TREND MICRO PRE-RELEASE SOFTWARE TEST OR EVALUATION AGREEMENT JULY 2011

Transcription

1 TREND MICRO PRE-RELEASE SOFTWARE TEST OR EVALUATION AGREEMENT JULY 2011 IMPORTANT: THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH YOU, AS LICENSEE, AGREE TO DOWNLOAD, INSTALL, USE AND EVALUATE THIS PRE-RELEASE TREND MICRO SOFTWARE ("SOFTWARE"). BY SELECTING THE I AGREE BOX OR OTHER SIMILAR BOX PRIOR TO DOWNLOAD AND/OR BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE, YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE EVALUATING THE SOFTWARE ON BEHALF OF YOUR COMPANY OR ORGANIZATION (COLLECTIVELY USER ), BY SELECTING THE I AGREE BOX OR OTHER SIMILAR BOX PRIOR TO DOWNLOAD AND/OR BY DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE AND/OR YOU REPRESENT THAT (A) YOU ARE DULY AUTHORIZED TO REPRESENT THE USER AND ACCEPT THIS AGREEMENT ON ITS BEHALF AND (B) YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT ON USER S BEHALF. AN AGREEMENT IS THEN FORMED. IF YOU OR THE USER (COLLECTIVELY "YOU") DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT ACCEPT THIS OFFER TO TEST OR EVALUATE THE SOFTWARE, DO NOT SELECT THE I AGREE BOX OR OTHER SIMILAR BOX AND/OR DO NOT DOWNLOAD, EVALUATE AND/OR USE THE SOFTWARE. IF, FOR TECHNICAL REASONS, YOU ARE PROMPTED TO ACCEPT A LICENSE AGREEMENT DURING THE PROCESS OF DOWNLOADING OR INSTALLING THE SOFTWARE, BY SELECTING AN "I AGREE" BOX OR OTHER SIMILAR BOX, YOU SHALL BE DEEMED MERELY TO CONFIRM THE TERMS AND CONDITIONS OF THIS AGREEMENT. SUBJECT TO THE FOREGOING, THIS AGREEMENT SUPERCEDES ANY PRIOR AND CONTEMPORANEOUS AGREEMENT, REPRESENTATION OR UNDERSTANDING REGARDING THE SUBJECT MATTER OF THIS AGREEMENT. 1. LIMITED LICENSE. Subject to the terms of this Agreement, Trend Micro authorizes You to use the Software in a non-production environment for up to thirty (30) days or such other period authorized by Trend Micro and by no more than the number of users or computers authorized by Trend Micro to use or receive the services or benefits of the Software ("Evaluation Period") from download for the sole purpose of evaluating and testing the Software and providing Feedback (as defined below) to Trend Micro. You may make one copy of the Software and a reasonable number of copies of any documentation for back-up or internal use only, provided that each such copy contains all copyright and other proprietary notices as in the original. This right terminates automatically upon expiration of the Evaluation Period or if You fail to comply with any term of this Agreement. Trend Micro may terminate this Agreement at any time, with or without

2 cause, upon five (5) days prior written notice. Upon termination, You agree to stop using the Software and to destroy all copies of the Software and any related documentation provided. If so requested by Trend Micro, You shall promptly certify to Trend Micro the destruction of all copies of the Software and any related documentation provided. Sections 2-15 survive termination of the Agreement. 2. PROPRIETARY RIGHTS AND RESTRICTIONS. The Software is protected by intellectual property laws and international treaty provisions. You do not acquire any rights to the Software except as expressly set forth herein. You will not attempt to transfer, rent, auction, sublicense, loan, modify, create derivative works of, merge, translate, reverse compile, de-compile, or disassemble the Software, in whole or in part, or authorize others to do any of the foregoing. You may not use without Trend Micro s prior written consent the Software and related documentation (i) if You are a direct competitor of Trend Micro or (ii) for purposes of comparison with or benchmarking against third party products or services (including publishing performance information or comparisons), except and only to the extent that such activity is expressly permitted by applicable local law notwithstanding this limitation. 3. PRE-RELEASE ACKNOWLEDGEMENT. You acknowledge that the Software has not been released for production use, and as such, the Software may have errors or other operating deficiencies and may not operate in substantial accordance with the applicable documentation. Trend Micro disclaims any obligation to correct any errors in the Software or to provide technical support for the Software. You also acknowledge that the Software is subject to change and modification, including, without limitation, changes and modifications with respect to performance, functionality and appearance at any time at the sole discretion of each Trend Micro. You understand and agree that the Software, as prerelease software, may not be used in production. 4. REGISTRATION. In order to download the Software for evaluation or test purposes, You may be required register with Trend Micro and provide Trend Micro with certain limited personal data. In such case, by accepting this Agreement You agree to register Your Software as a condition of Your use of the Software under this Agreement, and consent to having certain limited personal data stored outside the country where You are located and/or in jurisdictions where privacy laws may not be as stringent as those in Your own country. 5. INFORMATION COLLECTION. In addition to any required product registration information, Trend Micro must process and store certain information about Your network and equipment. To improve its products, Trend Micro may also upload information periodically from installed Software about product usage, detected malware or potentially unwanted files and use service traffic to improve its data bases and heuristics. Trend Micro products are not designed to capture or retain any personal or private information. You agree that Trend Micro may (i) use uploaded data from installed Software to improve products and services; (ii) share data that has been identified as malicious or unwanted content with worldwide affiliates and security partners; and (iii) use and disclose uploaded data for analysis or reporting purposes only if any such use, sharing or disclosure does not identify You or include any information that can be used to identify any individual person. Trend Micro reserves the title, ownership and all rights and interests to any intellectual property or work product resulting from its use and analysis of such information.

3 6. SERVICE ACKNOWLEDGMENTS/CONSUMER AND DATA PROTECTION. Software operates by forwarding certain data ( Forwarded Data ) to Trend Micro owned or controlled servers for security scanning. As a condition of using the Software and by accepting this Agreement You represent and warrant that: (i) You are legally permitted and authorized to access, and to provide Trend Micro with access to, the Forwarded Data and agree to provide Trend Micro with evidence of such authorization upon request; (ii) You authorize Trend Micro to act as Your data processing agent for such Forwarded Data and at Your discretion; (iii) You undertake to inform the source of the Forwarded Data, to the extent required by local law, of the scope and purpose of the service components (which may include monitoring and reporting) of the Software, which may entail the transfer of Forwarded Data to servers outside Your jurisdiction (including outside the European Union); (iv) You agree that You are responsible for deciding if and how You use the Software; (v) You represent that You will otherwise use the Services only in a legal manner. You agree Trend Micro and You to be bound by the «standard contractual clauses for the transfer of personal data to processors established in third countries», issued by the European Commission in a decision dated December 27th 2001 and available at which is incorporated hereto by reference; and (vi) You represent that You will otherwise use the Software only in a legal manner and in compliance with all applicable laws. In the event of any breach of the representations and warranties in this Section, Trend Micro may with prior notice and without prejudice to its other rights, suspend the performance of the Software and related services until You can show to Trend Micro's satisfaction that any such breach has been cured. The use of the Software may be subject to data protection laws or regulations in certain jurisdictions. You are responsible for determining how and if You need to comply with those laws or regulations. 7. CONFIDENTIALITY. You acknowledge that the Software and any serial number or activation code constitute or embody valuable trade secrets and confidential information of Trend Micro. You agree not to make available or disclose the Software or Your Feedback (as defined below) or other evaluation results to any third party, except (if You represent a Company) to employees or independent consultants who are bound by industry standard non-disclosure obligations. You agree to secure and protect the Software and any serial number or activation code in a manner consistent with the maintenance of Trend Micro's rights therein, and agree to take appropriate action to ensure that any of Your employees or agents permitted access to the Software will act in accordance with Your obligations under this Agreement. 8. YOUR RESPONSIBILITIES IF YOU ARE USING TREND MICRO PARENTAL MONITORING PRODUCTS. It is Your responsibility to notify all individuals using the computer on which the Software is installed of the capabilities and functionality of the Software, including but not limited to the following: (a) use of the Internet and or other such communications are being recorded and reported, and (b) in addition to the information collected as described in Sections 5 and 6 above, other personal data is automatically collected during the course of the operation of the Software and that such data may be transferred and processed outside the European Union, which may not ensure an adequate level of protection. In the event of any breach of the representations and warranties in this Section, Trend Micro may with prior notice and without prejudice to its other rights, suspend the performance of the Software until You

4 can show to Trend Micro's satisfaction that any such breach has been cured. 9. NO PUBLICITY RIGHTS. Neither Trend Micro nor You shall use the other's name or make any references to the other, directly or indirectly, in any papers, articles, advertisement, news releases, statements or other communications, or otherwise disclose the fact, or results of Your evaluation of the Software without the prior written consent of the other party. 10. EVALUATION RESULTS. Based on Your use of the Software, You agree to provide Trend Micro with reasonable feedback, on a periodic basis, about the Software, including a list of discovered errors, deficiencies or other problems, the results of any performance tests, answers to questions or surveys (including but not limited to questions relating to usability and functionality), and/or recommendations on how to modify the Software and related documentation to better suit Your needs (collectively "Feedback"). Trend Micro shall be free to use any and all such Feedback for any purpose. 11. DISCLAIMER. GIVEN THE DEVELOPMENTAL AND PRE-RELEASE NATURE OF THE SOFTWARE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, TREND MICRO DOES NOT MAKE ANY WARRANTIES WHATSOEVER AS TO THE OPERATION OR PERFORMANCE OF THE SOFTWARE AND TREND MICRO PROVIDES THIS SOFTWARE TO YOU "AS IS." TREND MICRO MAKES NO PROMISES, REPRESENATATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE RELATING TO THE SOFTWARE, DOCUMENTATION OR CONFIDENTIAL INFORMATION COVERED UNDER THIS AGREEMENT, AND TREND MICRO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. TREND MICRO DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE WITHOUT ERROR OR INTERRUPTION. YOU SHAL HAVE THE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACKUP OF ANY DATA AND/OR EQUIPMENT USED WITH THE SOFTWARE AND YOU WILL HOLD HARMLESS AND INDEMNIFY TREND MICRO FROM ANY AND ALL CLAIMS AGAINST TREND MICRO FOR LOST DATA, RE-RUN TIME, INACCURATE OUTPUT, WORK DELAYS OR LOST PROFITS RESULTING FROM THE USE OF THE SOFTWARE, OR ANY PORTION THEREOF. 12. LIMITATION OF LIABILITY. IN NO EVENT SHALL TREND MICRO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOST OR CORRUPTED DATA, LOST PROFITS OR SAVINGS, LOSS OF BUSINESS, BUSINESS INTERRUPTION, OR OTHER ECONOMIC LOSS) ARISING OUT OF OR RELATED TO THE USE OF THE SOFTWARE OR THIS AGREEMENT, WHETHER OR NOT TREND MICRO HAS BEEN ADVISED OR KNEW OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION OR THEORY ASSERTED. USER ASSUMES ALL RISK ARISING OUT OF USE OF THE SOFTWARE HEREUNDER. SOME COUNTRIES, STATES AND PROVINCES, INCLUDING MEMBER STATES OF THE EUROPEAN ECONOMIC AREA, DO NOT ALLOW CERTAIN EXCLUSIONS OR LIMITATIONS OF LIABILITY, SO THE ABOVE

5 DISCLAIMER AND/OR LIMITATION OF LIABILITY PROVISION MAY NOT FULLY APPLY TO YOU. YOU MAY HAVE ADDITIONAL RIGHTS AND REMEDIES. SUCH POSSIBLE RIGHTS OR REMEDIES, IF ANY, SHALL NOT BE AFFECTED BY THIS AGREEMENT. 13. EXPORT CONTROL. You agree to comply with all applicable laws including but not limited to the export control laws of the United States. You shall not export nor reexport the Software or any Confidential Information related thereto without the appropriate United States and foreign government licenses. By accepting this Agreement, You confirm that You are not a resident or citizen of any country currently embargoed by the U.S. or are not otherwise prohibited under the exports laws from receiving the Software. A list of embargoed countries is available at the official web site of the Office of Foreign Assets Control of the U.S. Department of the Treasury at U.S. GOVERNMENT RESTRICTED RIGHTS. If You are an agency or unit of the United States Government, then You acknowledge that the Software, (i) was developed at private expense, (ii) is commercial in nature, (iii) is not in the public domain, and (iv) is "Restricted Computer Software" as that term is defined in Clause of the Federal Acquisition Regulations (FAR) and is "Commercial Computer Software" as that term is defined in Subpart of the Department of Defense Federal Acquisition Regulation Supplement (DFARS). The Government agrees that (i) if the Software is supplied to the Department of Defense (DoD), the Software is classified as "Commercial Computer Software" and the Government is acquiring only "restricted rights" in the Software and its documentation as that term is defined in Clause (c)(1) of the DFARS, and (ii) if the Software is supplied to any unit or agency of the United States Government other than DoD, the Government's rights in the Software and its documentation will be as defined in Clause (c)(2) of the FAR. 15. GENERAL. This Agreement and any related disputes will be governed by the laws of the State of California, excluding its conflict of laws provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. The courts in the State of California shall have exclusive jurisdiction over any dispute arising out of or related to this Agreement, except for injunctive or other interim relief. If any provision of this Agreement is found invalid, the remaining provisions will remain in full force and effect. BY SELECTING THE I AGREE BOX OR OTHER SIMILAR BOX PRIOR TO DOWNLOAD, AND/OR DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE, YOU ACCEPT TREND MICRO'S OFFER TO LICENSE THE SOFTWARE FOR EVALUATION AND/OR TESTING PURPOSES UNDER THESE TERMS AND CONDITIONS. If You do not accept Trend Micro's offer or You wish to license the Software for production use, contact: Trend Micro Incorporated, N. De Anza Blvd., Cupertino, CA Telephone: (408) Fax: (408) Address all questions about this Agreement to: legalnotice@trendmicro.com.