TREND MICRO
PRE-RELEASE SOFTWARE
TEST OR
EVALUATION AGREEMENT
NOVEMBER
2013
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 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 pre-release
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.
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; 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 email
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 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 SHALL 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 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 re-export 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 http://www.treas.gov/ofac/.
14. 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 52.227 19 of the
Federal Acquisition Regulations (FAR) and is "Commercial Computer
Software" as that term is defined in Subpart 227.471 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 252.227 7013(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 52.227 19(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, 10101 N. De Anza Blvd., Cupertino, CA 95014.
Telephone: (408) 257-1500. Fax: (408) 257-2003. Address all
questions about this Agreement to:
legalnotice@trendmicro.com.
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