Terms and Conditions

THESE TERMS

1. What these terms cover
   These are the terms and conditions by which we, ESET Software Australia Pty Ltd, supply our ESET products (“Software”) and/or the Help-Desk Service (as defined in clause 5) to you.

2. Why you should read them.

   1. Please read these terms carefully before you submit your order to us. These terms tell you who we are, how we will provide the Software and/or the Help-Desk Service to you, how you and we may change or end the contract, what to do if there is a problem and other important information.

   2. Using the website www.ESET.com/au (“Website”), or by placing an order for the Software via the Website, by telephone, email or post, indicates that you accept these terms regardless of whether or not you choose to register with us. If you do not accept these terms, please do not use the Website and/or make an order for the Software.

   3. If you think that there is a mistake in these terms, please contact us to discuss.

3. Consumers only.

   1. These terms and conditions apply to consumer customers only. If you are a business, separate terms and conditions will apply to the supply of Software and/or the Help-Desk Service.

   2. By making a purchase for the Software under these terms and conditions for consumers, you warrant to us that you are a consumer customer (being an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession). It is a condition of any contract made in accordance with these terms and conditions that you are a consumer customer. If we find out that you are a business customer (meaning a person acting for purposes relating to that person’s trade, business, craft or profession, whether acting personally or through another person acting in the trader’s name or on the trader’s behalf), then we may terminate the contract in accordance with clause 11.1.1 and you may be required to compensate us for your breach of the contract in accordance with clause 11.2.

INFORMATION ABOUT US AND HOW TO CONTACT US

1. Who we are

   We are ESET Software Australia Pty Ltd (ACN 164 883 774) of Level 20, 111 Pacific Highway, North Sydney, NSW 2060, Sydney, Australia.

2. Our head licensor.

   We are licenced by our head licensor, ESET, spol. s r. o., having its registered office at Einsteinova 24, 851 01 Bratislava, Slovak Republic (“ESET, spol. S.r.o.”), to grant you access to the Software. Before you can use the Software, you will also need to agree to ESET, spol. S.r.o.’s relevant end-user licence agreement or other licence terms included with the Software (“Licence Agreement”).

3. How to contact us.

   You can contact us by telephoning our customer service team on 1300 084 040 or by writing to us at www.eset.com/au/support/contact/.

4. How we may contact you.

   If we have to contact you we will do so by telephone or by writing to you at the email address or postal address you provides to us in your order.

OUR CONTRACT WITH YOU

1. How you may order Software.

   You may make an offer to purchase Software by placing an order via the Website, phone or email. We accept Visa, American Express, PayPal and Mastercard. PayPal is available for one-time purchases only (not auto-renewals).

2. How we will accept your order.

   Our acceptance of your order will take place when we email you to confirm that we have accepted it (“Acceptance”), at which point a contract will come into existence between you and us. Our Acceptance will include the activation key with Software installation instructions and a tax invoice.

3. If we cannot accept your order.

   If we are unable to accept your order, we will inform you of this in writing and will not charge you for the Software. This might be because of unexpected limits on our resources which we could not reasonably plan for or because we have identified an error in the price or description of the Software.

THE SOFTWARE

1. Intellectual Property Rights in the Software.

   1. All intellectual property rights in the Software are owned by our head licensor, ESET, spol. s r. o. and/or its licensors. ESET, spol. s r. o. reserves all rights to the Software, save as expressly granted under the Licence Agreement.

2. Licence Agreement.

   1. We are licenced to grant you access to the Software, but subject to you agreeing to enter into the Licence Agreement with ESET, spol. s r. o. As such, the Software supplied by us should not be installed until you have agreed to the terms of the Licence Agreement. The Software is licensed, not sold (which means that you do not acquire ownership of the Software, but only acquire the right to use it as detailed in the Licence Agreement and clause 4.3 below). The Software may not be copied, adapted, translated, made available, distributed, varied, modified, disassembled, decompiled, reverse engineered or combined with any other software, save to the extent that:

      1. this is permitted in the Licence Agreement; or

      2. applicable law expressly allows such a right which cannot legally be excluded by contract.

3. Licence Period.

   Your right to use the Software shall be time limited. The term of your use of the Software shall commence on the date of your agreement to the Licence Agreement and shall continue for the period of time confirmed in our Acceptance (“Licence Period”), unless terminated earlier in accordance with these terms and conditions. Where you have opted for annual auto-renewal under clause 8.6, your Licence Period under the existing Licence Agreement will be extended upon each annual auto-renewal for a further period of 1 year, or such other duration as specified during your purchase selection, and any reference to Licence Period in these terms shall be deemed to include any such extension(s).
   
   

4. Updates to the Software.

   1. During the Licence Period, and under the condition that you have entered into the Licence Agreement, we will provide periodical updates to the Software so as to continually protect your device(s) against viruses or malware. No prior notification of such updates will be given and therefore we require you to fully comply with your obligations under clause 4.5.1 to ensure that such updates are successfully received by your device(s).

   2. Where the Licence Agreement ends for any reason, we will immediately cease to provide any updates and, as a consequence, your device(s) may not be protected against viruses or malware. Where the Licence Agreement ends for any reason, you must therefore fully comply with clause 4.5.2 and we shall have no liability to you for loss suffered if you fail to do so.
      
      

5. Your obligations in respect of the Software.

   You must fully comply with the following obligations throughout the Licence Period:

   1. You must ensure that all of your devices have access to the internet to receive our updates under clause 4.4.1. We shall have no responsibility where you suffer a loss because we have been unable to update the Software on your device(s) due to you failing to comply with this clause.

   2. If the Licence Agreement ends for any reason, you must immediately remove the Software from your device(s). If you continue to use the Software on your device(s) you acknowledge and accept that no further updates will be sent by us under clause 4.4 and as a consequence, your device(s) may no longer be protected against viruses or malware and you therefore do so entirely at your own risk.
      
      

THE SERVICES

1. Technical support services.

   Subject to the following conditions, we are able to offer you, at no charge, a help-desk service to assist you with any problems that you might have with installing the Software and a technical support help-desk service during the Licence Period to use the Software (“Help-Desk Service”):

   1. the Help-Desk Service shall be supplied during normal business hours (9.00 am to 5.0 pm (AEDT) Monday to Friday excluding public holidays) and shall cover only the following scope: email, chat and telephone support, which will assist in addressing ESET and malware related issues related to installation and maintenance and by supplying you with trouble shooting advice and/or the appropriate documented (known) solution(s);

   2. in providing the Help-Desk Service we shall provide the services with reasonable care and skill, however as there is no charge to you for using the Help-Desk Service, the services shall be provided without any warranty, guaranty or representation of any kind whatsoever;

   3. it is your sole responsibility to back up all your data, software and programs before making use of the Help-Desk Service;

   4. as the Help-Desk Service is a complementary service, we shall be under no obligation to supply the Help-Desk Service and we reserve the right to withdraw, suspend or to terminate the Help-Desk Service at any time;

   5. we cannot guarantee any response times when you make an enquiry of the Help-Desk Service;

   6. by making use of the Help-Desk Service, you agree that we shall have no liability to you whatsoever for any loss or liability that you may suffer and which arises from your use of or our provision of the Help-Desk Service except where such loss or liability is due to any negligent act or omission on our part; and

   7. where the Licence Agreement ends for any reason, we shall have no further obligation to provide the Help-Desk Service to you. We may suggest that you renew your Licence Agreement and may assist you to do so, however we shall have no liability for any loss suffered by you during any period in which the Licence Agreement has ended and/or as described in clauses 4.4 and/or clause 4.5.

2. Additional optional services.

   1. If you require technical support services beyond those set out in clause 5.1, then any such additional service may be supplied subject to you entering into a separate agreement with us for the provision of our premium technical support service.
      
      

YOUR RIGHTS TO MAKE CHANGES

1. If you wish to make a change to the Software you have ordered please contact us.
   We will let you know if the change is possible. If it is possible we will let you know about any changes to the price of the Software, the timing of supply or anything else which would be necessary as a result of your requested change and ask you to confirm whether you wish to go ahead with the change.

OUR RIGHTS TO MAKE CHANGES

1. Minor changes to the Software and/or the Help-Desk Service.

   1. We may change the Software and/or the Help-Desk Service:

      1. to reflect changes in relevant laws and regulatory requirements; and/or

      2. to implement minor technical adjustments and improvements, for example to address a security threat. These changes will not affect your use of the Software and/or the Help-Desk Service.

2. Updates to the Software.

   1. We may update or require you to update the Software, provided that the Software (following any update) shall always match the description of it that we provided to you before you bought it.

3. Updates to these terms and conditions and/or the Licence Agreement.

   1. We may update these terms and conditions and/or the Licence Agreement from time to time to reflect changes in relevant laws and regulatory requirements. If we do update these terms and conditions and/or the Licence Agreement, we will notify you and you may then contact us to end the contract before the change takes effect and receive a refund for any Software paid for but not received.

PROVIDING THE SOFTWARE

1. When we will provide the Software.
   We will make the Software available for download by you as soon as we accept your order. We will continue to supply the Software to you until the Licence Period expires or you end the contract as described in Clause 9 or we end the contract by written notice to you as described in Clause 11. Delivery of the information referred to in clause 3.1 shall be to a valid e-mail address submitted by you. You must check your email address details on any Order Acknowledgement we provide and notify us without delay of any errors or omissions. We shall have no liability for failing to provide the Software where you have not fully complied with clause 8.3 below.
   
   

2. We are not responsible for delays outside our control.
   If our supply of the Software and/or the Help-Desk Service is delayed by an event outside our control then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for delays caused by the event, but if there is a risk of substantial delay you may contact us to end the contract and receive a refund for any Software you have paid for but not received.
   Examples of events outside our control include, but are not limited to:

   1. strikes, lock-outs or other industrial action; or

   2. civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; or

   3. fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; or

   4. impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; or

   5. impossibility of the use of public or private telecommunications networks.

3. What will happen if you do not give required information to us.
   We may need certain information from you so that we can supply the Software and/or the Help-Desk Service to you, for example, a valid email address and the full name of the person who will enter into the Licence Agreement and use the Software. If you do not give us this information within a reasonable time of us asking for it, or if you give us incomplete or incorrect information, we may either end the contract (and clause 11.2 will apply) or make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We will not be responsible for supplying the Software and/or the Help-Desk Service late or not supplying any part of it if this is caused by you not giving us the information we need within a reasonable time of us asking for it. It is your responsibility to inform us if your information changes during the term of the contract, even where we have not asked for it, and we shall have no liability for any loss you suffer as a result of us being unable to provide the Software and/or the Help-Desk Service, any periodic updates to the Software and/or any auto-renewal under clause 8.6 as a result of you not promptly providing us with such updated information.

4. We may suspend supply of the Software and/or the Help-Desk Service if you do not pay.
   If you do not pay us for the Software when you are supposed to (see clause 13.4), we may suspend supply of the Software and/or the Help-Desk Service until you have paid us the purchase price in full for the Software. We will contact you to tell you we are suspending supply of the Software and/or the Help-Desk Service until we have received full payment for the Software in cleared funds.

5. We may suspend supply of the Software and/or the Help-Desk Service if you use the Software on more devices than you have paid for under your order for the Software.
   If you use the Software on more devices than you have paid for under your order for the Software, we may, at our sole discretion either:

   1. suspend the supply of the Software and/or the Help-Desk Service until you have paid for all such additional use in full; or

   2. terminate the contract in accordance with clause 11.1.4.

6. Annual auto-renewal of the contract for the Software
   If you have opted for the ESET subscription model, we will annually auto-renew your contract for the Software and the following provisions of this clause 8.6 will also apply to you.

   1. Reminders
      We will send you reminders by email that your contract for the Software is due to be auto-renewed, 30 days prior to the date on which the Licence Period for the Software is due to expire. This email will confirm the renewal price.

   2. Payment of Software purchased under the subscription model
      You will be charged the Recommended Retail Price (RRP) which applies at the date of renewal, for the Software.

   3. Opting out of the annual auto-renewal of the Software
      You may opt out of the annual auto-renewal of the Software at any time, on the condition that no payments are due and outstanding to us. You may unsubscribe by clicking on the UNSUBSCRIBE link in the confirmation email we send you. You can also unsubscribe before your licence expires by clicking on the unsubscribe link included on ESET’s renewal reminder emails that will be sent to you before the expiry date. Turning off your subscription will not cancel your licence or end your protection. Your ESET protection will continue until your licence expires. We will notify you by email before your license expires so you can renew manually.

   4. Updating your information
      Upon annual auto-renewal, payment shall be taken for the next year upfront using the payment details we currently hold for you and the Software and/or any updates to the Software will be supplied to you using the information we currently hold for you. We shall have no liability for any loss you suffer as a result of us being unable to complete the annual auto-renewal, provide the Software and/or the Help-Desk Service and/or any periodic updates to the Software on any device(s) as a result of you failing to promptly advise us of your updated information in accordance with clause 8.3.

YOUR WARRANTY AND RIGHTS TO END THE CONTRACT

1. Your rights under the Australian Consumer Law

   1. Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled:

      1. to cancel your service contract with us; and

      2. to a refund for the unused portion, or to compensation for its reduced value.

   2. You are also entitled to choose a refund or replacement for major failures with goods. If a failure with the goods or service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time. If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.

2. How to return the software and receive a full refund

   1. To receive a full refund (where there are no failures with the goods or services we provide), you must cancel your software licence and your subscription within 30 days of purchase.  If you do so, you will no longer be protected by the ESET security solution and will not receive any software updates. To cancel please email www.eset.com/au/support/contact/ or call us on 1300 084 040.

   2. We will refund the funds within 10 business days. You will no longer have a licence to the relevant ESET product. If you change your mind you can purchase a new licence and secure your devices at any stage.

   3. Subject to your legal rights under the Australian Consumer Law (as described in clause 9.1), if you cancel your licence and your subscription after 30 days from the date of purchase you will not be eligible for a refund. You will however continue to have access to your subscription for the remainder of the Licence Period. You will not be charged the annual fee again, unless you re-subscribe.

3. How long do I have to change my mind?

   1. You have 30 days after the date of purchase, to change your mind and receive a full refund of the purchase price for the Software even after you have downloaded and begun using the Software.

   2. Terms and ConditionsIf you have opted for the annual auto-renewal of the contract for the Software under clause 8.6, you will have a 30 day “cooling-off period” from the date on which each annual payment for the Software is taken by us, including where you have downloaded and begun using the Software. After the initial 30 day “cooling-off period”, you may still cancel the contract but you will not be eligible for a refund (subject to your rights under the Australian Consumer Law as described in clause 9.1). You will however continue to have access to your subscription for the remainder of the Licence Period. You will not be charged the annual fee again, unless you re-subscribe.

HOW TO END THE CONTRACT WITH US

1. Tell us you want to end the contract.
   To end the contract with us, please let us know by calling customer services on 1300 084 040 or contacting us at www.eset.com/au/support/contact/. Please provide your name, home address, details of the order and, where available, your phone number and email address.

2. How we will refund you.
   We will refund you the price you paid for the Software by the method you used for payment. However, we may make deductions from the price, as described at clause 11.2.

3. When your refund will be made.
   We will make any refunds due to you as soon as possible. If you are exercising your right to change your mind then your refund will be made within 14 days of your telling us you have changed your mind.

OUR RIGHTS TO END THE CONTRACT

1. We may end the contract if you break it.

   We may end the contract for the Software and/or the Help-Desk Service at any time by writing to you if:

   1. you warrant that you are a consumer under clause 1.3 and enter into a contract under these terms and conditions as a consumer customer, but we have reasonable grounds to believe that you are a business customer and/or are acting for purposes relating to your trade, business, craft or profession, whether acting personally or through another person acting in your name or on your behalf;

   2. you do not make any payment to us when it is due and you still do not make payment within 14 days of us reminding you that payment is due;

   3. you do not, within a reasonable time of us asking for it, provide us with information that is necessary for us to provide the Software and/or the Help-Desk Service;

   4. you use the Software on more devices than you have paid for under your order for the Software and fail to pay for all additional usage when requested to do so by us;

   5. you fail to enter into, or materially breach the terms of, the Licence Agreement, including (but not limited to) where you have opted for annual auto-renewal under clause 8.6;

   6. you fail to fully comply with your obligations under clause 4.5; or

   7. the Software is discontinued and/or it becomes not possible for us to supply the Software for any reason.

2. You mustcompensate us if you break the contract.

   If we end the contract in the situations set out in clause 11.1 we will refund any money you have paid in advance for Software we have not provided but we may deduct or charge you reasonable compensation for the net costs we will incur as a result of your breaking the contract.

IF THERE IS A PROBLEM WITH THE SOFTWARE

1. How to tell us about problems.
   If you have any questions or complaints about the Software and/or the Help-Desk Service, please contact us on www.eset.com/au/support/contact/ or call us on 1300 084 040.

PRICE AND PAYMENT

1. Where to find the price for the Software.
   The price of the Software (which includes GST) will be the price indicated on the order pages of our Website when you placed your order. We take all reasonable care to ensure that the price of the Software advised to you is correct.
   The Help-Desk Service is provided free of charge.

2. Price during and after a promotion
   If you first purchase Software using a promo code or during a promotion, the discounted price that you pay for the Software only applies to your initial purchase. Should you renew your Software licence, you will be charged the RRP at the time of renewal.

OUR RESPONSIBILITYFOR LOSS OR DAMAGE SUFFERED BY YOU

1. We are responsible to you for foreseeable loss and damage caused by us.
   If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking this contract or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time the contract was made, both we and you knew it might happen, for example, if you discussed it with us during the sales process.

2. We do not exclude or limit in any way our liability to you where it would be unlawful to do so.
   This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors; for fraud or fraudulent misrepresentation; for breach of your legal rights.

3. If defective Software which we have supplied damages a device or digital content belonging to you and this is caused by our failure to use reasonable care and skill we will either repair the damage or pay you compensation.
   However, we will not be liable for damage which you could have avoided by following our advice to apply an update offered to you free of charge or for damage which was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.

4. We are not liable for business losses.
   The Software and/or the Help-Desk Service is supplied to you for domestic and private use only. If you use the Software and/or the Help-Desk Service for any commercial, business or re-sale purpose (if applicable) we will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
   
   

HOW WE MAY USE YOUR PERSONAL INFORMATION AND MARKETING UPDATES

1. How we may use your personal information.
   We will only use your personal information as set out in our privacy policy, available on our website.

2. Email marketing

   You can always opt-out from the marketing updates we send via email, however you will not be able to unsubscribe from e-mails that are:

   1. related to your method of payment; or

   2. notify you that you are about to be charged to cover your licence subscription for a further year (where you have a subscription).

OTHER IMPORTANT TERMS

1. We may transfer this agreement to someone else.

2. We may transfer our rights and obligations under these terms to another organisation.

3. You need our consent to transfer your rights to someone else (except that you can always transfer our guarantee).

   1. You may only transfer your rights or your obligations under these terms to another person if we agree to this in writing.

   2. Nobody else has any rights under this contract.

      This contract is between you and us. No other person shall have any rights to enforce any of its terms.

      Neither of us will need to get the agreement of any other person in order to end the contract or make any changes to these terms.

4. If a court finds part of this contract illegal, the rest will continue in force.
   Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.

5. Even if we delay in enforcing this contract, we can still enforce it later.
   If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

6. Which laws apply to this contract and where you may bring legal proceedings.
   These terms are governed by the laws of New South Wales, Australia and you can bring legal proceedings in respect of the Software in the courts of New South Wales.