassemble the Product or attempt to do so. Any supplemental code that iTop may provide you in connection with any support services agreed upon between the parties shall be considered part of the Product and shall be subject to the terms and conditions of this Agreement. You must comply with all applicable laws regarding use of the Product.
Trial Version:
If you have received, downloaded and/or installed a trial version of the Product and are hereby granted an evaluation license for the Product, you may use the Product only for evaluation purpose and only during the single applicable evaluation period, unless otherwise indicated, from the date of the initial installation. Any use of the Product for other purposes or beyond the applicable evaluation period is strictly prohibited.
Section 3. Installation and Scheduled Tasks.
The installation process takes a few seconds and cannot be interrupted once started. By installing this Product, you acknowledge that silent installation will be performed to streamline the installation process. The product may extract files, create and run scheduled tasks, create and run services on your computer. The scheduled tasks are enabled by default and can be disabled by you at any time from the product settings. But if the skip UAC task is disabled or stopped, you need to manually operate the UAC prompt every time when it is prompted. The product services may run in the background to deliver updates, automatic services, performance monitoring, and some other long-running functionality. These services can be automatically started when the computer boots and can be paused and restarted. But the program will not function correctly when its services are paused or stopped.
Section 4. Limited Warranty.
iTop warrants and represents to you that the Product will substantially conform to and operate in accordance with its documentation for a period of sixty (60) days from the date you accept the terms of this Agreement and complete the download of the Product (“Warranty Period”). This Limited Warranty applies only if the nonconformance is reported to iTop during the Warranty Period and if iTop is able to confirm the substantial non-conformance. It is void if the non-conformance of the Product is the result of accident, abuse, misapplication, or inappropriate use of the Product. The exclusive remedy for breach of this warranty shall be, at iTop’s option, either (i) the repair or replacement of the Product; or (ii) a refund of the price, if any, which you paid to license the Product.
Section 5. Warranty Disclaimer.
SUBJECT TO THE PROVISIONS OF SECTION 4 ABOVE, THE PRODUCT is being licensed on an “As Is” and “with all faults” basis without any express or implied warranty of any kind. The entire risk as to the quality and performance of the Product is with you, and, should the product prove defective, you and not iTOP assume the entire cost of all necessary servicing or repair. TO THE EXTENT PERMITTED BY LAW, ITOP DISCLAIMS ALL OTHER WARRANTIES ON THE PRODUCT, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. FURTHER, ITOP does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Product. ITOP makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. ITOP further expressly disclaims any warranty or representation to authorized users or to any third party. THE DURATION OF ANY STATUTORILY-REQUIRED WARRANTY PERIOD SHALL BE LIMITED TO THE TERM OF THE LIMITED WARRANTY. NOTWITHSTANDING THE FOREGOING, YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
Beta Software:
If the Product that you have received has been identified by iTop as “Beta” software, you may use the Product for testing purpose. The Beta Software IS BELIEVED TO CONTAIN DEFECTS AND A PRIMARY PURPOSE OF THIS BETA TESTING LICENSE IS TO OBTAIN FEEDBACK ON SOFTWARE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. You are advised to safeguard important data, to use caution and not to rely in any way on the correct functioning or performance of software and/or accompanying materials. SUBJECT TO THE PROVISIONS OF SECTION 4 ABOVE, THE PRODUCT is being licensed on an “As Is” and “with all faults” basis without any express or implied warranty of any kind. The entire risk as to the quality and performance of the Product is with you, and, should the product prove defective, you and not iTop assume the entire cost of all necessary servicing or repair.
Section 6. Disclaimer of Consequential Damages.
UNDER NO CIRCUMSTANCES SHALL ITOP BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF THE PRODUCT OR INABILITY TO USE THE PRODUCT, INCLUDING WITHOUT LIMITATION, COMPUTER FAILURE, WORK STOPPAGE OR ANY OTHER DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Section 7. Limitation on Liability.
ItOP shall have no liability with respect to the content of the PRODUCT or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. ITOP’S TOTAL LIABILITY SHALL IN NO EVENT EXCEED THE ACTUAL PRICE PAID FOR THE PRODUCT.
Section 8. Export Control.
The United States controls the export of products and information. You agree to comply with such restrictions and not to export or re-export the Product to countries or persons prohibited under the export control laws. By downloading the Product, you are agreeing that you are not in a country where such export is prohibited or are a person or entity to which such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export or re-export of the Product.
Section 9. Taxes.
You shall be responsible for the payment of all sales, use and similar taxes relating to the license of the Product.
Section 10. Government Users.
If the Product is downloaded by or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), it is provided with Restricted Rights. Use, duplication, or disclosure of the Product by the U.S. Government is subject to restrictions as set forth in the Rights in Technical Data and Computer Software clause of DFARS and any other related applicable U.S. statutes or regulations.
Section 11. Termination.
Without prejudice to any other rights, iTop may terminate this Agreement if you fail to comply with the terms and conditions set forth herein. In such event, you must destroy all copies of the Product in your possession.
Section 12. General Terms. If you live within the United States, the terms of this Agreement shall be governed by the laws of the State of California. If you live outside of the United States, the terms of this Agreement shall be governed by the laws of the Hong Kong Special Administrative Region of the People’s Republic of China. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. This Agreement constitutes the entire agreement between you and iTop with respect to this transaction. Any changes to this Agreement must be made in writing, signed by an authorized representative of iTop.
Section 13. Claims Resolution. Most customer concerns can be resolved through iTop’s online support center (available at https://www.itopvpn.com/support) or by calling our customer service department at the toll-free number iTop has provided you. In the event that iTop is unable to resolve a complaint to your satisfaction, this section explains how claims can be resolved through mediation, arbitration or litigation. It includes an arbitration provision.
For this section, the words "you" and "iTop" include any corporate parents, subsidiaries, affiliates or related persons or entities. The word "claim" means any current or future claim, dispute or controversy relating to the Product, this Agreement, and this Claims Resolution provision, except for the validity, enforceability or scope of the Arbitration provision. The word "claim" also includes but is not limited to: (i) initial claims, counter-claims, cross-claims and third-party claims; (ii) claims based upon contract, tort, fraud, statute, regulation, common law and equity; (iii) claims by or against any third-party using or providing any product, service or benefit in connection with Agreement; and (iv) claims that arise from or relate to advertisements, promotions or oral or written statements related to the Product. You or iTop may not sell, assign or transfer a claim.
Sending a Claim Notice
Before beginning a lawsuit, mediation or arbitration, you and iTop agree to send a written notice (a claim notice) to each party against whom a claim is asserted, in order to provide an opportunity to resolve the claim informally or through mediation. The claim notice must describe the claim and state the specific relief demanded.
Notice to iTop must include your name, address, the name of the Product at issue, the date of download or purchase of the Product, the email address you previously provided to us, if any, and the license code iTop provided to you, if any. The notice must be sent to feedback@itopvpn.com. If the claim proceeds to arbitration, the amount of any relief demanded in a claim notice will not be disclosed to the arbitrator until after the arbitrator rules.
Mediation
In mediation, a neutral mediator helps parties resolve a claim. The mediator does not decide the claim but helps the parties reach agreement.
Before beginning mediation, you or iTop must first send a claim notice. If you live within the United States, within thirty days after sending or receiving a claim notice, you or iTop may submit the claim to JAMS (1-800-352-5267, jamsadr.com), the American Arbitration Association ("AAA") (1-800-778-7879, adr.org), or another mutually agreed upon mediator, for mediation. If you live outside of the United States, you may contact iTop for information on potential mediators. iTop will pay the fees of the mediator.
All mediation-related communications are confidential, inadmissible in court and not subject to discovery. All applicable statutes of limitation will be tolled until termination of the mediation.
Either you or iTop may terminate the mediation at any time. The submission or failure to submit a claim to mediation will not affect your or iTop’s rights under this Claim Resolution provision.
Arbitration
If you live in the United States, you or iTop may elect to resolve any claim by individual arbitration. If you do not live in the United States, this arbitration subsection does not apply to you. In individual arbitration, claims are decided by a neutral arbitrator.
If arbitration is chosen by any party, neither you nor iTop will have the right to litigate that claim in court or have a jury trial on that claim. Further, neither you nor iTop will have the right to participate in a representative capacity or as a member of any class pertaining to any claim subject to arbitration. Arbitration procedures are generally simpler than the rules that apply in court, and discovery is more limited. The arbitrator's decisions are as enforceable as any court order and are subject to very limited review by a court. Except as set forth below, the arbitrator's decision will be final and binding. Other rights you or iTop would have in court may also not be available in arbitration.
Initiating Arbitration
Before beginning arbitration, you or iTop must first send a claim notice. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration provision and the selected organization's rules in effect when the claim is filed, except where those rules conflict with this Arbitration provision. If iTop choose the organization, you may select the other within thirty days after receiving notice of iTop’s selection. Contact JAMS or AAA to begin an arbitration or for other information. Claims also may be referred to another arbitration organization if you and iTop agree in writing or to an arbitrator appointed pursuant to section 6 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA").
You or iTop may otherwise elect to arbitrate any claim at any time unless it has been filed in court and trial has begun or final judgment has been entered. Either you or iTop may delay enforcing or not exercise rights under this Arbitration provision, including the right to arbitrate a claim, without waiving the right to exercise or enforce those rights.
iTop will not elect arbitration for any claim you file in small claims court, so long as the claim is individual and pending only in that court.
Limitations on Arbitration
If either party elects to resolve a claim by arbitration, that claim will be arbitrated on an individual basis. There will be no right or authority for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other licensees or other persons similarly situated.
The arbitrator's authority is limited to claims between you and iTop alone. Claims may not be joined or consolidated unless you and iTop agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply.
Arbitration Procedures
This Arbitration provision is governed by the FAA. The arbitrator will apply applicable substantive law, statutes of limitations and privileges. The arbitrator will not apply any federal or state rules of civil procedure or evidence in matters relating to evidence or discovery. Subject to the Limitations on Arbitration, the arbitrator may otherwise award any relief available in court. The arbitration will be confidential, but you may notify any government authority of your claim.
If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents, through a telephonic hearing, or by an in-person hearing. At any party's request, the arbitrator will provide a brief written explanation of the award. The arbitrator's award will be final and binding, except for any right of appeal provided by the FAA; however, any party will have thirty days to appeal the award by notifying the arbitration organization and all parties in writing. The organization will appoint a three-arbitrator panel to decide anew, by majority vote based on written submissions, any aspect of the decision objected to by any party. Judgment upon any award may be entered in any court having jurisdiction.
At your election, any in-person arbitration hearings will take place in the federal judicial district of your residence.
Arbitration Fees and Costs
You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in a court of general jurisdiction. iTop will be responsible for any additional arbitration fees. At your written request, iTop will consider in good faith making a temporary advance of your share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
Arbitration Awards
If the arbitrator rules in your favor for an amount greater than any final offer iTop made before arbitration, the arbitrator's award will include: (i) any money to which you are entitled, but in no case less than $2,000; and (ii) any reasonable attorneys’ fees and costs.
Your Right To Reject Arbitration
You may reject this Arbitration provision by sending a rejection notice to iTop at: feedback@itopvpn.com. Your rejection notice must be sent within 30 days after your first download or purchase of the Product. Your rejection notice must state that you reject the Arbitration provision and must include your name, address, the date of download or purchase of the Product, the name of the Product, the email address you previously provided to iTop, if any, and the license code iTop provided to you, if any. If your rejection notice complies with these requirements, this Arbitration provision will not apply to you, except for any claims subject to pending litigation or arbitration at the time you send your rejection notice. Rejection of this Arbitration provision will not affect your other rights or responsibilities under this Agreement. Rejecting this Arbitration provision will not affect your ability to use the Product.
Continuation
This Claims Resolution provision will survive termination of this Agreement or your license to use the Product. If any portion of this Claims Resolution provision, except as otherwise provided in the Limitations on Arbitration provisions above, is deemed invalid or unenforceable, it will not invalidate the remaining portions of this Claims Resolution provision.
End User License Agreement
Last Updated: July 26th, 2022
This End User License Agreement (this "EULA") constitutes a legally binding agreement made between you, whether personally or on behalf of an entity (you), and iTop Inc. ("iTop"). Please read the terms of this EULA carefully before continuing with the download and installation of our product (or "Software").
By downloading, installing, or using the Software, you agree to be bound by the terms of this EULA. If you have any questions about this EULA, please feel free to contact us.
Section 1. Intellectual Property Rights
iTop Inc. and the third parties whose intellectual property has been licensed to iTop Inc. have the exclusive ownership of all right, title, and interest in and to the Software or service licensed to you, including ownership of all the Intellectual Property Rights and Confidential Information pertaining thereto, subject only to the express rights and privileges expressly granted to you under said agreement. The structure, organization, and code of the Software are the valuable trade secrets and confidential information of iTop Inc. and the third parties whose intellectual property has been licensed to iTop Inc. The Software is protected by copyright and other intellectual property laws, and by applicable international treaty provisions. Except as expressly provided in this EULA, you are not granted any intellectual property rights over the Software. You may not make or publish any public statement concerning the Software or iTop Inc. without the prior express written consent of iTop Inc. If you fail to get the necessary authorization but still conduct activities other than as expressly permitted in this EULA, all the legal liabilities, including but not limited to any loss of or damage to any third party will be solely born by you.
Your Content. When you use our Software to create your content, including but not limited to any documents, images, videos, etc. (collectively, "Your Content"), we claim no intellectual property rights to Your Content. In connection to Your Content, you affirm, represent and warrant: (i)you have obtained and are solely responsible for obtaining all consents as may be required by law to post and/or publish any of Your Content relating to third parties; (ii)Your Content will not violate any law or infringe any rights of any third party, including but not limited to any intellectual property rights and privacy rights. We aren’t responsible for the content people post or share via the Software. Our Software takes no responsibility and assumes no liability for any of Your Content that you or any other user or third party posts, sends, or otherwise makes available over the Software. You are solely and fully responsible for Your Content and for all materials that you host, upload, download, create, access, publish, share or transmit using the Software.
Section 2. License Grant and Restrictions
iTop Inc. hereby grants you, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable and non-sublicensable license to use the number of copies of the Software which you have paid on the corresponding number of computers, running a validly licensed copy of the operating system for which the Software was designed, for your personal use or for the internal business use of your company. You may make a single copy of the Software for archival purposes and may use such copy only when the original copy is not in use.
When using our Software, you agree to be subject to the terms and conditions set forth below:
(a)You will: (i) use the Software only as an integral component of our product; (ii) not use the Software for development, compilation, debugging and similar design-time purposes; (iii) not reverse-compile or decompile, analyze, reverse-engineer, reverse-assemble or disassemble, unlock or otherwise attempt to discover the source code or underlying algorithms of the Software or attempt to do any of the foregoing in relation to the Object Code of the Software; (iv) not modify, adapt, translate or create any derivative works of the Software or merge the Software into any other software;
(b)You will not use, copy, modify, or transfer the Software, or any copy, adaptation, transcription, or merged portion thereof, except as expressly permitted herein by the third parties whose intellectual property has been licensed to iTop Inc.;
(c) Your rights will be non-exclusive, and except as permitted by iTop Inc., non-assignable provided always, however, that the provisions set forth in this Agreement applicable to you must also apply to any permitted assignee;
(d) Your obligations under the said agreement will remain in effect for as long as it continues to possess or use the Software, and such obligations will be for the benefit of and will be enforceable by the third parties whose intellectual property has been licensed to iTop Inc.
Trial Version: If you have received, downloaded, and/or installed a trial version of the Software and are hereby granted an evaluation license for the Software, you may use the Software only for evaluation purpose and only during the single applicable evaluation period, unless otherwise indicated, from the date of the initial installation. Any use of the Software for other purposes or beyond the applicable evaluation period is strictly prohibited.
Section 3. Installation and Scheduled Tasks
The installation process takes a few seconds and cannot be interrupted once started. By installing the Software, you acknowledge that silent installation will be performed to streamline the installation process. The Software may extract files, create and run scheduled tasks, create and run services on your computer. The scheduled tasks are enabled by default and can be disabled by you at any time from the Software settings. But if the skip UAC task is disabled or stopped, you need to manually operate the UAC prompt every time when it is prompted. The Software services may run in the background to deliver updates, automatic services, performance monitoring, and some other long-running functionality. These services can be automatically started when the computer boots and can be paused and restarted, but the program will not function correctly when its services are paused or stopped.
Section 4. Limited Warranty
iTop Inc. warrants and represents to you that the Software will substantially conform to and operate in accordance with its documentation for a period of sixty (60) days from the date you accept the terms of this Agreement and complete the download of the Software (“Warranty Period”). This Limited Warranty applies only if the non-conformance is reported to iTop Inc. during the Warranty Period and if iTop Inc. is able to confirm the substantial non-conformance. It is void if the non-conformance of the Software is the result of accident, abuse, misapplication, or inappropriate use of the Software. The exclusive remedy for breach of this warranty shall be, at iTop Inc.’s option, either (i) the repair or replacement of the Software; or (ii) a refund of the price, if any, which you paid to license the Software.
Section 5. Warranty Disclaimer
SUBJECT TO THE PROVISIONS OF SECTION 4 ABOVE, THE SOFTWARE IS BEING LICENSED ON AN "AS IS" AND “WITH ALL FAULTS” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU, AND, SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU AND NOT ITOP ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING OR REPAIR. TO THE EXTENT PERMITTED BY LAW, ITOP DISCLAIMS ALL OTHER WARRANTIES ON THE SOFTWARE, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. FURTHER, ITOP DOES NOT WARRANT OR ASSUME RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF ANY INFORMATION, TEXT, GRAPHICS, LINKS OR OTHER ITEMS CONTAINED WITHIN THE SOFTWARE. ITOP MAKES NO WARRANTIES RESPECTING ANY HARM THAT MAY BE CAUSED BY THE TRANSMISSION OF A COMPUTER VIRUS, WORM, TIME BOMB, LOGIC BOMB, OR OTHER SUCH COMPUTER PROGRAM. ITOP FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO AUTHORIZED USERS OR TO ANY THIRD PARTY. THE DURATION OF ANY STATUTORILY-REQUIRED WARRANTY PERIOD SHALL BE LIMITED TO THE TERM OF THE LIMITED WARRANTY. NOTWITHSTANDING THE FOREGOING, YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
Section 6. Disclaimer of Consequential Damages
UNDER NO CIRCUMSTANCES SHALL ITOP BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF THE SOFTWARE OR INABILITY TO USE THE SOFTWARE, INCLUDING WITHOUT LIMITATION, COMPUTER FAILURE, WORK STOPPAGE OR ANY OTHER DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Section 7. Limitation on Liability
iTop Inc. shall have no liability with respect to the content of the Software or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. ITOP’S TOTAL LIABILITY SHALL IN NO EVENT EXCEED THE ACTUAL PRICE PAID FOR THE SOFTWARE.
Section 8. Export Control
The United States controls the export of products and information. You agree to comply with such restrictions and not to export or re-export the Software to countries or persons prohibited under the export control laws. By downloading the Software, you are agreeing that you are not in a country where such export is prohibited or are a person or entity to which such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export or re-export of the Software.
Section 9. Taxes
You shall be responsible for the payment of all sales, use and similar taxes relating to the license of the Software.
Section 10. Government Users
If the Software is downloaded by or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), it is provided with Restricted Rights. Use, duplication, or disclosure of the Software by the U.S. Government is subject to restrictions as set forth in the Rights in Technical Data and Computer Software clause of DFARS and any other related applicable U.S. statutes or regulations.
Section 11. Termination
Without prejudice to any other rights, iTop Inc. may terminate this Agreement if you fail to comply with the terms and conditions set forth herein. In such event, you must destroy all copies of the Software in your possession.
Section 12. General Terms
If you live within the United States, the terms of this Agreement shall be governed by the laws of the State of California. If you live outside of the United States, the terms of this Agreement shall be governed by the laws of the Hong Kong Special Administrative Region of the People’s Republic of China. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. This Agreement constitutes the entire agreement between you and iTop Inc. with respect to this transaction. Any changes to this Agreement must be made in writing, signed by an authorized representative of iTop Inc.
Section 13. Privacy Policy
iTop Inc. may collect and use information concerning your use of the Software as set forth in its Privacy Policy.
We promise we will not reveal, rent or sell all your information to third parties outside the Software or its controlled subsidiaries and affiliates without your consent.
Section 14. Advertising
You acknowledge that iTop Inc. may at any time use this Software to display advertising or promotion materials to you, including without limitation, the release of third-party advertising, promotion of third-party products and services, or advertising or promotion of iTop Inc.'s other products and services.
iTop Inc. may change, without prior notice to you, the form (including without limitation, the display of third-party advertising on the launch page of this Software), pattern or scope of display, advertising or promotion.
The communications, business contacts, or participation in promotion activity, including the payment and delivery of products or services, or any other terms and conditions, representations and warranties related thereto, between you and advertisers communicated through this Software or otherwise are solely between you and such advertisers, and iTop Inc. is not obliged to review, investigate or examine the advertisements or the advertisers.
Section 15. Claims Resolution
Most customer concerns can be resolved through iTop’s online support center (available at https://www.itopvpn.com/support) or by calling our customer service department at the toll-free number iTop has provided you. In the event that iTop is unable to resolve a complaint to your satisfaction, this section explains how claims can be resolved through mediation, arbitration or litigation. It includes an arbitration provision.
For this section, the words "you" and "iTop" include any corporate parents, subsidiaries, affiliates or related persons or entities. The word "claim" means any current or future claim, dispute or controversy relating to the Product, this Agreement, and this Claims Resolution provision, except for the validity, enforceability or scope of the Arbitration provision. The word "claim" also includes but is not limited to: (i) initial claims, counter-claims, cross-claims and third-party claims; (ii) claims based upon contract, tort, fraud, statute, regulation, common law and equity; (iii) claims by or against any third-party using or providing any product, service or benefit in connection with Agreement; and (iv) claims that arise from or relate to advertisements, promotions or oral or written statements related to the Product. You or iTop may not sell, assign or transfer a claim.
Sending a Claim Notice
Before beginning a lawsuit, mediation or arbitration, you and iTop agree to send a written notice (a claim notice) to each party against whom a claim is asserted, in order to provide an opportunity to resolve the claim informally or through mediation. The claim notice must describe the claim and state the specific relief demanded.
Notice to iTop must include your name, address, the name of the Product at issue, the date of download or purchase of the Product, the email address you previously provided to us, if any, and the license code iTop provided to you, if any. The notice must be sent to supportpdf@itopvpn.com. If the claim proceeds to arbitration, the amount of any relief demanded in a claim notice will not be disclosed to the arbitrator until after the arbitrator rules.
Mediation
In mediation, a neutral mediator helps parties resolve a claim. The mediator does not decide the claim but helps the parties reach agreement.
Before beginning mediation, you or iTop must first send a claim notice. If you live within the United States, within thirty days after sending or receiving a claim notice, you or iTop may submit the claim to JAMS (1-800-352-5267, jamsadr.com), the American Arbitration Association ("AAA") (1-800-778-7879, adr.org), or another mutually agreed upon mediator, for mediation. If you live outside of the United States, you may contact iTop for information on potential mediators. iTop will pay the fees of the mediator.
All mediation-related communications are confidential, inadmissible in court and not subject to discovery. All applicable statutes of limitation will be tolled until termination of the mediation.
Either you or iTop may terminate the mediation at any time. The submission or failure to submit a claim to mediation will not affect your or iTop’s rights under this Claim Resolution provision.
Arbitration
If you live in the United States, you or iTop may elect to resolve any claim by individual arbitration. If you do not live in the United States, this arbitration subsection does not apply to you. In individual arbitration, claims are decided by a neutral arbitrator.
If arbitration is chosen by any party, neither you nor iTop will have the right to litigate that claim in court or have a jury trial on that claim. Further, neither you nor iTop will have the right to participate in a representative capacity or as a member of any class pertaining to any claim subject to arbitration. Arbitration procedures are generally simpler than the rules that apply in court, and discovery is more limited. The arbitrator's decisions are as enforceable as any court order and are subject to very limited review by a court. Except as set forth below, the arbitrator's decision will be final and binding. Other rights you or iTop would have in court may also not be available in arbitration.
Initiating Arbitration
Before beginning arbitration, you or iTop must first send a claim notice. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration provision and the selected organization's rules in effect when the claim is filed, except where those rules conflict with this Arbitration provision. If iTop choose the organization, you may select the other within thirty days after receiving notice of iTop’s selection. Contact JAMS or AAA to begin an arbitration or for other information. Claims also may be referred to another arbitration organization if you and iTop agree in writing or to an arbitrator appointed pursuant to section 6 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA").
You or iTop may otherwise elect to arbitrate any claim at any time unless it has been filed in court and trial has begun or final judgment has been entered. Either you or iTop may delay enforcing or not exercise rights under this Arbitration provision, including the right to arbitrate a claim, without waiving the right to exercise or enforce those rights.
iTop will not elect arbitration for any claim you file in small claims court, so long as the claim is individual and pending only in that court.
Limitations on Arbitration
If either party elects to resolve a claim by arbitration, that claim will be arbitrated on an individual basis. There will be no right or authority for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other licensees or other persons similarly situated.
The arbitrator's authority is limited to claims between you and iTop alone. Claims may not be joined or consolidated unless you and iTop agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply.
Arbitration Procedures
This Arbitration provision is governed by the FAA. The arbitrator will apply applicable substantive law, statutes of limitations and privileges. The arbitrator will not apply any federal or state rules of civil procedure or evidence in matters relating to evidence or discovery. Subject to the Limitations on Arbitration, the arbitrator may otherwise award any relief available in court. The arbitration will be confidential, but you may notify any government authority of your claim.
If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents, through a telephonic hearing, or by an in-person hearing. At any party's request, the arbitrator will provide a brief written explanation of the award. The arbitrator's award will be final and binding, except for any right of appeal provided by the FAA; however, any party will have thirty days to appeal the award by notifying the arbitration organization and all parties in writing. The organization will appoint a three-arbitrator panel to decide anew, by majority vote based on written submissions, any aspect of the decision objected to by any party. Judgment upon any award may be entered in any court having jurisdiction.
At your election, any in-person arbitration hearings will take place in the federal judicial district of your residence.
Arbitration Fees and Costs
You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in a court of general jurisdiction. iTop will be responsible for any additional arbitration fees. At your written request, iTop will consider in good faith making a temporary advance of your share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
Arbitration Awards
If the arbitrator rules in your favor for an amount greater than any final offer iTop made before arbitration, the arbitrator's award will include: (i) any money to which you are entitled, but in no case less than $2,000; and (ii) any reasonable attorneys’ fees and costs.
Your Right To Reject Arbitration
You may reject this Arbitration provision by sending a rejection notice to iTop at: supportpdf@itopvpn.com. Your rejection notice must be sent within 30 days after your first download or purchase of the Product. Your rejection notice must state that you reject the Arbitration provision and must include your name, address, the date of download or purchase of the Product, the name of the Product, the email address you previously provided to iTop, if any, and the license code iTop provided to you, if any. If your rejection notice complies with these requirements, this Arbitration provision will not apply to you, except for any claims subject to pending litigation or arbitration at the time you send your rejection notice. Rejection of this Arbitration provision will not affect your other rights or responsibilities under this Agreement. Rejecting this Arbitration provision will not affect your ability to use the Product.
Continuation
This Claims Resolution provision will survive termination of this Agreement or your license to use the Product. If any portion of this Claims Resolution provision, except as otherwise provided in the Limitations on Arbitration provisions above, is deemed invalid or unenforceable, it will not invalidate the remaining portions of this Claims Resolution provision.
END USER LICENSE AGREEMENT
Last Update: Aug 21 , 2022
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CONTINUING WITH THE DOWNLOAD AND INSTALLATION OF THE SOFTWARE PROGRAM IDENTIFIED ABOVE AND ANY ASSOCIATED SOFTWARE COMPONENTS, MEDIA, PRINTED MATERIALS OR OTHER RELATED ELECTRONIC DOCUMENTATION (COLLECTIVELY, THE “PRODUCT”). TO COMPLETE YOUR ORDER FOR THE PRODUCT YOU’VE REQUESTED, YOU MUST FIRST ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. By doing so, or otherwise installing, copying, or using the PRODUCT, you agree to be bound by the terms of this agreement. This agreement represents the entire agreement concerning the product between you and Itop, and it supersedes any prior proposal, Agreement, representation, or understanding between the parties. This agreement contains an arbitration provision.
Section 1. Intellectual Property Rights. The Product is protected by copyright and other intellectual property laws, and all intellectual property rights in and to the Product belong to iTop Inc. (“iTop”) and its subsidiaries. Further, all right, title and interest, including all intellectual property rights, in and to the content which may be accessed through use of the Product is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This Agreement grants you no rights to use such content. All rights not expressly granted to you are reserved by iTop. The Product is only licensed to you, not sold. You may not reproduce, publish, transmit, modify, create derivative works from, publicly display, or publicly perform the Product. Copying or storing the Product other than as expressly permitted in Section 2 below is prohibited unless you obtain prior written permission from iTop.
Section 2. License Grant and Prohibited Uses. iTop hereby grants you, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable and non-sublicensable license to use the number of copies of the Product which you have paid on the corresponding number of computers, running a validly licensed copy of the operating system for which the product was designed, for your personal use or for the internal business use of your company. You may make a single copy of the Product for archival purposes and may use such copy only when the original copy is not in use. You may not remove or alter any copyright notices on any copies of the Product. You may not use the Product on a computer network or allow concurrent use of the Product by more than one individual. You may not rent, lease or otherwise transfer the Product. Unless permitted by law, you may not reverse engineer, decompile, or disassemble the Product or attempt to do so. Any supplemental code that iTop may provide you in connection with any support services agreed upon between the parties shall be considered part of the Product and shall be subject to the terms and conditions of this Agreement. You must comply with all applicable laws regarding use of the Product.
Trial Version: If you have received, downloaded and/or installed a trial version of the Product and are hereby granted an evaluation license for the Product, you may use the Product only for evaluation purpose and only during the single applicable evaluation period, unless otherwise indicated, from the date of the initial installation. Any use of the Product for other purposes or beyond the applicable evaluation period is strictly prohibited.
Section 3. Installation and Scheduled Tasks. The installation process takes a few seconds and cannot be interrupted once started. By installing this Product, you acknowledge that silent installation will be performed to streamline the installation process. The product may extract files, create and run scheduled tasks, create and run services on your computer. The scheduled tasks are enabled by default and can be disabled by you at any time from the product settings. The product services may run in the background to deliver updates, automatic services, performance monitoring, and some other long-running functionality. These services can be automatically started when the computer boots and can be paused and restarted. But the program will not function correctly when its services are paused or stopped.
Section 4. Limited Warranty. iTop warrants and represents to you that the Product will substantially conform to and operate in accordance with its documentation for a period of sixty (60) days from the date you accept the terms of this Agreement and complete the download of the Product (“Warranty Period”). This Limited Warranty applies only if the nonconformance is reported to iTop during the Warranty Period and if iTop is able to confirm the substantial non-conformance. It is void if the non-conformance of the Product is the result of accident, abuse, misapplication, or inappropriate use of the Product. The exclusive remedy for breach of this warranty shall be, at iTop’s option, either (i) the repair or replacement of the Product; or (ii) a refund of the price, if any, which you paid to license the Product.
Section 5. Warranty Disclaimer. SUBJECT TO THE PROVISIONS OF SECTION 4 ABOVE, THE PRODUCT is being licensed on an “As Is” and “with all faults” basis without any express or implied warranty of any kind. The entire risk as to the quality and performance of the Product is with you, and, should the product prove defective, you and not iTOP assume the entire cost of all necessary servicing or repair. TO THE EXTENT PERMITTED BY LAW, ITOP DISCLAIMS ALL OTHER WARRANTIES ON THE PRODUCT, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. FURTHER, ITOP does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the Product. ITOP makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. ITOP further expressly disclaims any warranty or representation to authorized users or to any third party. THE DURATION OF ANY STATUTORILY-REQUIRED WARRANTY PERIOD SHALL BE LIMITED TO THE TERM OF THE LIMITED WARRANTY. NOTWITHSTANDING THE FOREGOING, YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE AND COUNTRY TO COUNTRY.
Beta Software: If the Product that you have received has been identified by iTop as “Beta” software, you may use the Product for testing purpose. The Beta Software IS BELIEVED TO CONTAIN DEFECTS AND A PRIMARY PURPOSE OF THIS BETA TESTING LICENSE IS TO OBTAIN FEEDBACK ON SOFTWARE PERFORMANCE AND THE IDENTIFICATION OF DEFECTS. You are advised to safeguard important data, to use caution and not to rely in any way on the correct functioning or performance of software and/or accompanying materials. SUBJECT TO THE PROVISIONS OF SECTION 4 ABOVE, THE PRODUCT is being licensed on an “As Is” and “with all faults” basis without any express or implied warranty of any kind. The entire risk as to the quality and performance of the Product is with you, and, should the product prove defective, you and not iTop assume the entire cost of all necessary servicing or repair.
Section 6. Disclaimer of Consequential Damages . UNDER NO CIRCUMSTANCES SHALL ITOP BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER ARISING OUT OF THE USE OF THE PRODUCT OR INABILITY TO USE THE PRODUCT, INCLUDING WITHOUT LIMITATION, COMPUTER FAILURE, WORK STOPPAGE OR ANY OTHER DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES AND COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Section 7. Limitation on Liability . ItOP shall have no liability with respect to the content of the PRODUCT or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information. ITOP’S TOTAL LIABILITY SHALL IN NO EVENT EXCEED THE ACTUAL PRICE PAID FOR THE PRODUCT.
Section 8. Export Control . The United States controls the export of products and information. You agree to comply with such restrictions and not to export or re-export the Product to countries or persons prohibited under the export control laws. By downloading the Product, you are agreeing that you are not in a country where such export is prohibited or are a person or entity to which such export is prohibited. You are responsible for compliance with the laws of your local jurisdiction regarding the import, export or re-export of the Product.
Section 9. Taxes . You shall be responsible for the payment of all sales, use and similar taxes relating to the license of the Product.
Section 10. Government Users . If the Product is downloaded by or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), it is provided with Restricted Rights. Use, duplication, or disclosure of the Product by the U.S. Government is subject to restrictions as set forth in the Rights in Technical Data and Computer Software clause of DFARS and any other related applicable U.S. statutes or regulations.
Section 11. Termination . Without prejudice to any other rights, iTop may terminate this Agreement if you fail to comply with the terms and conditions set forth herein. In such event, you must destroy all copies of the Product in your possession.
Section 12. General Terms . If you live within the United States, the terms of this Agreement shall be governed by the laws of the State of California. If you live outside of the United States, the terms of this Agreement shall be governed by the laws of the Hong Kong Special Administrative Region of the People’s Republic of China. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term. This Agreement constitutes the entire agreement between you and iTop with respect to this transaction. Any changes to this Agreement must be made in writing, signed by an authorized representative of iTop.
Section 13. Claims Resolution . Most customer concerns can be resolved through iTop’s online support center (available at https://www.itopvpn.com/support) or by calling our customer service department at the toll-free number iTop has provided you. In the event that iTop is unable to resolve a complaint to your satisfaction, this section explains how claims can be resolved through mediation, arbitration or litigation. It includes an arbitration provision.
For this section, the words “you” and “iTop” include any corporate parents, subsidiaries, affiliates or related persons or entities. The word “claim” means any current or future claim, dispute or controversy relating to the Product, this Agreement, and this Claims Resolution provision, except for the validity, enforceability or scope of the Arbitration provision. The word “claim” also includes but is not limited to: (i) initial claims, counter-claims, cross-claims and third-party claims; (ii) claims based upon contract, tort, fraud, statute, regulation, common law and equity; (iii) claims by or against any third-party using or providing any product, service or benefit in connection with Agreement; and (iv) claims that arise from or relate to advertisements, promotions or oral or written statements related to the Product. You or iTop may not sell, assign or transfer a claim.
Sending a Claim Notice
Before beginning a lawsuit, mediation or arbitration, you and iTop agree to send a written notice (a claim notice) to each party against whom a claim is asserted, in order to provide an opportunity to resolve the claim informally or through mediation. The claim notice must describe the claim and state the specific relief demanded.
Notice to iTop must include your name, address, the name of the Product at issue, the date of download or purchase of the Product, the email address you previously provided to us, if any, and the license code iTop provided to you, if any. The notice must be sent to feedback@itopvpn.com. If the claim proceeds to arbitration, the amount of any relief demanded in a claim notice will not be disclosed to the arbitrator until after the arbitrator rules.
Mediation
In mediation, a neutral mediator helps parties resolve a claim. The mediator does not decide the claim but helps the parties reach agreement.
Before beginning mediation, you or iTop must first send a claim notice. If you live within the United States, within thirty days after sending or receiving a claim notice, you or iTop may submit the claim to JAMS (1-800-352-5267, jamsadr.com), the American Arbitration Association (“AAA”) (1-800-778-7879, adr.org), or another mutually agreed upon mediator, for mediation. If you live outside of the United States, you may contact iTop for information on potential mediators. iTop will pay the fees of the mediator.
All mediation-related communications are confidential, inadmissible in court and not subject to discovery. All applicable statutes of limitation will be tolled until termination of the mediation.
Either you or iTop may terminate the mediation at any time. The submission or failure to submit a claim to mediation will not affect your or iTop’s rights under this Claim Resolution provision.
Arbitration
If you live in the United States, you or iTop may elect to resolve any claim by individual arbitration. If you do not live in the United States, this arbitration subsection does not apply to you. In individual arbitration, claims are decided by a neutral arbitrator.
If arbitration is chosen by any party, neither you nor iTop will have the right to litigate that claim in court or have a jury trial on that claim. Further, neither you nor iTop will have the right to participate in a representative capacity or as a member of any class pertaining to any claim subject to arbitration. Arbitration procedures are generally simpler than the rules that apply in court, and discovery is more limited. The arbitrator's decisions are as enforceable as any court order and are subject to very limited review by a court. Except as set forth below, the arbitrator's decision will be final and binding. Other rights you or iTop would have in court may also not be available in arbitration.
Initiating Arbitration
Before beginning arbitration, you or iTop must first send a claim notice. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration provision and the selected organization's rules in effect when the claim is filed, except where those rules conflict with this Arbitration provision. If iTop choose the organization, you may select the other within thirty days after receiving notice of iTop’s selection. Contact JAMS or AAA to begin an arbitration or for other information. Claims also may be referred to another arbitration organization if you and iTop agree in writing or to an arbitrator appointed pursuant to section 6 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the “FAA”).
You or iTop may otherwise elect to arbitrate any claim at any time unless it has been filed in court and trial has begun or final judgment has been entered. Either you or iTop may delay enforcing or not exercise rights under this Arbitration provision, including the right to arbitrate a claim, without waiving the right to exercise or enforce those rights.
iTop will not elect arbitration for any claim you file in small claims court, so long as the claim is individual and pending only in that court.
Limitations on Arbitration
If either party elects to resolve a claim by arbitration, that claim will be arbitrated on an individual basis. There will be no right or authority for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other licensees or other persons similarly situated.
The arbitrator's authority is limited to claims between you and iTop alone. Claims may not be joined or consolidated unless you and iTop agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award. Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply.
Arbitration Procedures
This Arbitration provision is governed by the FAA. The arbitrator will apply applicable substantive law, statutes of limitations and privileges. The arbitrator will not apply any federal or state rules of civil procedure or evidence in matters relating to evidence or discovery. Subject to the Limitations on Arbitration, the arbitrator may otherwise award any relief available in court. The arbitration will be confidential, but you may notify any government authority of your claim.
If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents, through a telephonic hearing, or by an in-person hearing. At any party's request, the arbitrator will provide a brief written explanation of the award. The arbitrator's award will be final and binding, except for any right of appeal provided by the FAA; however, any party will have thirty days to appeal the award by notifying the arbitration organization and all parties in writing. The organization will appoint a three-arbitrator panel to decide anew, by majority vote based on written submissions, any aspect of the decision objected to by any party. Judgment upon any award may be entered in any court having jurisdiction.
At your election, any in-person arbitration hearings will take place in the federal judicial district of your residence.
Arbitration Fees and Costs
You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in a court of general jurisdiction. iTop will be responsible for any additional arbitration fees. At your written request, iTop will consider in good faith making a temporary advance of your share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
Arbitration Awards
If the arbitrator rules in your favor for an amount greater than any final offer iTop made before arbitration, the arbitrator's award will include: (i) any money to which you are entitled, but in no case less than $2,000; and (ii) any reasonable attorneys’ fees and costs.
Your Right To Reject Arbitration
You may reject this Arbitration provision by sending a rejection notice to iTop at: feedback@itopvpn.com. Your rejection notice must be sent within 30 days after your first download or purchase of the Product. Your rejection notice must state that you reject the Arbitration provision and must include your name, address, the date of download or purchase of the Product, the name of the Product, the email address you previously provided to iTop, if any, and the license code iTop provided to you, if any. If your rejection notice complies with these requirements, this Arbitration provision will not apply to you, except for any claims subject to pending litigation or arbitration at the time you send your rejection notice. Rejection of this Arbitration provision will not affect your other rights or responsibilities under this Agreement. Rejecting this Arbitration provision will not affect your ability to use the Product.
