1.          Service. As part of the Service, Absolute will provide you with use of the Online Service, including a browser interface and related Online data encryption, transmission, access and storage via a Monitoring Center, as well as Client Software components of the Absolute Technology. If you are using the Computrace® Enterprise edition of the Service, for the purposes of this Agreement, the Service (a) will be provided via a Monitoring Center (the Enterprise Server) operated and maintained internally by you, (b) all references to “Service” in this Agreement shall be interpreted to mean only the Service features specifically provided to you in the Computrace Enterprise edition, and (c) the features that would otherwise have been provided directly to you by Absolute Online via its Monitoring Center shall be operated and maintained internally by you.  Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement and any materials available on the http://www.absolute.com and http://www.lojackforlaptops.com websites incorporated by reference herein, including but not limited to Absolute’s Privacy and Security Policy.  Absolute may change this Agreement at any time without notice. If we make a material change to this Agreement, we will notify you at least thirty (30) days before the change takes place. If you do not agree to the change, you must cancel and stop using the Service before the change takes place. If you do not stop using the Service, your continued use of the Service will be under the changed Agreement.

2.          Service Features.  The Service is based on Absolute’s proprietary Computrace® technology and is offered in different editions, each of which contains different features:

3.          License.  Subject to the terms, conditions, restrictions and other provisions of this Agreement, upon completing registration for the Service, Absolute grants to you a non-exclusive, non-transferable license to use the Service solely for your own internal use during the Service Term and only on the Customer Computer on which the Absolute Technology is installed.  All rights not expressly granted to you are reserved by Absolute and, if applicable, its licensors.  If the license is being granted for the purpose of an evaluation by you of the Service, the Content and/or the Absolute Technology, then your license shall be valid for a maximum of sixty (60) days, unless otherwise specifically agreed in writing, and the Service may be used only for the purpose of such evaluation.

4.          Things You Must Do In Using the Service. In using the Service, you:

5.          Things You Must Not Do In Using the Service.  In using the Service, you must not:

6.          Orders. You may purchase license(s) to use the Service by sending an Order to Absolute or to an Absolute authorized reseller.  Unless otherwise expressly agreed in writing, Absolute in its sole discretion will have the right to accept or reject any Order and is not bound to sell any Service. If an Order has not been rejected by Absolute, the Service licensed will be governed by this Agreement.  In the event an Order contains any additional terms and conditions, such terms and conditions shall not apply to, become part of, or supersede this Agreement, regardless of any statement to the contrary contained therein.

7.          Term of Agreement.  Unless earlier terminated as provided for elsewhere in this Agreement, this Agreement shall be effective from the first date of the Service Term and shall automatically expire immediately after the last day of the final remaining Service Term. A Service Term (which cannot exceed five (5) years) either expires automatically or may terminate earlier as provided in this Agreement.

8.          Termination for Convenience.  Either party may terminate a Service Term at any time, for convenience and with or without cause, immediately upon electronic notification to the other party at the last email address provided by such party. In the event of such termination for convenience only by Absolute, Absolute will refund a pro-rated portion of the purchase price to you, to account for the unused portion of the Service Term.  No such refund shall be payable in the case of the termination of a Service Term relating to an evaluation by you of the Service and/or the Absolute Technology or for an Enterprise Server.

9.          Events Causing Termination of Service Term.  The following events shall cause the Service Term applicable to your Customer Computer to terminate automatically without notice:

10.       Post Termination. If this Agreement has been terminated for any reason,  you shall

11.       Theft Recovery Feature. If you have purchased a Service Term that includes a Theft Recovery feature, which is available only in the Theft Recovery Territory, you hereby consent to Absolute coordinating with local law enforcement officials to recover your Customer Computer, and acknowledge that Absolute relies upon their cooperation to carry out such a recovery.  If the contact from the Customer Computer to the Monitoring Center after the Post Theft Report Date originates from outside of the Theft Recovery Territory, the Theft Recovery Feature is no longer available and is replaced by the Data Delete Feature, and a successful launch of a Data Delete Operation (of any type) or a Customer’s decision not to launch a Data Delete Operation fulfills any applicable performance guarantee. You acknowledge and agree that information or data recovered from the Customer Computer and relevant to the recovery of the Customer Computer may be disclosed to Absolute theft recovery personnel or the applicable law enforcement officials without further notification or consent.  Upon your activation of the Theft Recovery feature in accordance with this Agreement, Absolute will use reasonable efforts to locate the missing Customer Computer and you agree to fully cooperate with such efforts.  From time to time you will be informed of the status of the effort to recover your Customer Computer, primarily through e-mail communication to your designated e-mail address.  You acknowledge and agree that the law enforcement agency may require your attendance in any criminal proceeding arising from the Recovery.

12.       Theft Recovery Activation.  In order to activate the Theft Recovery feature, as quickly as possible but in any event on a date (the “Post Theft Report Date”) that is no later than the date which is ninety (90) days after the actual date of the loss or theft, you must:

13.       Guaranteed Service Period.  For the purposes of this Agreement, the “Guaranteed Service Period” means the period within which Absolute guarantees that it will either recover a Customer Computer or successfully launch (or in the case of Corporate Editions, successfully facilitate your launch of) a Data Delete Operation (of any type), failing which the Customer may become eligible to receive a payment from Absolute or an Absolute company as an agreed pre-estimate of liquidated damages relating to Absolute’s failure to meet the applicable performance guarantee.

The Guaranteed Service Period for all customers shall be the sixty (60) day period following the Post Theft Report Date.   If the Customer Computer has not contacted the Monitoring Center at least once within sixty (60) days after the Post Theft Report Date, the Guaranteed Service Period immediately thereafter ends; however, if your stolen Customer Computer thereafter contacts the Monitoring Center on a date that is no later than one hundred and eighty (180) days after the Post Theft Report Date (called the “Extended Service Guarantee Period”), your eligibility for the Service Guarantee shall be restored and a new Guaranteed Service Period shall commence on the earlier of the date of the initial Post Theft Report Date contact by the Customer Computer and the expiry date of the Extended Service Guarantee Period.  Any Guaranteed Service Period may be extended by an additional thirty (30) days if at any point during the period in question the Customer Computer has called into the Monitoring Center, and, in the reasonable opinion of Absolute, the case is active and is reasonably likely to result in success.  In no event shall a Guaranteed Service Period or an Extended Guaranteed Service Period exceed ninety (90) days.  The Guaranteed Service Period is deemed to be extended in the event the computer is Recovered and delivered to you before the date when payment of any Money Back Guarantee Amount or Service Guarantee Amount payout would have otherwise been due.

14.       Data Delete Feature.  If you have purchased a Service Term that includes a Data Delete feature, (a) for Corporate Editions, at any time during the Service Period you may remotely launch a Data Delete Operation by which you can delete data in one of three ways: (i) “Full Data Delete Including the Operating System” (or “OS”), by which all non-OS files and some OS files will be removed from the hard drive; (ii) “Full Data Delete Excluding the Operating System”, by which all files excluding the OS will be removed from the hard drive; and (iii) “File or Directory Specific Data Delete”, by which specific files, file-types and/or directories will be removed from the hard drive, and (b) for Consumer Editions, you may during the applicable Service Guarantee Period remotely launch a post-theft Data Delete Operation of the “Full Data Delete Excluding the Operating System” type.  Whether for Corporate Editions or Consumer Editions, you acknowledge that a Data Delete Operation, once launched, will commence the next time the targeted Customer Computer contacts the Monitoring Center and furthermore acknowledge and agree that (a) use of the Data Delete feature is intended to result in the permanent destruction of data residing on your Customer Computer and (b) methods (i) and (iii) may result in your Customer Computer becoming non-functional.  A successful launch of a Data Delete Operation (of any type) fulfills any applicable performance guarantee.

15.       Data Delete Activation.  For Corporate Editions, in order to activate the Data Delete feature, you acknowledge that you must:

16.       Data Delete Launch.  For Corporate Editions, you acknowledge that the process for launching a Data Delete Operation is self-initiated and that accordingly you are solely responsible for ensuring that the Data Delete Authorized Administrators whom you authorize to set up the Data Delete Operation are trustworthy.  In order to pass the applicable Customer Center authentication checks and launch a Data Delete Operation, you acknowledge that it is your sole responsibility to have your Data Delete Authorized Administrators: (a) ensure that the Customer Computer identified for a Data Delete Operation does not have the same ESN as any other computer within your organization;  (b) log into the Customer Center; (c) if using emailed authorization codes as your authentication method, launch the “Request Data Delete Authorization Code” screen and request an authorization code; (d) launch the “Request Data Delete” screen; (e) select and authorize the Customer Computer to be targeted; (f) choose the specific type of Data Delete Operation desired; (g) accept the on-screen confirmations; (h) enter Data Delete Authorized Administrator name; (i) re-type Customer Center password; and (j) if using RSA SecurID®, enter the RSA SecurID® Token value on the Data Delete request screen, or if using emailed authorization codes as your authentication method, enter the Data Delete Authorization Code on the “Request Authentication” screen.  For Consumer Editions, you acknowledge and agree that you do not have the ability to independently launch a Data Delete Operation and that you must successfully pass certain authentication procedures that Absolute has implemented in order to ensure that you are authorized to request the launch of a Data Delete Operation. Except as otherwise expressly agreed in this Agreement, Absolute does not guarantee that any Data Delete Operation will be successful, nor will Absolute necessarily be able to verify that the Data Delete Operation has been completed, though Absolute will attempt to compile and upload a log file.  Further, as Absolute will not be able to back up the your data or other software as part of the Data Deletion Operation, you acknowledge and accept that the data and software on the Customer Computer will be lost to you following the completion of the Data Delete Operation.  Except as otherwise expressly set forth in this Agreement, if you are using a Service to which a performance guarantee applies and you wish to launch a Data Delete Operation post-theft, the successful launch of a Data Delete Operation will end Absolute’s obligation to pay any money under such performance guarantee.

17.       Cancelling a Data Delete Launch.  For Corporate Editions, in order to cancel the launch of a Data Delete Operation, you acknowledge that (a) it is your sole responsibility to rescind the launch of a Data Delete Operation by cancelling the launch from the Customer Center, and (b) Absolute does not guarantee that the Service can successfully cancel a previously authorized Data Delete Operation in time to prevent the launch and completion of such Data Delete Operation.

18.       Data Delete Feature De-activation.  For Corporate Editions, in order to de-activate the Data Delete feature and remove access to the Data Delete feature, you acknowledge that you have sole responsibility to have your authorized signatory send an email to Absolute (HostingOperations@absolute.com and cc recoveryinfo@absolute.com) containing the following: (a) Email Subject Name: De-activation of Data Delete Feature Request; (b) Email Content: outline the reasons for de-activating the Data Delete feature.  On receipt of this email, Absolute will deactivate the Data Delete feature in your Customer Center account and will notify you when this has been completed.

19.       Data Delete Suspension.  For Corporate Editions, in the event of an emergency, you have sole responsibility to suspend the Data Delete feature in the Customer Center and thereby (a) disable any pending launches of Data Delete Operations; (ii) prevent new Data Delete Operations from being launched; and (iii) disable all previously available Data Delete feature options. You acknowledge that the Data Delete feature, once suspended, can only be restored with the consent of Absolute, at its sole discretion.

20.       Changing the Data Delete Authorized Administrators.  For Corporate Editions, to add or remove a Data Delete Authorized Administrator, you acknowledge that you have sole responsibility to have your authorized signatory send an email to Absolute (hostingoperations@absolute.com and cc recoveryinfo@absolute.com) containing the following: (a) Email Subject Name: “Change of Data Delete Authorized Administrators”; and (b) Email Content: outline the Data Delete Authorized Administrator(s) information to be changed.  On receipt of this email, Absolute will change the Data Delete Authorized Administrator(s) in your Customer Center account and will notify you when this has been completed.

21.       Performance Guarantees.  If you have purchased an edition of the Service that includes a performance guarantee (either a Money Back Guarantee or a Service Guarantee), then Absolute shall pay out the applicable guarantee amounts (either a Money Back Guarantee Amount or a Service Guarantee Amount) only if certain terms and conditions of the applicable performance guarantee are met.  YOU ACKNOWLEDGE AND AGREE THAT ANY SUCH PERFORMANCE GUARANTEE IS INTENDED AS PRE-DETERMINED, PRE-AGREED ESTIMATE OF AND LIMIT ON DAMAGES PAYABLE BY ABSOLUTE IN THE CASE OF BREACH BY ABSOLUTE OF THE SPECIFIC LIMITED WARRANTIES ON THE PERFORMANCE OF CERTAIN FEATURES OF THE SERVICE AS DESCRIBED HEREIN, THAT THE LIMITATION OF LIABILITY SET BY ANY SUCH PERFORMANCE GUARANTEE WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN THE PARTIES AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE FOR THE SERVICE, THAT ANY SUCH PERFORMANCE GUARANTEE IS NOT AN INSURANCE PRODUCT, AND THAT ABSOLUTE IS IN NO WAY INSURING YOUR CUSTOMER COMPUTER AGAINST LOSS OR THEFT.  OTHER THAN through applicable performance guarantees, and as otherwise SET FORTH in this agreement, Absolute does not guarantee, and makes no representations or warranties concerning, its performance of the service with respect to any CUSTOMER Computer. 

22.       Performance Guarantee Conditions.  In order to qualify to receive any payment under a performance guarantee (whether the Money Back Guarantee or the Service Guarantee), in addition to meeting the conditions set forth in this Agreement that relate specifically to the type of performance guarantee in question, you must also fully meet the following conditions:

23.       Money Back Guarantee.  If you have purchased an edition of the Service to which a Money Back Guarantee applies, if the general performance guarantee terms and conditions set forth in Section 22 are fully met, and if Absolute is unable to Recover the stolen Customer Computer in question within the applicable Guaranteed Service Period, then Absolute will pay to you the applicable Money Back Guarantee Amount as further described in Section 25 (a) of this Agreement within thirty (30) days from receipt of the duly completed Money Back Guarantee Submission Form, submitted in accordance with the above terms. This Money-Back Guarantee is void where prohibited by law.

24.       Service Guarantee.  If you have purchased an edition of the Service to which  a Service Guarantee applies and such edition includes either or both of the Theft Recovery and Data Delete features; if the general performance guarantee terms and conditions set forth in Section 22 are fully met; and if the Customer Computer has neither been flagged as “Recovered” at the end of the Guaranteed Service Period, nor been the subject of a successful launch of a Data Delete Operation, then Absolute or an Absolute company will pay to you the applicable Service Guarantee Amount as further described in Section 25 (b) of this Agreement within thirty (30) days from receipt of the duly completed Service Guarantee Submission Form, submitted in accordance with the above terms.  Even if the Guaranteed Service Period has expired or a Service Guarantee Amount has been paid by Absolute, for a maximum of one (1) year Absolute shall on a commercially reasonable efforts basis continue to monitor and attempt recovery of, or facilitate a successful Data Delete Operation, on the lost or stolen computer in question. This Service Guarantee will become void in the event you execute a service or feature on your Customer Computer that restricts or disables the ability for your Customer Computer to contact the Monitoring CenterThis SERVICE Guarantee is void where prohibited by law.

25.       Guarantee Amounts: For purposes of this Section 25, the term “Bundled” shall mean a version of an edition of the Service that includes either a Money Back Guarantee or a Service Guarantee where such edition is not sold in a standalone fashion but is instead included with other software or services offerings, and in which the applicable invoice does not include a separate price for the Service. 

The dollar amounts listed above are paid out in United States dollars if your region or country of residence is the United States, in Canadian dollars if your region or country of residence is Canada, and Australian dollars if your region or country of residence is Australia.  Absolute may in its sole discretion pay an equivalent amount in the currency of its choosing with respect to countries not listed above.

26.       Customer and Technical Support.  During the Service Term, Absolute or its authorized service provider will, using commercially reasonable efforts, provide customer and technical support to you.  Customer and technical support is available to you exclusively in the English language unless otherwise expressly indicated on our website, via Absolute’s support website at http://www.absolute.com/support.  Absolute reserves the right to modify the specific content of its customer and technical support at any time without notice.

27.       Professional Services.  In addition to the Service, Absolute may agree to provide you Professional Services, either as fixed packages of Professional Services available for purchase via an authorized Absolute reseller, including the following,

- Absolute® Custom Project Services Package         
- Absolute Kick Start Services Package       
- Absolute Kick Start Lite Services Package 
- Absolute Asset Management Services Package    
- Absolute Asset Discovery Services Package

or as an Absolute Custom Project Services Package more particularly described in a signed Statement of Work between you and Absolute.  For any Professional Services performed pursuant to a signed Statement of Work, you will pay to Absolute any related Professional Services fees within 30 days after the date of our invoice or in accordance with any other payment terms as they may be agreed to by the parties in writing either in a Statement of Work or otherwise.  You will also reimburse us for reasonable expenses incurred in performing the Professional Services, including, but not limited to, travel and accommodation costs, long distance telecommunications costs, courier fees, reproduction costs, and other reasonable out-of-pocket costs.  At your request, we will give you copies of receipts or other customary expense documentation for expenses incurred.  Any overdue payment will bear interest at a rate of one and one-half percent (1-1/2%) for each month or portion thereof that the payment is overdue, or the highest interest rate permitted by applicable law, whichever is lower.  Fees do not include any taxes, and you agree to pay any sales, use, value added or other taxes or import duties (other than our corporate income taxes) based on or due as a result of any amounts paid to us under this Agreement.  All fees shall be paid in the currency of the country or region in which the Professional Services are being performed.  We will provide all supplies, facilities, materials and other things which we require to perform the Professional Services, except for those things which you are required to supply as set out in the Statement of Work.  No changes will be made to the Professional Services, the Deliverables or the Statement of Work except by a written amendment signed by you and us.  Any changes to the Professional Services, the Deliverables or the Statement of Work may delay completion of the Professional Services and/or increase the related Fees.  You will also provide us with any access to your premises, facilities and systems which we require to perform the Professional Services.

28.       Professional Services - Acceptance and Intellectual Property. Unless otherwise specified in a Statement of Work, the following shall apply to any Professional Services engagement:

29.       Professional Services Disclaimer. ALTHOUGH OUR PROFESSIONAL SERVICES MAY INCLUDE INSTALLATION AND CONFIGURATION OF OUR CLIENT SOFTWARE ON YOUR CUSTOMER COMPUTERS, YOU AGREE THAT YOU ARE SOLELY AND EXCLUSIVELY RESPONSIBLE FOR THE MAINTENANCE, CONTROL, OPERATION AND SECURITY OF YOUR NETWORK SYSTEMS, INCLUDING THE RESPONSIBILITY OF MONITORING AND MAINTAINING THE CLIENT SOFTWARE YOUR CUSTOMER COMPUTERS TO ENSURE THAT IT CONTINUES TO FUNCTION PROPERLY.  YOU ALSO ACKNOWLEDGE THAT THE INTERNET IS NOT IN ITSELF A SECURE MEDIUM, MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION AND MAY BE SUBJECT TO INADVERTENT OR DELIBERATE BREACHES OF YOUR SECURITY. 

30.       Ownership and Intellectual Property Rights. Absolute or its licensors may have patents or pending patent applications, trademarks, copyrights, trade secret rights or other intellectual property rights covering the Service and the Absolute Technology and all materials delivered to you or accessed by you in using the Service, including but not limited to any Content, Absolute Technology, user manuals and other documentation. You acknowledge that the Service, the Content, and the Absolute Technology are the property of Absolute or its licensors and that the only rights you have with respect to them and related materials is the right to use them in accordance with the terms of this Agreement. No title to or ownership of the Service, the  Content, the Absolute Technology or trade marks or other intellectual property used under this Agreement is transferred to you. Additionally, you confirm that any copies of the Content and Absolute Technology you make will contain the same proprietary notices, which appear on and in the Content and Absolute Technology, and you agree that you will not copy any printed materials accompanying the Content or Absolute Technology that is software.  Notwithstanding any provision of the Agreement to the contrary, Absolute, or the licensor through which Absolute obtained the rights to offer the Service and distribute the Content or the Absolute Technology, owns and retains all title to, ownership of, and all intellectual property rights in, the Service, the Content and the Absolute Technology.

31.       Confidential Information. Each party agrees to protect the Confidential Information of the other party (as defined below in this Section 31) in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind but in no case less than reasonable care. Access to Confidential Information shall be restricted to employees and consultants of either party who have a need to know such information. If the parties have executed a separate confidentiality agreement prior to the date of this Agreement, the provisions of such separate confidentiality agreement shall govern to the extent of any inconsistency.  In this Agreement, “Confidential Information” means any information which the receiving party knows or has reason to know is the confidential or proprietary information of the disclosing party including, without limitation, the following information: technical and business information relating to inventions or products, research and development information, production manufacturing and engineering processes, costs, profit or margin information, employee skills and salaries, finances, customers, marketing, and production and future business plans.

32.       Absolute Limited Warranty. Except with respect to the use by you of the Service, the Content and/or the Absolute Technology on an evaluation basis, in which case Absolute disclaims all representations and warranties whatsoever, whether express or implied, Absolute represents and warrants to you only that (a) Absolute owns or otherwise has the right to license the Service, the Content and the Absolute Technology and the related documentation to you under this Agreement; and (b) during the Service Term, the Absolute Technology will function substantially in accordance with the applicable documentation.  While Absolute has made reasonable efforts to ensure that the Service, the Content and the Absolute Technology all work with certain operating systems and application software, Absolute cannot and does not check every possible combination of equipment or software available or that is subsequently installed or used by you. Furthermore, if you have purchased a Service that includes Theft Recovery features, subject to any Service Guarantee specifically offered with the Service by Absolute, its affiliates or authorized service providers, recovery of every computer which uses the Absolute Technology cannot be guaranteed. In particular, as Absolute or its authorized service providers will only coordinate recoveries in a Theft Recovery Territory, no guarantee or warranty is provided with respect to the operation of the Absolute Technology, or the ability to recover a computer using the Absolute Technology, if the computer is located or moved outside of the Recovery Territories. You bear the entire risk as to the quality and performance of the Absolute Technology and the related Service, other than as specifically set forth in the Service Guarantee.  EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 32 OR IF AND TO THE EXTENT AS EXPRESSLY PROVIDED BY AN APPLICABLE PERFORMANCE GUARANTEE DESCRIBED IN THIS AGREEMENT, ABSOLUTE AND ITS AUTHORIZED SERVICE PROVIDERS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE, THE CONTENT AND THE ABSOLUTE TECHNOLOGY, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WITH RESPECT TO THE SERVICE’S THEFT RECOVERY AND DATA DELETE FEATURES, Absolute does not PROVIDE, AND EXPRESSLY DISCLAIMS, ANY warranties WITH RESPECT TO ITS ABILITY TO RECOVER, OR to REMOTELY DELETE data FROM, YOUR STOLEN CUSTOMER COMPUTER.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH A CASE, ANY IMPLIED WARRANTIES RELATING TO THE SOFTWARE ARE LIMITED TO THIRTY (30) DAYS. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.

33.       Limited Warranty by You.  You acknowledge that in order to use the certain editions of the Service, you must independently provide at your own cost and expense, certain third party hardware, operating system and software components (collectively, the “System”) including without limitation the required third party licensed database software licensing for the Computrace Enterprise™ edition of the Service.  Details of such minimum System requirements may be found in the related documentation, either provided to you by Absolute or available Online.  Absolute does not have any obligation to support any pieces of the System. You acknowledge that use of the Absolute Technology may require certain licenses for System software in order for the Absolute Technology to be functional.  Accordingly, you hereby confirm, represent and warrant to Absolute that you either own or are licensed to use the system and hold sufficient System Licenses necessary to run the Absolute Technology, proof or copies of which you will provide to Absolute upon its request acting reasonably.  In the event that you are in breach of this representation and warranty, you agree to indemnify Absolute for any damages awarded against Absolute (including, without limitation, reasonable costs and legal fees thereby incurred by Absolute) arising out of or relating to any unauthorized use of the System in connection with this Agreement or your use of the Absolute Technology.

34.       Exclusive Remedies.  If Absolute is in material breach of any of the representations and warranties in Section 32, your exclusive remedies and Absolute’s sole obligations to you shall be as follows:

35.       Indemnification of Absolute.  You hereby agree to indemnify and save harmless Absolute, all its subsidiaries, affiliates, directors, officers, employees, consultants and agents (together, the “Absolute Indemnified Parties") from and against all losses, damages, liabilities, debts, demands, claims, actions, causes of action, costs, charges and expenses, including legal fees and any amount paid to settle any action or to satisfy a judgment, in any way incurred by an Absolute Indemnified Party in respect of any actual or threatened civil, criminal or administrative action or proceedings to which the Absolute Indemnified Party is made a party by reason of or in connection with or arising out of the launch of a Data Delete Operation authorized or carried out by you. The indemnity provided hereby also includes, without limiting the generality of the foregoing, all payments which may be made by an Absolute Indemnified Party under which indemnity may be sought from you regardless of whether the Absolute Indemnified Party has any defense in respect of the undertaking of the Data Delete Operation. 

36.       Indemnification of You.  Subject to Section 37, and provided that you are using the then current release or the immediately prior release of the Service, the Content and the Absolute Technology available from Absolute, Absolute hereby agrees to indemnify and save you harmless, together with your subsidiaries, affiliates, directors, officers, employees, consultants and agents (together, the “Customer Indemnified Parties") from and against all losses, damages, liabilities, debts, demands, claims, actions, causes of action, costs, charges and expenses, including legal fees and any amount paid to settle any action or to satisfy a judgment, in any way incurred by an Indemnified Party in respect of any actual or threatened civil, criminal or administrative action or proceedings to which the Indemnified Party is made a party by reason of or in connection with or arising out of any allegation that your use of the Absolute Technology as permitted by this Agreement infringes any United States or Canadian patent, copyright or trade secret.  In the event of legal action or if Absolute believes that the use of Absolute Technology is likely to be subject to legal action, Absolute may, at its option and expense (i) obtain a license permitting you to continue to use the Service, the Content and the Absolute Technology; (ii) replace or modify the Service, the Content and the Absolute Technology so that it is no longer infringing; or (iii) if Absolute does not consider (i) or (ii) to be commercially feasible, terminate this Agreement with no further liability to you except for a prorated refund of the Service fees paid by you under this Agreement, representing the remainder of the unused Service Term.

37.       Limitations.  Notwithstanding Section 36, Absolute shall not be required to defend or indemnify you in respect of any legal action if, and to the extent that, the legal action would not have arisen but for: (a) your combination of the Absolute Technology with software or products not supplied by Absolute; (b) any repair or modification to the Absolute Technology carried out by you or any third party; (c) any breach by you of your obligations under this Agreement; or (d) any refusal by you to install and use a non-infringing version of the Service, the Content and the Absolute Technology offered by Absolute under Sections 34 or 36.

38.       Notice of Legal Action.  Either an Absolute Indemnified Party or a Customer Indemnified Party (an “Indemnified Party”), as the case may be, must (a) give prompt written notice of any legal action to the indemnifying party, not more than thirty (30) days after his or its first knowledge of that legal action, whether actually initiated or threatened; (b) give to the indemnifying party the sole control of the defense of any legal action and, (c) at indemnified party’s cost, give the indemnifying party any assistance that the indemnifying party may reasonably request to defend or settle any legal action.  An Indemnified Party shall not settle or compromise any legal action without the express prior written consent of the indemnifying.  An Indemnified Party’s material failure to comply with this Section 38 shall relieve the indemnifying party of its obligation to defend and indemnify the Indemnified Party.

39.       Disclaimers and Limitations of Liability.  NEITHER ABSOLUTE NOR ITS AFFILIATES, AUTHORIZED SERVICE PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, VENDORS, SUPPLIERS OR DISTRIBUTORS SHALL BE LIABLE UNDER THIS AGREEMENT TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF DATA OR COMPUTER TIME, LOSS OF BUSINESS PROFITS OR BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR ANY OTHER PECUNIARY LOSS) OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF ABSOLUTE HAS BEEN INFORMED OF THE POSSIBILITY THEREOF.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH A CASE, ANY IMPLIED WARRANTIES RELATING TO THE SOFTWARE ARE LIMITED TO AMOUNT OF SERVICE FEES PAID BY YOU OVER THE PRECEDING TWELVE MONTHS (IN THE CASE OF ANY EVALUATION, EVEN IF PAID, NOTHING SHALL BE PAYABLE).  THE LIABILITY OF ABSOLUTE, ITS AFFILIATES, AUTHORIZED SERVICE PROVIDERS, SUPPLIERS AND LICENSORS FOR ANY LOSS, COST, CLAIM OR DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (EXCLUDING ABSOLUTE’S LIABILITY TO YOU UNDER SECTION 31) SHALL NOT EXCEED THE AMOUNT OF THE SERVICE FEES PAID BY YOU TO ABSOLUTE FOR THE PRECEDING TWELVE (12) MONTH PERIOD (IN THE CASE OF ANY EVALUATION, EVEN IF PAID, NOTHING SHALL BE PAYABLE). Without limiting the generality of the foregoing, Absolute expressly disclaims any liability for any damage, whether direct or indirect, caused by your launch of a Data Delete Operation. By authorizing the Data Delete Operation, you are hereby releasing Absolute, all its subsidiaries, affiliates, directors, officers, employees, consultants and agents, from any liability associated with the Data Delete Operation (including any unsuccessful cancellation of the launch of a Data Delete Operation).

40.       Severability. If any term or provision of this Agreement shall be found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the other terms or provisions hereof or the whole of this Agreement, but such terms or provisions shall be deemed modified to the extent necessary in the court’s opinion to render such terms or provisions enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties herein set forth.

41.       Waiver. Either party’s failure to exercise a right available to it by reason of the other party’s breach shall be taken as an isolated instance and shall not be deemed to be a permanent waiver of such right.

42.       Force Majeure. Absolute shall not be liable by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, riots, insurrections, fires, floods, storms, explosions, earthquakes, acts of God, war, governmental action, or any similar cause which is beyond its reasonable control.

43.       Notice. Any notice, request, authorization, direction, form or other communication to you from Absolute or from you to Absolute under this Agreement shall be given in writing and be delivered to the intended recipient by e-mail, in your case, at the e-mail address you specified when you installed and registered for the Service and, in Absolute’s case, the contact coordinates expressly set out in the relevant Section of this Agreement or Online via the Customer Center, if not so set out, to the following contact coordinates:

44.       Headings. Headings appearing in this Agreement are for convenience only and shall not be deemed to explain, limit or amplify the provisions hereof.

45.       Governing Law. This Agreement will be governed and construed in accordance with the laws of the applicable country or region as set forth on page 1 of this Agreement and the courts of such applicable countries or regions shall have exclusive jurisdiction of any legal proceeding regarding this Agreement, and the parties expressly submit to the jurisdiction of said courts.

46.       Export Control. You agree that you will not knowingly export or re-export, directly or indirectly, any product, including software, received from Absolute under this Agreement or any direct product of such product to any destination to which such export or re-export is restricted or prohibited by United States or other applicable law, without obtaining prior written authorization from the competent government authorities as required by those laws.  The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.  Absolute and its licensors make no representation that the Service is appropriate or available for use in any specific country or region. If you use the Service from outside the United States of America, Canada and/or the European Union, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States, Canadian or European Union (including European Union Member States) law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for military or quasi-military projects, unless specifically authorized by the United States, Canadian or Australian government or the appropriate European body for such purposes.

47.       Currency. In this Agreement, except as otherwise expressly so indicated, all references to currency mean currency of the United States of America.

48.       Entire Agreement. This Agreement and its appendices set forth the entire understanding between the parties hereto and supersede all prior agreements, arrangements, and communications, whether oral or written, with respect to the subject matter hereof. This Agreement may not be modified or amended except pursuant to Section 1.

49.       Assignment; Change in Control.  This Agreement may not be assigned by you without the prior written approval of Absolute but may be assigned without your consent by Absolute to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of Absolute directly or indirectly owning or controlling 50% or more of you shall entitle Absolute to terminate this Agreement for cause immediately upon written notice.

50.       Survival. Without limiting the applicability of other terms and conditions of this Agreement, the terms of Section 10 (Post Termination), Sections 21 to 25 relating to performance guarantees, Section 29 (Professional Services Disclaimer), Section 30 (Ownership and Intellectual Property Rights), Section 31 (Confidential Information), Section 32 (Absolute Limited Warranty), Section 33 (Limited Warranty by You), Section 34 (Exclusive Remedies), Section 35 (Indemnification of Absolute), Section 36 (Indemnification of You), Section 37 (Limitations), Section 38 (Notice of Legal Action), Section 39 (Disclaimers and Limitations of Liability), Section 45 (Governing Law) and this Section 50 (Survival), together with all additional terms and conditions necessary for the correct interpretation of the foregoing, shall survive the expiration or termination of this Agreement for any reason.

51.       Definitions.  The following terms shall have the corresponding meanings when used in this Agreement:

a) “Absolute Technology” means all of Absolute's proprietary technology (including without limitation the Client Software, the Content and other online, offline or client software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Absolute in the course of providing the Service.

b) “Affiliate” means, any present or future entity which, either directly or indirectly, or through one or more intermediaries, controls, is controlled by or is under common control of or with a party to this Agreement.  For the purposes of this Agreement, an entity is controlled by a party if: (a) securities of the entity to which are attached more than fifty per cent of the votes that may be cast to elect directors of the entity are held, other than by way of a security interest only, by or for the benefit of the party and the votes attached to those securities are sufficient, if exercised, to elect a majority of the directors of the entity; or (b) an entity has the ability through contract or otherwise to direct the affairs of the second entity.

c) “Client Software” means any offline or client software components of the Absolute Technology, including without limitation the Computrace Agent™.

d) “Computrace Agent™” is a type of Client Software installed in the Customer Computer that communicates with Absolute’s Monitoring Center to transmit data required for Absolute to perform the Service via the Customer Computer’s Internet connection or direct dial modem.

e) “Computrace Best Practices” refers to the methods documented by Absolute in its “Computrace Best Practices” document (available to you Online) that you must follow in order to properly install the Client Software on the Customer Computer in order to ensure that the Computrace Agent™ remains installed on the Customer Computer; and to ensure that the Customer Computer is automatically communicating with the Monitoring Center on a regular basis. Please review the full document by logging onto your customer account Online.

f) "Content" means the audio and visual information, documents, software, products and services contained or made available to you by Absolute in the course of using the Service;

g) “CRI” means Computer Recovery Inc., a subsidiary of Absolute Software Corporation that performs Service related to the Theft Recovery feature within the United States.

h) “Customer Center” means with respect to Corporate Editions, Absolute’s Computrace Customer Center, a secure socket layer, password protected website available Online if you have purchased a Service or with respect to Consumer Editions, the applicable online service management website.

i) “Customer Computer” means the unique and specific client computer, including its unique PSN, for which you have purchased a Service Term and have both: (i) installed the Client Software on the computer and (ii) ensured the registration of the computer and PSN with Absolute.  The Service can only be used with a Customer Computer that is a computing or internet-enabled device expressly supported by Absolute.

j) “Data Delete Operation” means an operation launched by you by which you remotely permanently delete all or some of the data, software, and possibly the operating system from a Customer Computer.

k) “Data Delete Authorized Administrator” means, for Corporate Editions, a person whom you have authorized to launch a Data Delete Operation on a Customer Computer and who has (i) been previously identified as such in a Data Delete Pre-authorization Form, (ii) has the RSA SecurID key-chain token required to launch a Data Delete Operation, and (iii) who you have given administrator level login privileges to the Customer Center.

l) “Data Delete Pre-Authorization Form” means, for Corporate Editions, the form provided by Absolute that specifies the individuals (called “Data Delete Authorized Administrators”) who are authorized to launch a Data Delete Operation and which has been signed off by two authorized signatories and is available to you either by (a) logging into your customer account Online at www.absolute.com or (b) having it mailed to you after you request via email at forms@absolute.com or via telephone at 1-604-608-4930.

m) “Deliverables” means the deliverables to be delivered in accordance with a Professional Services Statement of Work or in accordance with a fixed, standard package of Professional Services.

n) “Education Customer” means a customer that is an officially accredited learning institution offering courses either at the primary, secondary, or post-secondary level.

o) “Electronic Serial Number” or “ESN” means the number electronically assigned to a Customer Computer.

p) “Enterprise Server” means the Absolute Technology provided by Absolute to you pursuant to this Agreement in object code in any form or media, and all Updates and Upgrades (if agreed to be provided to you), required to allow you to run an Absolute monitoring center internally as part of the Computrace® Enterprise™ edition of the Service.

q) “Extended Guaranteed Service Period” has the meaning given in Section 13.

r) “Guaranteed Service Period” means the length of the period within which Absolute may recover a Customer Computer before the Customer can be eligible to receive a payment under a Performance Guarantee (the “Guaranteed Serviced Period”) once the Theft Recovery feature has been activated for that Customer Computer.

s) “Money Back Guarantee” means the money back guarantee described in Section 23 of this Agreement.

t) “Money Back Guarantee Amount” means the dollar amount payable by Absolute to you if you are eligible for payment under a Money Back Guarantee, as more particularly described in Section 25 of this Agreement.

u) “Money Back Guarantee Submission Form” means the form provided by Absolute for you to apply for a Money Back Guarantee Amount regarding a stolen computer.  This form is also available Online through your customer account. 

v) “Monitoring Center” means, in the case of all editions of the Service that are not the Computrace® Enterprise™ edition of the Service, the monitoring center maintained and operated by Absolute to communicate with the Client Software; in the case of the Computrace® Enterprise™ edition of the Service, the Monitoring Center is maintained and operated by you internally and is called the Enterprise Server.

w) “Online” means the Absolute websites that service the customer at http://www.absolute.com and www.lojackforlaptops.com.

x) “Order” means the initial or any subsequent subscription for the Service submitted Online or in written form, specifying, among other things, the number of subscriptions and their Service Term, the specific edition of the Service contracted for, the applicable fees, pricing and payment details, and each such Order is incorporated into and becomes a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order, the terms of this Agreement shall prevail).

y) “Physical Serial Number” (or “PSN”) means the unique physical serial number, which identifies the Customer Computer installed with the Client Software.

z) “Post Theft Report Date” has the meaning given to it in Section 12.

aa) “Privacy and Security Policy” means Absolute’s privacy and security policy or policies, available Online, regarding the confidentiality and security of your personal information.

bb) “Professional Services” means the services we agree to provide to you in accordance with Sections 27 to 29 and includes without limitation training services.

cc) “Recover” or “Recovery” means the Customer Computer has been located and returned to you, or is in the process of being delivered to you, or is either in possession of, or in the process of being collected by or tracked by, law enforcement.

dd) “Service” means any of the specific editions of Absolute's online computer security and tracking service, or other services identified during the ordering process, developed, operated, and maintained by Absolute, accessible via http://www.absolute.com,  http://www.lojackforlaptops.com or another designated web site or IP address, or ancillary online or offline products and services provided to you by Absolute (excluding Professional Services), to which you are being granted access under this Agreement.

ee) “Service Guarantee” means the service guarantee described in Section 24 set forth in this Agreement.

ff) “Service Guarantee Amount” means the dollar amount payable by Absolute to you if you are eligible for payment under the Service Guarantee, as more particularly described in Section 25 of this Agreement.

gg) “Service Guarantee Submission Form” means the form provided to you by Absolute that is required for you to apply for a Service Guarantee Amount regarding a stolen Customer Computer.  This form is available Online through your customer account.

hh) “Service Term” means the period of time beginning on the date you purchased the Service and ending upon completion of such period, as indicated in the applicable Order.  If you upgrade from one edition of the Service to another, the Service Term applicable to the Service immediately before the upgrade shall continue unchanged.   If you renew the Service, the renewal Service Term shall be the period of time beginning on the date you renewed the Service and ending upon completion of such period, as indicated in the applicable Order.

ii) “Statement of Work” means any written document dated and signed by you and Absolute that specifies the Professional Services (including the Deliverables) to be delivered by Absolute to you.

jj) “System” has the meaning given in Section 33.

kk) “Theft Recovery” means Absolute’s standard computer recovery services feature, as revised from time to time by Absolute.

ll) “Theft Recovery Territory” means the United States of America, Canada, Australia and the United Kingdom.

mm) “Theft Report” means the form provided by Absolute and available to you either by (a) logging into your applicable customer account Online at either www.absolute.com or www.lojackforlaptops.com (b) mailed to you after you request via email at forms@absolute.com or via telephone at 1-604-608-4930.

nn) “Update” means a release of the Absolute Technology that includes a feature change, minor increased functionality or minor improvements (including bug fixes) to the Absolute Technology.

oo) “Upgrade” means a release of the Absolute Technology that includes an additional service feature or significant improvements being added to the Absolute Technology. Typically Upgrades shall be those designated by Absolute as a change in the version number, being the number to the left of the decimal point in the Absolute Technology version number.