TERMS OF SERVICE FOR TREND MICRO CLOUD SERVICES ,THAT ARE HOSTED BY OR ON BEHALF OF TREND MICRO,(these “Terms of Service”),IMPORTANT: READ CAREFULLY.THE RIGHT TO ACCESS AND USE EACH OF TREND MICRO’S CLOUD SERVICES BY ,BUSINESS,GOVERNMENTAL,AND OTHERLEGALENTITIESARESUBJECTTOANDCONDITIONEDONACCEPTANCEOF ,AND AGREEMENT TO THESE TERMS OF SERVICE.
CLOUD SERVICES ARE NOTAVAILABLE FOR PERSONAL USE, HOME ,USE, AND/OR CONSUMER USE.
IF COMPANY AND TREND MICRO HAVE ENTERED INTO A MANUAL/ELECTRONIC ,SIGNATURE-BEARING CORPORATE LICENSE AGREEMENT (OR OTHER SIMILAR DOCUMENT) WITH RESPECT TO THE ,ACCESS TO AND/OR USE OF ANY TREND MICRO CLOUD SERVICE, THEN SUCH AGREEMENT WILL GOVERN AND ,CONTROL THE ACCESS TO AND/OR USE OF SUCH CLOUD SERVICE AND THESE TERMS OF SERVICE WILL HAVE NO ,EFFECT WITH RESPECT THERETO.
OTHERWISE, THESE TERMS OF SERVICE SHALL GOVERN AND CONTROL ,COMPANY’S ACCESS TO AND/OR USE OF ANY CLOUD SERVICE ACQUIRED HEREUNDER.
Any additional, conflicting,or,different terms or conditions proposed by Company in any Company-issued document (such as an Order), are hereby rejected by Trend ,Micro and excluded herefrom.,Trial andPaidUse:CloudServicesaremadeavailablebyTrendMicrofromtime-to-timethroughitsResellersordirectlyfromTrend ,Micro, but Cloud Services are not available or sold for personal use, home use, and/or consumer use by any ,person.,Product Exclusions: These Terms of Service do NOTapply to: (a) any standalone application software whether or not acquired from a,Reseller,directfromTrendMicro,oranOnlineStoreProvider(asdefinedinSection1.2below)store;(b)any ,integrated application software that is embedded in or preloaded on a hardware-based appliance.
or (c) any ,annual maintenance for such software licensed by Trend Micro, it being understood that the terms and ,conditions governing those different Trend Micro products are set forth in the Global Business Software and ,Appliance Agreement at,trendmicro.com/eula.,EffectiveDate:1 January 2021,COMPANYISORDERINGORHASORDEREDACLOUDSERVICETHROUGHCOMPANY’SRESELLERORDIRECTLYFROM ,TREND MICRO FOR ACCESS AND USE IN CONNECTION WITH COMPANY’S INTERNAL BUSINESS USE.
BY COMPANY: (1) ,ORDERINGA CLOUD SERVICE.
(2) CAUSING TREND MICRO TO PROVISIONA CLOUD SERVICE.
AND/OR (3) ACCESSING,OR USINGA CLOUD SERVICE, COMPANY AGREES THAT ANY SUCH ACTIONCONSTITUTES:,a.COMPANY’SACKNOWLEDGEMENTTHATITHASHADTHEOPPORTUNITYTOREADANDREVIEWTHESE ,TERMS OF SERVICE;,b.COMPANY’SACCEPTANCEANDAGREEMENTTOTHESETERMSOFSERVICEFORSUCHCLOUDSERVICE;,c.COMPANY’S ONGOING REPRESENTATION AND WARRANTY TO TREND MICRO THAT COMPANY MEETS ,(AND AT ALL TIMES WILL COMPLY WITH) ALL OF THE TERMS, CONDITIONS, AND REQUIREMENTS SET ,FORTH IN THESE TERMS OF SERVICE;AND,d.COMPANY’S REPRESENTATION AND WARRANTY TO TREND MICRO THAT COMPANY’S ,REPRESENTATIVE ACTING ON ITS BEHALF IS AUTHORIZED TO AND DOES POSSESS THE AUTHORITY TO ,ACCEPT, AGREE, AND BIND COMPANY TO THESE TERMS OFSERVICE.,COMPANY AGREES THAT WRITTEN APPROVAL IS NOTA PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF ,THESE TERMS OF SERVICE AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL SHALL BE CONSTRUED AS AN ,INFERENCE TO THE CONTRARY.,IF COMPANY DOES NOTACCEPT AND AGREE TOTHESE TERMS OF SERVICE, COMPANY MAY NOT ORDER, REGISTER, ,DEPLOY, ACCESS, OR USE A CLOUD SERVICE AND COMPANY WILL IMMEDIATELY NOTIFY TREND MICRO AT,legal_notice@trendmicro.comTHAT COMPANY DOES NOT AGREE TO THESE TERMS OF SERVICE AND WILL NOT BE ,ACCESSING OR USING SUCH CLOUD SERVICE.
AGREED DEFINITIONS USED IN THESE TERMS OF SERVICE ARE IN ,SECTION 1.2BELOW.,1.Overview.
AgreedDefinitions.,1.1.1ApplicationofTheseTermsofService.Subjectalwaystoterminationinaccordanceherewith,theseTermsofServicethat ,havebeenacceptedandagreedbyCompanyareapplicableonlytotheCloudServiceforsuchtimethattheCloudServiceissubjecttoanoutstanding ,Order that Company has issued directly or indirectly to, and has been accepted by, TrendMicro.,1.1.2Entire Agreement.
The Company and Trend Micro agree that these Terms of Service (including the Standard Contractual ,Clauses and Data Processing Addendum that form a part hereof and set forth certain of the responsibilities of the Parties with respect to GDPR ,Data) are the final, complete, and exclusive statement of the agreement between the Parties with respect to access to and useof the Cloud Service ,securedbyCompanyunderanOrder,andanyprioragreements,representations,statements,whitepapers,oradvertisementofTrendMicro(whether ,oral, written, or website) or otherwise arising from any course of dealing between the Parties or usage of the trade or descriptions that are not ,specificallysetforthintheseTermsofServicewithrespecttothesubjectmatterhereof,areallmergedintoandsupersededbytheseTermsof,Service.
Trend Micro will not be bound by, and specifically objects to, any term, condition or other provision that is different from or in addition ,to the provisions of these Terms of Service (whether or not it would materially alter these Terms of Service) and which is submitted by Company ,in any Order, confirmation, correspondence or other document.
In entering into these Terms of Service, each Party represents and warrants ,to the other Party that it is NOT relying on any extrinsic representation, warranty, guarantee, condition, covenant, promise, forbearance, ,or inducement of any kind or nature that is or was made by any person that is not specifically set forth in these Terms of Service.,1.1.3Procurement Under these Terms of Service.
Company may secure CloudServices under these Terms of Service by one ,of twomethods:,a.Procurement Through a Reseller.
Typically, Company will secure a Quote for Cloud Services from a Reseller of Trend Micro ,products or services.
Based on such Quote, Orders by Company will be sentto the Reseller at such prices, discounts, and on invoice and payment ,terms as agreed solely by Company and its Reseller.
Company understands that if an Order is placed with a Reseller, the Reseller can place an order ,with Trend Micro for Cloud Services (either directly through Trend Micro or through a Trend Micro distributor) as requested by Company, but ,such Order is and will be subject to acceptance or rejection by Trend Micro at its discretion.
Based on documents submitted by the Reseller, Trend ,Micro will reject or accept the Order, which acceptance is signified by Trend Micro’s issuance of its Certificate to Company.
Except for the matters ,agreed in the first sentence of this paragraph between the Reseller and Company, all other rights, obligations, terms, conditions,limitations,and,exclusionsregardingCloudServicesthatarepurchasedbyCompanyareexclusivelysetforthintheseTermsofService.
All payments by Company ,for Cloud Services Ordered from a Reseller will only be made directly to the Reseller and never to Trend Micro.
Company acknowledges that each ,Reseller is an independent contractor and in no event or circumstance will any Reseller now or hereafter be deemed a joint venturer, partner, ,fiduciary, or agent of Trend Micro.
No Reseller has been, or will ever be, authorized or permitted to have a right tocreateanybindingobligation,,responsibility,duty,liability,condition,warranty,guaranty,oranyotherwisecontractfororactonbehalfofTrend Microorwaiveorrenounceany,rightofTrendMicroormodifyanyright,obligation,oragreementofCompanysetforthintheseTermsofService.,b.DirectPurchasefromTrendMicro.Companymay(ifpermittedbyTrendMicro)secureaQuotedirectlyfrom,andplacean ,Order directly with, Trend Micro based on such Quote, which Order if accepted by Trend Micro will be governed solely by the terms, conditions, ,limitations, and exclusions set forth in these Terms of Service (including the Certificate).
All prices and payment terms will be as set forth in the ,Quote by Trend Micro and all payments for Cloud Services will be made by Company directly to Trend Micro on such payment terms as set forth ,in suchQuote.,1.1.4NotaMasterPurchaseAgreement.CompanyacknowledgesthatthisisNOTamasterpurchaseagreementforsubsequent ,purchases of a Cloud Service, but rather, these Terms of Service only apply to the instant Order of a Cloud Service by Company.
Each subsequent ,Order of Cloud Service placed by Company will be made subject to and conditioned on the agreement of the Parties to the then-current version of ,these Terms of Service unless otherwise agreed in a writing signed by theParties.,1.2Agreed Definitions.
In addition to initially capitalized definitions, descriptions,clarifications, and agreements that may be ,set forth elsewhere in these Terms of Service (including all policies, procedures, and Trend Micro websites that are specifically referenced and ,incorporatedherein),theinitiallycapitalizeddefinitions,descriptions,clarifications,andagreementsshallhavethemeaningssetforthinthisSection,1.2 (each is an “Agreed Definition”) and all Agreed Definitions shall be equally applicable to the singular, plural, and derivative forms.,“Administrator” means one ormore Company employees with authorization to manage the Cloud Service on behalf of Company.
Each ,Administrator will have the ability to, among other things, develop Company’s Configuration from time-to-time, maintain, set rules and policies ,for, manage Company’s access to, view alerts and events generated by, and/or provide technical support for, all or part of Cloud Service as,determined by Company from time-to-time.,“Affiliate” means as to a Party, each person that is Controlled by a Party, that Controlssuch Party, or that is under common Control ,with such Party.
“Control” means the direct or indirect ownership of more than fifty percent (50%) of the equity shares or interests (or the maximum,equityownershippermittedbyApplicableLawifsuchPartyisnotpermittedtoown morethan50%)entitledtovoteforthedirectorsor other,managementofsuchPartyortheequivalent,butonlyforaslongassuchownershiprelationshipcontinuestoexist.Uponrequest,eachParty agrees ,to confirm in writing to theother Party, the status of any or allAffiliates.,“Applicable Laws” means all mandatory national, federal, provincial, state, municipal, and local laws, statutes, acts, ordinances, ,regulations, rules, codes, treaties, executive orders, supervisory requirements, official directives, circulars, opinions, interpretive letters, and other ,official releases in the Territory that are applicable from time-to-time to a Party’s performance of its obligations and/or exercise of its rights ,hereunder, including, but not limited to, data protection/privacy laws.
corrupt activities/illegal payment laws.
economic/trade sanctions rules and ,regulations.
and export/import laws.,“Certificate” means a written (electronic or otherwise) acceptance/entitlement confirmation issued by Trend Micro that confirms the ,Cloud Services purchased by Company hereunder, including the applicable Service Capacity where applicable.
The Certificate and these Terms of ,Service forms the entire agreement between Trend Micro and Company with respect to each Cloud Service that is purchased hereunder.
Company ,is advised to retain the Certificate as proof of its entitlement to such Cloud Service(s).
In some regions covered hereby, the Certificate is sometimes ,referred to as a License Certificate or an EntitlementCertificate.,“Cloud Service(s)” means any Trend Micro-branded combination of hardware, software components, and/or any fixed scope, ,technical/managedservicethatformtheenvironmentofacloudsecurityservice(includinganyEnablingSoftwareandanyinfrastructure/platform ,formingapartthereofthatishostedbyoronbehalfofTrendMicrointheprovisionofsuchCloudService)thatisaccessedand/orusedbyCompany ,in accordance with Terms of Service for the Service Capacity (as evidenced on the Certificate) that Company has purchased directly from Trend ,Micro or indirectly from a Reseller.
A then-current list of all Cloud Services offered by Trend Micro to which these Terms of Service apply is set ,forthattrendmicro.com/eula.,EachCloudServicealsoincludesanyServiceDescriptionrelatedtosuchCloudService,EnablingSoftware(ifany), ,and/oranyfixedscope,technical/managedservice,aswellasanyandallcontent,workproduct,errorcorrections;updates;upgrades;newversions.
,orotherreleasesformingapartofsuchCloudServicearisingfromSupportServicesorotherwise;andallcontentandfunctionalityavailablefrom ,Trend Micro support site(s) that Trend Micro may elect to make available to customers of such Cloud Service.
For the avoidance of doubt, these ,Terms of Service do not grant Company any right to request or receive a binary code copy of any Trend Micro published software except for ,EnablingSoftware (if any) that may form a part of a CloudService.,“Cloud Service Feedback” shall have the meaning set forth in Section 6.2.,“Company” refers to a entity that: (a) has agreed to these Terms of Service with respect to Cloud Service.
(b) has purchased and then-,currently has the right to accesses and/or use (only in accordance with these Terms of Service) Cloud Service hereunder as evidenced by a ,Certificate.
and(c) to which these Terms of Service have not been terminated or otherwise expired.,“Company’s Configuration” shall have the meaning set forth in Section 4.1.3.,“CompanyData”meansanyandallcontent,materials,data,andinformation:(a)uploadedortransmittedbyoronbehalfoftheCompany ,to the Cloud Service environment provided hereunder.
and/or (b) otherwise provided or made available to Trend Micro in the course of the ,Company's use or access to or receipt of Cloud Services or SupportServices.,“Confidential Information” shall have the meaning set forth in Section 6.1.,“Contractor”isanindependentcontractorthatprovidesservicesinsupportofCompanyand/oritsAffiliateswithrespecttoanyCloud ,Service provided hereunder pursuant to a written agreement between such Contractor and Company that imposes an obligation (among other ,obligations) on such Contractor to fully comply with these Terms of Service to the extent of access to and/or use of any Cloud Service by such ,Contractor.,“Controlled Technology” shall have the meaning set forth in Section 11.4.,“Cyberthreat Data” means any malware, spyware, virus, worm, Trojan horse, ransomware, or other potentially malicious or ,harmful code or files that Company does not want, as well as URLs, DNS data, network telemetry, commands, executable binary files, ,macros, scripts, processes or techniques, metadata, or other information or data associated with the foregoing, that may be related to ,unauthorized intrusions or attacks by third parties associated therewith and that: (a) Company provides to Trend Micro in connection with ,these Terms of Service.
or (b) is accessed, collected, or discovered by Trend Micro during the course of providing any CloudService, ,excluding any such information or data that identifies Company or to the extent that it includes Personal Data.
Cyberthreat Data is not ,Confidential Information or Company Datahereunder.,“Data Processing Addendum” or “Addendum” means Trend Micro’s Data Processing Addendum (at trendmicro.com/dpa,or as may ,be requested by Company from legal_notice@trendmicro.com) that is applicable if and to the extent Trend Micro acts as a ‘processor’ or ‘sub-,processor’ (as defined in the GDPR) for Company ofGDPR Data.
The Parties agree that the Data Processing Addendum and the Standard ,ContractualClausesthatformapartthereofareincorporatedhereinandmadeaparthereofforallpurposesonthetermsandsubjecttotheconditions ,and limitations set forth herein andtherein.,“Different Terms” shall have the meaning set forth in Section 2.2.,“Enabling Software” means binary code software agent, client, or tool that may be published by Trend Micro from time-to-time and ,licensed(butneversold)hereunderthatisinstalledonCompany’sdevice(s)thatenablesandfacilitatesoptimalaccesstoanduseofaCloudService ,(suchasamanagementconsoleoruserinterface),andthatdoesnotperformfunctionalitywithouttheactiverighttoaccessanduseCloudService.
,Enabling Software may or may not be identified in the ServiceDescription.,“End User” means any individual, entity, or person (directly or indirectly through another user) that: (a) accesses or uses a Cloud ,ServiceforCompany’s(oranAffiliate’s)benefitinaccordancewiththeseTermsofServicesuchasCompany’sAdministrator(s),technical/support ,resources, or employees/contractors whose access/use is in furtherance of Company’s or an Affiliate’s Internal Business Use.
or (b) otherwise ,accesses or uses CloudService.,“Evaluation Service” shall have the meaning set forth in Section 2.3.,“ExcludedDamages”meansanyandallclaims,causesofaction,losses,expenses,ordamagesofCompanyand/oritsAffiliatesarising ,fromorrelatedtoany:lossofuseofanynetworks,systems,software,hardware,computers,ordevices;unauthorizedaccessto,alterationof,orthe ,deletion,destruction,corruption,damage,loss,ofanyinformation/dataand/ortherestorationthereof;lostoranticipatedbusinessrevenueorprofits.
,loss of business opportunity or failure to realize expected savings.
third party claim against Company and/or any of its Affiliates.
reduction in ,reputation, or goodwill.
loss of use or other downtime of all or a portion of a Cloud Service (or supporting hosting platform) for any reason, ,including as a result of power outages, system failures, internet failures, or other denial of access to or interruption of such Cloud Service.
,procurementofsubstitutegoods,softwareorservices;orotherwiseforanyotherincidental,punitive,exemplary,indirect,special,orconsequential ,damages.,“Excused Performance Events” means any event, condition, and/or circumstance beyond Trend Micro´s reasonable control that was ,unavoidableevenifforeseeable,including,withoutlimitation:actsofGod;declaredorundeclaredwar;terrorism;sabotage;criminalactions;armed ,conflict.
actions of civil authorities or governments.
earthquakes.
fires.
floods.
cyber-attacks.
network intrusions.
“zero day” threats or attacks.
,private or state-actor hacking, denial-of-service attacks, or other malicious actions.
telecom/internet congestion, slowdown or outage.
computer, ,networks, or systems failures or delays involving hardware, software, or services notwithin Trend Micro’s possession, control and responsibility.
,or labor strike, embargo, orboycott.,“GDPR” means the European Union General Data Protection Regulation that is only applicable to Personal Data that is subject to, ,regulated by, and protectedunder the GDPR and shall also include additional laws, rules, and regulations now or hereafter promulgated by the ,European Union, any Member State, or other governmental authority under or supplemental to the GDPR, as the same may be amended,,supplemented or replaced from time to time.
and ‘controller,’ ‘processor,’ and ‘data subject’ shall have the meanings respectively assigned to them ,in the GDPR.,“GDPR Data” shall mean ‘personal data’ (as defined in Art.
4 of the GDPR) under the GDPR that is made available or supplied by ,Company to Trend Micro pursuant to these Terms of Service, if and only to the extent that the GDPR applies to Trend Micro with respect to its ,processing of such Personal Data.,“Global Privacy Notice” means Trend Micro’s Global Privacy Notice published from time-to-time at ,https://www.trendmicro.com/en_us/about/legal/privacy-policy-product.htmlor as may be requested by Company from ,legal_notice@trendmicro.com.,“High-Risk Environment” means a device, situation, environment, network, or system requiring safety design, features, and/or ,functionalityforfail-safeorfault-tolerantoperationorexecutioninordertomaintainsafeandsecureperformanceinanenvironmentwhereafailure ,could lead (directly or indirectly) to bodily injury, death, physical property damage, and/or environmental damage.
High-Risk Environments may ,include, but are not be limited to: (a) the design, construction, operation, or maintenance of any nuclear facility, civil infrastructure such as power ,plants and waterworks, manufacturing facilities, and/or industrial plants such as chemical refineries.
(b) navigation, communications, or operating ,systems in aircraft, ships, trains, and other modes of transportation.
(c) air traffic control systems.
(d) weapons systems (nuclear or otherwise).
(e) ,operationoflife-supportorlife-criticalmedicalequipmentorotherequipmentorsystemsaffectingapatient’shealthorwell-being;or(f)anyother ,device, environment, network, or system in which the unavailability, inaccuracy, circumvention, ineffectiveness, or failure of the Cloud Service ,could lead or contribute to bodily injury, death, physical property damage, and/or environmentaldamage.,“Instance” means an image of software that is created by executing the software’s setup or install procedure or by duplicating such an,image.,“InternalBusinessUse”meanstheinternalbusinessaccessanduseofCloudServicessolelybyandforthedirectbenefit ofCompany ,specificallyinconnectionwiththesecurity,protection,and/orintegrityofCompany’ssystems,networks,devices,documents,emails,and/orother ,CompanyData.,“IP Claim” means any suit, cause of action, or other legal proceeding filed/brought against Company by a third party in the courts of ,law, equity, or otherwise ONLY in the Territory, that asserts that Company’s use of a Cloud Service (or component parts thereof, but not Open ,Source Software) provided hereunder directly infringes any patent, copyright, or trademark of such third party, or makes unlawful use of a trade ,secretofsuchthirdparty;provided,however,thetermIPClaimwillnotincludeandTrendMicrowillhavenoobligationhereunderunlesseachand ,everythirdpartyallegation orassertionisspecificallymadeagainstsuchCloudServicealone.Inaddition,theterm IPClaim willnotinclude,and ,TrendMicrowillhavenoobligationunderSection10orotherwisewithrespectto,anysuit,claim,causeofaction,orotherlegalproceedingarising ,out of, based on, or related to the following: (a) any use of Cloud Service by Company that is NOT in accordance with these Terms of Service, its ,Service Description, or Applicable Laws.
(b) Company Data and/or other materials that Company provides or makes available in connection with ,itsuseofCloudService;(c)anyredistributionofCloudService,oruseofCloudServiceforthebenefitofanythirdpartynotspecificallypermitted ,herein.
(d) any use of a version of any Enabling Software that has been superseded and made available to Company, if the IP Claim would have ,been avoided by using an unaltered current version of such Enabling Software;(e) any Open Source Software.
or (f) any third party allegation or ,assertion made against a Cloud Service (or any output thereof) that involves use of such Cloud Service by Company in combination with any other ,software, service, business process, or technology not provided by Trend Micro or not specified as being required by the applicable Service ,Description where the IP Claim would not have arisen or would have been avoided but for suchcombination.,“Online Store Provider” means an entity that hosts an online marketplace or store (each a “Store”) that offers for sale: (a) such entity’s ,infrastructure (IaaS) and/or platform (PaaS) hosting services by separate agreement and a separately-stated service fee with the customer (such as ,Company).
together with (b) the software applications of third party publishers (such as Trend Micro) that are offered and resold (for a separately-,stated royalty/fee) by such Online Store Provider for deployment on the Store’s infrastructure and/or platform, but licensed to the customer by the ,application software publisher for a limited term and not perpetually.
Company acknowledges and agrees that license to deploy, access, and use ,Trend Micro application software that is procured by Company on an Online Store Provider’s store is NOT subject to these Terms of Service, but ,rather, is governed by the Trend Micro Global Business Software and Appliance Agreement set forth at trendmicro.com/eula, ,or as may otherwise ,be posted on the Store listing by Trend Micro from time-to-time.,“Open Source Software” means: (a) each and every third party software code/component that is licensed/distributed under a license ,agreementapprovedbytheOpenSourceInitiativeorsimilaropensourceorfreewarelicense(andnottheseTermsofService);and(b)isincluded ,inaCloudServiceoranyEnablingSoftwarebyTrendMicro;includinganyofthefollowingOpenSourceInitiative-approvedlicenseagreements:,(i)GNU'sGeneralPublicLicense(GPL),Lesser/LibraryGPL(LGPL),andGNUAfferoPublicLicense;(ii)TheArtisticLicense(i.e.,PERL);(iii) ,the Mozilla Public License.
(iv) the Netscape Public License.
(v) the Berkeley software design (BSD license including Free BSD or BSD-style ,license.
(vi) the Sun Community Source License (SCSL).
(vii) an Open Source Foundation License (e.g., CDE and Motif UNIX userinterfaces);,(viii) the Apache Server license.
or (ix) the MIT License.
For the avoidance of doubt, each individual, third party software code/component of Open ,Source Software has its own copyright and its own license agreement.,“OptionalFeatures”meansthosecapabilities,features,andfunctionalityinaCloudServicethatrequireTrendMicrotoprocesscertain ,CompanyData (someofwhich maybeGDPRDataorPersonalData)thatCompanymayelecttoopt-inoropt-outoftheusethereofonlyifandto ,the extent a right to opt-in or opt-out is described in and permitted by its Service Description.
For example, such Optional Features if active may ,permitaCloudServiceto:(a)providethedefinedcapabilities,features,andfunctionality thereofasdescribedintheServiceDescription;and/or,(b)provide the most effective, up-to-the-minute threat protection and featuresto detect or prevent the latest malicious behavior and potentially ,fraudulent websites, internet security risks, and/or CyberthreatData.,“Order”means:(a)apurchaseorderorotherorderingdocumentissuedbyCompanyinresponsetoaQuote;or(b)aCompany-initiated ,procurementdocument,ineachinstanceplacedbyCompany(withaResellerorTrendMicro,asthecasemaybe)fortheprocurementofCloud,Services to be supplied only in accordance with and subject to the provisions of these Terms of Service.
All Orders are Customer’s irrevocable ,commitment to purchase and pay for the Cloud Services stated in the Order and are subject to direct or indirect acceptance byTrend Micro at its ,sole discretion, which acceptance occurs and is signifiedby Trend Micro’s issuance of a Certificate to Company for such Cloud Services or other ,Trend Micro performance signifying its acceptance.,“Party” means only each of Company and Trend Micro, and together, they are collectively the only “Parties.” All other persons are ,third parties.,“Personal Data” means one or more data elements relating to an identified or identifiable natural person that can be used to identify, ,directly or indirectly, such natural person to the extent such data is regulated, protected, restricted, or controlled under Applicable Laws (such as, ,for example, the GDPR) for the protection of that natural person's privacy and related rights.,“Quote(s)”meansoneormoredocumentsissuedbyTrendMicrooritsReseller(asthecasemaybe)toCompanyspecifyingtheCloud ,ServicethatCompanyseekstoobtain,therelatedpricing,paymentterms,andofferedServiceCapacityandsufficientotherinformationtocomplete ,the transaction.
Each Quote shall incorporate these Terms of Service (specifically, by reference, and/or publication of Trend Micro’s website) as ,the sole basis and governing document for any procurement by Company based on theQuote.,“Reseller” means a reseller, Online Store Provider (in limited instances where specifically noted by the Store), system integrator, ,independent software vendor, VAR, OEM or other channel partner that is authorized by Trend Micro or its distributor to secureorders for the sale ,of Cloud Services to customers, including Company.,“Sandboxing” means a separate, secured code execution environment hosted by Trend Micro that permits it to inspect Cloud Service-,selected Company Data for suspected Cyberthreat Data.,“Service Capacity” means the applicable Subscription Period together with the number of Virtual Machines, Instances, End Users, ,throughputvolume,emailaddresses,nodes,othermeasure,and/orothermeteringmechanismforeachCloudServicepurchasedundertheseTerms ,of Service that is reflected the Certificate therefor.
If a Cloud Service permits Company to exceed the Service Capacity thatis purchased by ,Company, then Company is responsible for promptly purchasing an additional quantity to true-up for any excessusage.,“ServiceDescription”meanstheprinted,electronic,and/oronlinetechnicaldocumentationandoperatinginstructionsandrequirements ,generally made available by Trend Micro for a Cloud Service (and Enabling Software, if any) that is made available to Company for the purpose ,of supporting Company’s Internal Business Use of such Cloud Service.
The Service Description is incorporated herein and made a part hereof for ,all purposes.
provided, however, Company understands and agrees that the published Service Description may be revised from time-to-time by ,TrendMicroatitsdiscretion,foramongotherreasons,changesorimprovementsto,ornewversionsof,CloudService,withouttheneedtoamend ,these Terms of Service, and in each such event, such revised Service Description will supersede all prior Service Descriptions with respect to ,subsequent use of such Cloud Service.
Trend Micro states that certain Cloud Services may be subject to service level targets,service level objectives, ,or service level agreements that may be published or otherwise made available by Trend Micro fromtime-to-time.,“Smart Protection Network” or “SPN” means Trend Micro’s Smart Protection Network.,“StandardContractualClauses”or“Clauses”orsometimesalsoreferredtothe“EUModelClauses”meanstheStandardContractual ,Clauses (processors) published by the European Commission, which Standard Contractual Clauses are attached to the Data Processing Addendum ,at trendmicro.com/dpaor as may be requested by Company fromlegal_notice@trendmicro.com.,“SubscriptionPeriod”meanstheperiod(suchasperhosthour,month,oryear,butneverperpetually)forwhichCompanyhaspurchased ,therighttoaccessanduseaCloudServiceprovidedhereunder.TheSubscriptionPeriodisasstatedintheCertificate.,“Support Services” are described in Section 5.1.,“Term” is described in Section 9.1.,“Territory”meansworldwideotherthanJapan,subjectalwaystoandlimitedbytheterms,conditions,waivers,limitations,disclaimers, ,and exclusions in these Terms of Service, and present and future Applicable Laws that applies to the Cloud Services and/or the performance of ,either Party hereunder that prohibits or restricts a Cloud Service sale, use, or access: (a) to certain technology/goods/services.
(b) to specified ,countries.
and/or (c) by definedpersons.,“TrendMicro”meansineachinstancethatCloudServicesareacquiredundertheseTermsofService,theLicensingEntitythatprovides ,Cloud Services in such instance as determined by application of Section12.,“Virtual Machine” means a software container, implementation, or emulation of a computer/server/machine (i.e., a physical device) ,that runs its own operating system and executes application programs like a physical machine.,2.Grant for Cloud Service.
License to Enabling Software.
Open Source.
Security Acknowledgement;Evaluation.,2.1Grant.,2.1.1Grant of Access to and Use of Cloud Service.
On the terms and subject to Company’s continuous compliance with all of ,the agreements, conditions, exclusions, and restrictions set forth in these Terms of Service (including the Certificate), Trend Micro hereby grants ,only to Company, a non-exclusive, non-transferable, non-assignable, terminable (in accordance herewith or Applicable Law) limited right in the ,Territory to access and use Cloud Service in accordance with its Service Description only for Company’s Internal Business Use (and theInternal,Business Use of any of its Affiliates and/or Contractors as it permits in accordance with Section 2.11) for such time and only for the Service ,Capacitypurchasedandpaidfor(inaccordancewithagreedpaymentterms)byCompanyuntiltheexpirationorterminationoftheforegoinggrant ,in accordance herewith.
Company may allow access to and use a Cloud Service only for the purposes specifically permitted herein including the ,ServiceDescription.,2.1.2License to Enabling Software.
If a Cloud Service is accompanied by Enabling Software, then by downloading or installing ,any Enabling Software on any computer, Company agrees not to use such Enabling Software for any purpose other than to facilitate and/or enable ,Company's access to and use of such Cloud Service.
Subject to these Terms of Service, Trend Micro grants Company (solely for the Internal ,Business Use of Company except as otherwise permitted in Section 2.11) a non-exclusive, non-transferable, worldwide (subject to Applicable ,Laws), terminable (in accordance herewith) license to install and use any Enabling Software on equipment owned or operated by or on behalf of ,Company, solely as needed to access and/or use Cloud Service as described in the Service Description.
provided that, Company: (a) at all times ,complies with the terms and conditions of these Terms of Service and the Service Description.
(b) ensures that anyone (including End Users) who ,accesses or uses the Enabling Software (accessed either locally or remotely) in connection with Cloud Service (i) does so only on Company's (or an ,Affiliate’s if permitted by Company) behalf and for its sole benefit, and (ii) complies with the terms and conditions of these Terms ofService;,(c)doesnot(i)install,access,use,copy, modify,ordistributetheEnablingSoftwareexceptasmaybeexpresslypermittedinServiceDescriptionand ,these Terms of Service, and/or (ii) reverse assemble, reverse compile, otherwise translate, or reverse engineer the Enabling Software.
and (d) does ,not use any of the Enabling Software's components, files, modules, or related licensed materials separately from the Enabling Software.
Company ,acknowledges that the Enabling Software is copyrighted and licensed and not sold to Company under the terms of these Terms of Service and ,Company acknowledges that it is not hereunder granted any license, right, title, or interest in or to any patent, copyright, trade secret or other ,intellectual property of Trend Microor any third party.
All rights in and to Enabling Software not expressly granted to Company in this Section,2.1.2arereservedbyTrendMicroandCompanywillhavenootherordifferentrights(implied,byestoppel,orotherwise)orprivilegeswithrespect ,to any Enabling Software.If and to the extent only as maybe permitted in the Service Description, Company may make a single copy of the Enabling,Softwareforback-up,archival,anddisasterrecoverypurposes.TheEnablingSoftware(andeveryback-up,archive,anddisaster recovery copy) must ,be promptly un-installed and irretrievably destroyed when Company no longer has a right to access or use a Cloud Service providedhereunder.,2.2OpenSourceSoftware.EnablingSoftwaremaycomebundledorotherwisebedistributedwithOpenSourceSoftware,that ,issubjectsolelytotheagreementterms,conditions,limitations,anddisclaimersofthespecificlicense(each“DifferentTerms”)underwhichsuch ,Open Source Software is distributed by Trend Micro in such Enabling Code and NOT these Terms of Service.
Different Terms, if any, applicable ,to any Open Source Software redistributed in any Enabling Software provided hereunder will be identified by Trend Micro in the Service ,Description for, and/or in a "Read Me" or an "About" file in, the Enabling Software.
OPEN SOURCE SOFTWARE IS PROVIDED BY TREND ,MICRO “AS IS, WITH ALL FAULTS, AS AVAILABLE” WITHOUT (AND TREND MICRO SPECIFICALLY DISCLAIMS) ANY,GUARANTEE,CONDITION,ORWARRANTY(EXPRESS,IMPLIED,OROTHERWISE)OFANYKINDORNATURE,INCLUDING,BUT ,NOTLIMITEDTO,THEIMPLIEDWARRANTYOFMERCHANTABILITY,FITNESSFORAPARTICULARPURPOSE,SATISFACTORY ,QUALITY, TITLE, AND/OR NON-INFRINGEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS OF ,SERVICE, AS IT RELATES TO ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH OPEN SOURCE SOFTWARE, ,TREND MICRO SHALL HAVE NO LIABILITY FOR ANY DIRECT OR EXCLUDED DAMAGES, HOWSOEVER CAUSED AND/OR ,OTHERWISEBASED ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING ,NEGLIGENCEOROTHERWISE)ARISINGINANYWAYOUTOFTHEUSEOFOPENSOURCESOFTWARE,EVENIFTRENDMICRO ,HAS BEEN ADVISED OF THE POSSIBILITY OF SUCHDAMAGES.,2.3Evaluation of Cloud Service.
If Company has Ordered and agreed to these Terms of Service or otherwise entitled to an ,evaluation,trial,proof-of-concept,ortestofaCloudService(herein“EvaluationService”),thentheprovisionsofthisSectionshallapplyandshall ,control over any conflicting terms of these Terms of Service.
On the terms and subject to the conditions of these Terms of Service when and if ,acceptedandapprovedbyTrendMicro,CompanywillhavetherighttoconductatestoftheEvaluationServiceforaperiodnottoexceedthirty,(30) days (unless otherwise agreed to in writing by Trend Micro or earlier terminated in accordance with Sections 9 or 10), during which period ,Company may access and use the Evaluation Service solely for Company’sinternal evaluation in a non-production environment (that is to say, an ,environment that does not access or process any live production Company Data or otherwise perform productive work) to decide whether to ,purchasetherighttocontinuetoaccessandusetheEvaluationServiceforitsInternalBusinessUse.EvaluationServicesareprovidedgratuitously ,by Trend Micro.
Trend Micro has no obligation to provide any training or Support Service for the Evaluation Service, but Trend Micro may do so ,atitssolediscretion.CompanyacknowledgesthattheEvaluationServicemaycontainerrors,defectsorotherproblemsthatcouldcausesystemor ,other failures, security breaches, interruptions, and/or data loss.
CONSEQUENTLY, EVALUATION SERVICES ARE PROVIDED TO ,COMPANY SOLELY ON “AS AVAILABLE” AND “AS IS, WITH ALL FAULTS” BASIS, AND TREND MICRO DISCLAIMS ALL ,WARRANTIES, CONDITIONS, GUARANTEES, AND LIABILITY IN CONNECTION WITH ALL EVALUATION SERVICES.
COMPANY ,ASSUMES ALL RISK OF USE OF EVALUATION SERVICES.
WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE ,LIMITED, THE LIABILITY OF TREND MICRO, ITS LICENSORS, AND/OR SUPPLIERS SHALL BE LIMITED TO THE SUM OF ONE ,HUNDRED UNITED STATES DOLLARS (USD$100.00) IN THE AGGREGATE FOR ALL CLAIMS AND CAUSES OF ACTION.
If Company ,accesses and/or uses Cloud Service after expirationof Evaluation Services as set forth in this Section 2.3, Company agrees to pay for Cloud Service ,thereafter in accordance with Trend Micro’s rates and fees published by Trend Micro from time-to-time and the Parties agree that these Terms of ,Service shall apply to such paiduse.,2.4SecurityAcknowledgement.CertainportionsofCloudServicesaredesignedtoidentify,blockand/orremoveapplications, ,messages,andfilesthatmaycompromiseproductivityortheperformanceandsecurityofcomputers,systems,and/ornetworks.WhileTrendMicro ,uses commercially reasonable efforts to properly identify applications and files for detection by its Cloud Services, however, given the constantly ,changing nature and volume of malicious, fraudulent, and unwanted electronic content, Trend Micro cannot and does not represent, warrant, or ,guarantee that a Cloud Service will detect, block, or completely remove or clean any or all applications, routines, and filesthat are malicious, ,fraudulent, or that Company does not use or want.
Company understands and agrees that the success of its security efforts aredependent on a ,number of factors solely under Company’s control and responsibility such as: (a) use of a number of network, hardware, cloud services, and software ,security tools in a coordinated effort to manage present and future security threats.
(b) implementation of cybersecurity protocols and controls,,network,cloudservicesandsystemsprotections,aswellasmonitoringanddetectionprocessesapplicabletotheforegoing;(c)enforcement,of appropriate internal security policies, procedures, and controls regarding access, security, encryption, use, and transmission of data.
(d) the ,developmentandcontinualtestingofprocessesandprocedures(i)forthebackupandrecoveryofanynetwork,system,software,database,andany ,storeddata,aswellas,(ii)implementationofsecurity-breachincidentresponsepractices;(e)conductingregularcybersecurityandprivacytraining ,for employees.
(f) having adequate vendor risk management processes.
and (g) promptly downloading and installing all updates to all networks, ,products, and software that are made available to Company by any publisher ormanufacturer.,2.5Ownership.
Reservation of Rights.
Each Cloud Service is and remains the exclusive property of Trend Micro and/or its ,licensors and service providers.
Except for Company’s limited access and use rights expressly granted in these Terms of Service and the limited ,licensegrantedinSection2.1.2toEnablingSoftware,nolicense,right,title,orinterestinortoaCloudServiceorTrendMicro’sanditslicensor’s ,intellectual property rights therein, are granted to Company.
Company acknowledges and agrees that, as between the Parties, each Cloud Service ,andallideas,methods,algorithms,formulae,processes,andconceptsincorporatedintoCloudService,andallrevisions,corrections,modifications, ,enhancements, derivative works, releases, and upgrades, and anything developed (such as performance of an analysis of and anyall Cyberthreat ,Data provided with Company Data to a Cloud Service) or made available by or on behalf of Trend Micro under these Terms of Service and/or a ,CloudService,andanycopiesoftheforegoingare:(a)theintellectualpropertyofTrendMicro,itsAffiliates,and/oritsortheirlicensors/suppliers.
,and (b) all right, title, and interest therein are reserved to and the sole property of Trend Micro, its licensors, and/or such other persons as Trend ,Micro may determine.
Company will not alter or remove Trend Micro’s and its licensors’ copyright notices and all other proprietary legends from ,any part of CloudService.,2.6Changes and Improvements to Cloud Service.
Trend Micro reserves the right (at its discretion and without notice to or ,consent of any person) to continually improve, update, and offer new versions of Cloud Service (e.g., infrastructure/platform, features or ,functionality, security, technical configurations, and/or application features) during the Term, to reflect changes in, amongother things, laws, ,regulations, rules, technology, industry practices, patterns of use, and cyberthreat environment and capabilities.
Any such improvement, change, ,and/ornewversionofCloudServiceshallbegovernedbytheseTermsofServiceandshallnotbetreatedasabreachoftheseTermsofServicenor ,giveCompanyarighttoafullorpartialrefundofanymoniespaidorpayablehereunder,butCompanyacknowledgesthattheuseofsomeofwhich ,may be contingent upon Company’s agreement to additionalterms.,2.7End-of-Life.
Trend Micro reserves the right to discontinue the publication, sale, distribution, subscription, licensing, and ,supportofanyorallCloudServicesatanytimeandforanyreason(eacheventherein“End-of-Life”)byannouncementorpublicationofnoticeto ,the general public or revision of its price list.
Please refer to Trend Micro’s then-current End-of-Life Policies and a then-current list of Cloud ,Services subject to an End-of-Life notice athttps://success.trendmicro.com/support-policies.The Parties agree that an End-of-Life announcement ,of any Cloud Service shall not be considered a breach hereof by Trend Micro, nor shall any such End-of-Life entitle Company to any claim for ,compensation or damages as result of or in connectiontherewith.,2.8Acceptable Use.
Company will not make any use or disclosure of, or perform any acts with respect to, Cloud Service other ,than as expressly permitted by its Service Description or these Terms of Service.
Company may not and agrees that it will notas its material ,obligation hereunder (and any non-compliance with or breach thereof is a material breach by Company of these Terms of Service), nor will Company ,authorize, encourage, or permit third partiesto:,(a)Disable, tamper with, or otherwise attempt to circumventany billing mechanism that meters Company’s use of a Cloud Service or ,otherwise use a Cloud Service in a way intended to avoid incurring fees or exceeding the Service Capacity limitations in Certificate,or otherwiseattempttogainunauthorizedaccesstoaCloudService.,(b)Access or use any Cloud Service without permission in accordance herewith, including attempting to probe, scan, or test the ,vulnerability of the environment of any Cloud Service or to breach any security or authentication measures used by or in such ,CloudService.,(c)Modify, adapt, copy (except as may be expressly permitted herein with respect to Enabling Software), translate, disassemble, ,decompile,orreverseengineerCloudService(oranyofitscomponentsorpartsthereof),orotherwiseattempttoderivethesource ,codeof,decrypt,modify,orcreatederivativeworksof,CloudServiceoranypartthereof;provided,however,configuringaCloud ,Service within its policy parameters set forth in the Service Description to create Company’s Configuration shall not constitute a ,modification or derivativework.,(d)License, sublicense, sell, resell, loan, rent, lease, transfer, assign, distribute, or provide the benefit of any Cloud Service (or any ,portion thereof) to any third party except as specifically set forth in Section2.11.,(e)Use Cloud Service: (i) as a paid or unpaid service bureau or otherwise to provide services directly or indirectly to third parties ,(such as business processing outsourcing).
(ii) to provide services to third parties on atime-share basis.
or (iii) otherwise ,commercially exploit or make Cloud Service available to any third party save as set forth in Section2.11.,(f)Access,evaluate,observe,oruseaCloudService(oranyofitscomponents)tobuildorsupport(orassistathirdpartyinbuilding ,or supporting) the improvement and/or creation of a competitive product or service, or copy any ideas, features, functions, ,organization, structure, graphics, or user interface of Cloud Service for anyreason.,(g)Use a Cloud Service: (i) in a manner that violates Applicable Laws or otherwise to engage in or promote any illegal, harmful, ,fraudulent, offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, ,fraudulent, or offensive.
(ii) in a manner that infringes or misappropriates the intellectual property rights of any third party or ,otherwise that breaches these Terms of Service.
(iii) interfere with the use of Cloud Services by any third party.
or (iv) interfere ,with the proper functioning of the equipment and environment used to provide CloudServices.,(h)Publish or otherwise make available to any third party, any benchmark tests or performance analysis relating to Cloud Service,withouttheexpresswrittenpermissionofTrendMicrowhichmaybewithheldorconditionedatthesolediscretionofTrendMicro.,InadditiontoanyotherrightsorremediesaffordedtoTrendMicroundertheseTermofServiceorunderanyApplicableLaw,TrendMicroreserves ,the right, but has no obligation, to investigate suspected violations of undertakings in this Section or any misuse of a Cloud Service and to take ,remedial action if Company breaches or violates any of the foregoing commitments, including the suspension, removal, or disablementof access ,tosuchCloudServicebyCompany.Inaddition,CompanyagreesthatTrendMicromayreportanyactivitythatitsuspectsviolatesanyApplicable,Law to the appropriate law or regulatory enforcement officials and provide any assistance required under such Applicable Law.
Trend Micro shall ,have no liability to Company for damages or anything else in the event that Trend Micro takes any such action in good faith.,2.9High-Risk Environment.
Cloud Services are not fault-tolerant/fail-safe and are not intended, designed, tested, or certified ,to be reliable or suitable for use in High-Risk Environments and Trend Micro specifically disclaims any express or implied ,warranty/condition/guarantee of fitness for use of any Cloud Service in a High-Risk Environment.
Trend Micro notifies Company that no Cloud ,Service has been submitted for compliance testing, certification, or approval for any use by any governmental agency and/or aself-regulatory, ,standard-setting, or other industry/product-specific consensus organization in a High-Risk Environment.
As a condition to Company utilizing any ,CloudServiceinaHigh-RiskEnvironment,Companyagreesto:(1)secureandmaintainanyandallcertificationsand/orapprovalsrequiredunder ,anyApplicableLawwithrespecttoaCloudServicethatCompanyintendstodeployinaHigh-RiskEnvironment;and(2)undertakeallappropriate ,and/or necessary testing, fail-safe, backup, redundancy and other measures necessary to ensure the safe deployment and use of any Cloud Service ,byCompanyinaHigh-RiskEnvironment.Anyaccess,deployment,oruseofanyCloudServiceinaHigh-RiskEnvironmentshallbeatCompany’s ,sole liability and risk and Company does hereby irrevocably waive and renounce any and all claims or causes of action for losses, expenses, or ,damages (of every kind and nature) that Company and its Affiliates may now or hereafter have against Trend Micro and its Affiliates with respect ,to Company’s access, deployment, or use of any Cloud Service in a High-RiskEnvironment.,2.10Applicable Laws.
To the extent applicable to Company’s performance of its obligations and/or exercise of its rights ,hereunder (including without limitation in relation to Company's and its Affiliates’ (and its and their Contractors’) use and/or configuration of any ,Cloud Service), Company represents (on an ongoing basis) and warrants to Trend Micro and agrees that Company and its Affiliates’ (and its and ,theirContractors’)will:(a)complywithallApplicableLaws(including,withoutlimitation,theGDPRifandtotheextentapplicable)andwillnot ,useorconfigureanyCloudServiceorgiveanyinstructionstoTrendMicrowhichwouldorcouldinfringe,violate,orotherwisenotbeincompliance ,withanyApplicableLawsorcouldcauseTrendMicrotodoso;and(b)identify,procure,andmaintainanypermits,certificates,approvals,consents, ,and inspections that may be required or advisable in order to comply with Applicable Laws with respect hereto.
If there is any failure to comply ,withorbreachoftheseTermsofServicearisingoutoforrelatedtothisSection,Companywillpromptly(atnocostTrendMicro)doallthingsand ,takeallactionsasmaybenecessaryorappropriatetocureandcorrectanybreachor non-compliancewithanyApplicableLaws.,2.11Affiliate and/or Contractor Use.
For no more than the Service Capacity purchased by or on behalf of Company as evidenced,inaCertificate,TrendMicrograntsCompanytherighttoauthorizeandpermit(fornoadditionalfeesoramountsdueTrendMicroother thanthefees,alreadypayablewithrespecttotherightsgrantedtoCompany):(a)Company’sAffiliatestoaccessand/orutilizeCloudServicesonly in connection ,such Affiliate’s Internal Business Use for so long as such person remains an Affiliate of Company.
and (b) Contractors to Company and/or its ,Affiliates to access and/or utilize Cloud Services only in connection with the provision of business process support, technical support, hosting ,services, and/or outsourcing services to and solely for the use and benefit of Company and/or Affiliates in connection with its and their Internal ,Business Use and not for the benefit of any third party or such Contractor, all of the foregoing on the terms and subject to the limitations and ,conditions of these Terms of Service.
Each Affiliate and Contractor having access to, possession of, and/or utilization of any Cloud Service willbe,considered anauthorized userofCompanyundertheseTermsofServicewithrespecttosuchCloud Serviceand NOThavinganyrightsor deemed ,to be a third party beneficiary hereunder in any event or circumstance.
Company agrees at all times to require, ensure, and enforce compliance with ,the grants, terms, conditions, and limitations set forth in these Terms of Service as well as the Data Processing Addendum and Standard Contractual ,Clauses where applicable by Company’s Affiliates (including, without limitation, those applicable to the Affiliate’s GDPR Datathatmaybeexported,outsideoftheEEAtoTrendMicrobytheAffiliate’suseofanyCloudServicepurchasedbyCompany)and/orContractors having access to Cloud ,Services procured hereunder and, further, Company agrees that it shall at all times be and remain legally and financially responsibletoTrendMicro,forthecomplianceandnon-compliancewith,orbreachof,theseTermsofService(andtheStandardtheDataProcessing Addendum/Contractual ,Clauses where applicable) directly or indirectly caused by any Affiliate or Contractor.
For the avoidance of doubt, since all Support Services are to ,be provided by Trend Micro onlyto Company, no Affiliate and/or Contractor will be entitled to request or receive Support Services directly from ,TrendMicro.,3.CompanyResponsibilities.,3.1Cloud Service Setup.
Registration.
Administrators.
Company is responsible for architecting, selecting, configuring, ,registering,andsecuringoperationof,aswellassecuringandmaintainingconnectivityandaccessto,CloudService.CompanymustprovideTrend ,MicrowithallnecessaryoradvisableinformationtoallowTrendMicrotoprovisionandmakeavailableCloudService,aswellaspermitregistration ,that requires, among other things, an entity name and address, primary contact name and information, an email address, and other information as ,may be requested by Trend Micro from time-to-time.
Registration information will be treated as the Confidential Information of Company.
In ,accordancewiththeServiceDescription,CompanywillprovidetoTrendMicro(andmaintain),contactinformationforCompany'sAdministrator(s) ,whoaretheonlyEndUsersauthorizedorpermittedtoprovideinformationrequiredtomanage,createCompany’sConfiguration,aswellasrequest ,and undertake Support Services of a Cloud Service forCompany.,3.2Authentication Credentials.
Company has sole control over access and use by its End Users, Affiliates, and Contractors of ,a Cloud Service, and is responsible for ALL activity (whether authorized or unauthorized) occurring on Company’s Cloud Service account,hereunder.
Company is responsible for maintaining the confidentiality of any non-public authentication credentials associated with its access to and ,use of a Cloud Service.
Company will ensure that all End Users comply with Company’s obligations under these Terms of Service and that the ,terms and conditions of Company’s agreement with each End User are consistent with these Terms of Service.
If Company becomes aware of any ,breach or non-compliance of Company’s obligations under these Terms of Service by anEnd User or other third party such as an Affiliate or ,Contractor, Company will immediately terminate such person’s access to Cloud Service and notify Trend Micro.
Further, Companyis solely ,responsible for population, maintenance, security, protection, loss prevention, and backup of Company’s systems and networks, Company Data, ,and other content, information, and devices.,3.3Internet Transmission.
Company understands and agrees that no data transmission over the Internet by Company is ,guaranteed to be secureby Trend Micro.
Trend Micro is not responsible for any interception or interruption of any communications through the ,InternetornetworksorsystemsoutsideTrendMicro’scontrol.Companyissolelyresponsibleformaintainingthesecurityofitsnetworks,servers, ,applications and accesscodes.,3.4Fees.
Company will timely pay to its Reseller or directly to Trend Micro, as the case may be, the applicable fees for access ,to and/or use of Cloud Service in accordance with the Service Capacity that is purchased by Company.
Invoicing and collection of the fees and any,applicableTaxes willbebyitsReseller ordirectlybyTrendMicro,asthecasemaybe.ExceptasmaybeexpresslysetforthinSections7and 10, ,the fees Company pays for access to and use of Cloud Service are nonrefundable or otherwise subject to credit or offset.
Trend Micro reserves the ,right to change or modify published fees for Cloud Services that are purchased directly from Trend Micro in a manner and at such times as Trend,Micro shall determine in itsdiscretion.,3.5Taxes–DirectOrders.ThefeesandotherchargesinanOrderplaceddirectlywithTrendMicrodonotincludeforeignand ,domestic national, federal, dominion, provincial, state, municipal, or local sales, use, VAT, GST/GSM, excise, service, or similar transactional ,taxes (collectively “Taxes”) now or hereafter levied under Applicable Laws.
Where applicable on direct Orders, Company will provide Trend ,Micro all required information for the calculation, invoicing,and remittance of all applicable Taxes that Trend Micro reasonably requests to ,determinewhetherTrendMicroisobligatedtocollectandremitanyTaxesfromCompany,includingCompany’scorrectname,location,andsales ,tax or VAT/GST/GSM identification number where applicable.
If Company is legally entitled to an exemption from the collection and remittance ,of any otherwise applicable Taxes, Company is responsible for providing Trend Micro with legally-sufficient tax exemption certificates for each ,taxingjurisdiction.Otherwise,Companywillbeinvoicedfor,andpay,allTaxesasrequiredtobecollectedbyTrendMicrounderApplicableLaw.,3.6Compliance.
Audit.
Trend Micro may request, and Company will provide within thirty (30) days from the request date, a ,system-generated report verifying Company’s access to and use of the Cloud Services, if and only if, a Cloud Service purchased hereunder is ,programmedwiththetechnologicalfeaturestoprovidesuchaccessanduseverification(includingServiceCapacitywhereapplicable).Inanyevent, ,Trend Micro has the right, at its expense, to audit Company's compliance with these Terms of Service, and Company will provide all records and ,informationreasonablynecessaryforTrendMicrotosuccessfullyperformsuchaudit.IfanyauditrevealsthatCompanyowesfeestoTrendMicro, ,or its Reseller, Company will promptly remit such underpaid amounts.
Company consents to Trend Micro’s disclosure of such audit results to the ,Reseller.,4.Company Data.
OptionalFeatures.
Personal Data Protection.
GDPR DataProcessing.,4.1Responsibility for Company Data.
Right to Use Company Data.
OptionalFeatures.,4.1.1Responsibility for Company Data.
Company is solely responsible for the content of all Company Data and represents to,Trend Micro (on an ongoing basis) and agrees to the extent required by Applicable Law or any agreement of Company with a third party, that ,Companywill:(a)withrespecttoallCompanyData,provideallnoticesto,andprocureandmaintainallnecessaryrights,consents,andapprovals.
,and (b) take any and all other actions as may be required, to ensure the lawfulness of Company's access to and/or use of each CloudService (and ,applicable Support Services), including without limitation its transmission or making available of Company Data (some of which may include ,Personal Data) to Trend Micro and Trend Micro's receipt and use of such Company Data in that connection, without Company in any such case ,violating any Applicable Laws or the rights of any third party or otherwise obligating Trend Micro to any third party.
Trend Micro does not and ,willnotassumeanyobligationstoCompanywithrespecttoCompanyDataorCompany’suseofCloudServiceotherthanasmaybeexpresslyset ,forth in these Terms of Service including in relation to its provision of SupportServices.,4.1.2Right to Use Company Data.
Company hereby grants Trend Micro a limited, non-exclusive, royalty-free, paid-up, license ,toaccessand useCompanyData(unlessandonlytotheextentCompanyopts-outofsuchusesthroughCompany’sConfiguration):(a)asnecessary ,for Trend Micro to provide each Cloud Service and provide Support Services to Company.
(b) to maintain and improve the operation, security ,efficacy, and functionality of Trend Micro’s software and services including Cloud Services.
(c) to identify and collect information on potential ,securityrisksandURLsassociatedwithwebsites,executablefiles,orcontentidentifiedaspotentialmalwarevectorsinordertocontinuallyprovide ,Cloud ServicesandtoimproveTrend Micro’ssubject-matterdatabases;(d)foradministrationoftheseTermsofServiceandeachCloud Service;,(e) to comply with its legal obligations and exercise its rights under Applicable Laws.
and (f) for other purposes set forth in the these Terms of ,Service and/or Trend Micro’s Global Privacy Notice.,4.1.3Company’sConfiguration.CompanyacknowledgesandagreesthataCloudServicemaycontaincertainOptionalFeatures.
,Company is solely responsible for selecting (during activation/initial deployment and at all times thereafter) and maintaining Company’s ,Configuration of each Cloud Service and assuring that Company’s Configuration conforms to Company’s requirements, policies, and procedures ,regardinganyprocessingofCompanyData(includinganyGDPRDataand/orotherPersonalData)andcomplieswithall ApplicableLawsineach ,jurisdiction to which Company's processing of any Company Data in connection with its use of any Cloud Service may be subject(including any ,GDPR Data and/or Personal Data) and/or from which Company is accessing and utilizing an Optional Feature.
At the initial activation and ,deployment of each Cloud Service and at any time thereafter, Company agrees to: (a) review the capabilities, features, and functionality of the ,OptionalFeaturesandallotherfeaturesandfunctionalityintheServiceDescriptionthereof;and(b)activate,configure,restrict,limit,and/ordisable ,each Optional Feature as may be described in the Service Description in order to cause Company Data to be processed in a manner that meets ,Company’s specific needs (each Cloud Service as configured by or on behalf Company from time-to-time is herein referred to as “Company’s ,Configuration”).
Except for Optional Features and permissions and administrative selections described in the Service Description, Company ,understands that each Cloud Service is a standardized service hosted by or on behalf of Trend Micro and no additional or different instructions or ,configurations are available to Company for such CloudService.,4.2Personal Data Protection.
A Cloud Service and/or Support Services may employ applications and tools that receive ,Company Data that includes one or more data elements that are Personal Data under Applicable Laws.
Inaccordance with the instructions made ,knownthroughCompany’sConfigurationandtheseTermsofService,TrendMicromayaccess,receive,process,copy,backup,store,transferand ,usePersonalDatawhichmaytakeplacein,fromandtotheUnitedStatesofAmerica,Europe,orothercountriesorjurisdictions,potentiallyoutside ,of the country of residence of Company, its Affiliates, and/or its and their End Users.
Trend Micro has and will continue to implement technical, ,organizational and administrative security measures in order to protect the Personal Data provided to and utilized in connection with each Cloud ,Service from unauthorized access and misuse while under Trend Micro’s custody or control, including when Trend Micro utilizesany thirdparty,subcontractors.
Trend Micro restricts its personnel from accessing and/or utilizing Personal Data without authorization and imposes appropriate ,obligations upon its personnel regarding Personal Data protection.,4.3GDPR Data Processing.
Relationship of the Parties.
By agreeing to these Terms of Service, each of Company and Trend ,Micro acknowledges and agrees that it is also entering into and agreeing to be bound by: (a) the Data Processing Addendum.
and (b) the Standard ,Contractual Clauses, it being further agreed that each of the Addendum and Clauses shall only apply, if and to the extent that Trend Micro acts as ,a processor or subprocessor for any GDPR Data (but does not apply to otherCompany Data/Personal Data) that Company (and its Affiliates that ,have been authorized to access and/or utilize Cloud Services hereunder) provides or makes available to Trend Micro hereunder.With respect to ,each Affiliate of Company that accesses or utilizes any Cloud Service as permitted herein, Company hereby enters into and agrees to be bound by ,the Data Processing Addendum and the Standard Contractual Clauses for itself and on behalf of each such Affiliate, and Company represents and ,warrants to Trend Micro that Company is duly authorized, and Company and all such Affiliates have each taken, all necessary action to do so,validly.,5.Support Services.
Updates to EnablingSoftware.,5.1Support Services.
Trend Micro will provide Support Services for each Cloud Service to Company in connection herewith ,on the terms, conditions, and descriptions set forth in the Support Services terms posted athttps://success.trendmicro.com/technical-support, as ,modified from time to time, subject to the conditions stated in such Support Service Description (the “Support Services”).
Service Level Targets ,forSupportServicesmaybefoundatwww.trendmicro.com/severitydefinitions,whichServiceLevelTargetsmayberevisedbyTrendMicroatits ,discretion from time-to-time.
Except for the Support Services, these Terms of Service do not require Trend Micro to provide Company with any ,configuration, deployment, training, consulting services, or other technical assistance of any kind.
Each CloudService is periodically monitored by,TrendMicrobasedonitsServiceLevelTargetsandadjustmentsaremadebyTrendMicroasneeded.,5.2UpdatestoEnablingSoftware.Atitssolediscretion,TrendMicromayprovideperiodicupdatestotheEnablingSoftware, ,if any.
If available, such updates may include bug fixes, new features and/or enhancements.
Company is solely responsible for deploying such ,updates at Company’s own cost as soon as possible.
Trend Micro’s obligation to provide Support Services with respect to Enabling Software as ,wellasaCloudServicecontinuingtomeetitsServiceDescriptionandtheseTermsofServicedependsuponCompany’spromptinstallationofany ,and all such updates to Enabling Software that Trend Micro makes available toCompany.,6.Confidentiality;Feedback.,6.1Confidentiality/Non-Disclosure.
Each Party hereto acknowledges that by reason of its relationship with the other Party ,hereunder, it may have access to confidential information and materials concerning the other Party’s business, technology, and/or products that is ,confidentialtotheother Party(“ConfidentialInformation”).WrittenorothertangibleConfidentialInformationmustatthetimeofdisclosurebe ,identified and labeled as Confidential Information belonging to the disclosing Party.
When disclosed orally or visually, Confidential Information ,must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within fifteen (15)days after disclosure.
,EachPartyagreesthatitwillnotusesuchConfidentialInformation,exceptasauthorizedundertheseTermsofService,andwillprotectConfidential ,Information at least to the same extent as a reasonable person would undertake to protect such Confidential Information.
Neither Party may use the ,other Party’s Confidential Information except to perform its duties or exercise its rights under these Terms of Service.
The Confidential Information ,restrictions will not apply to information or data that is: (a) already known to the receiving Party at the time of access hereunder.
(b) becomes ,publicly available through no wrongful act of the receiving Party.
(c) independently developed by the receiving Party without benefit of the ,disclosing Party’s Confidential Information.
(d) has been rightfully received from a third party not under obligation of confidentiality.
(e) disclosed ,in any legal proceeding arising from or in connection with these Terms of Service.
or (f) is required to be disclosed by law, provided the Party ,compelled to disclose the Confidential Information provides the Party owning the Confidential Information with prior written notice of disclosure ,(only if legally permissible) adequate for the owning Party to take reasonable action to prevent suchdisclosure.
Unless otherwise agreed to by both ,Parties, upon termination of these Terms of Service, each Party will return to, or irretrievably destroy, the other Party’s ConfidentialInformationin,itspossession.IntheeventthatthePartiesheretohavepreviouslyenteredintoanon-disclosureorconfidentiality agreement that is still in ,effect on the Effective Date of these Terms of Service, then the Parties hereto agree that such prior agreement is hereby merged into and ,superseded by these Terms of Service ONLY with respect to the subject matter hereof and the transactions undertaken pursuanthereto.,6.2Feedback.
Notwithstanding anything to the contrary: (a) Trend Micro will have no obligation of any kind to any person with ,respect to any Cloud Service-related comments, suggestions, design changes or improvements, that Company may elect to provide to Trend Micro ,in either verbal or written form (collectively, “Cloud Service Feedback”), and (b) Trend Micro and its Affiliates and licensors are hereby granted ,by Company a perpetual, irrevocable, royalty-free right and license to use any ideas, concepts, know-how or techniques, in whole or in part, ,contained in Cloud Service Feedback provided now or in the future: (i) for any purpose whatsoever, including developing, making derivative works, ,manufacturing, improving, enhancing, making, having made, distributing, and/or marketing Trend Micro products and/or servicesincorporating,CloudServiceFeedbackinwholeorinpart,and(ii)whichrightandlicenseisgrantedwithoutanyrestrictionsorlimitations,including requiring the ,payment of any license fees, royalties, or otherconsideration.,7.Limited Warranty and Exclusive Remedy.
Disclaimer of All Other Conditions, Guarantees, andWarranties.,7.1Limited Warranty and Exclusive Remedy.
In connection with a Cloud Service, Trend Micro warrants only to Company ,that such Cloud Service will substantially conform to its then-current Service Description under normal use and circumstances until the expiration ,or termination of Company’s paid right to access and use such Cloud Service under these Terms of Service.
The foregoing limited warranty does ,not cover events or circumstances caused by accident, abuse or use of Cloud Service in a manner inconsistent with these Terms of Service, the ,Service Description, or other guidance provided by Trend Micro or resulting from events of Force Majeure.
If it is established that Trend Micro has ,breached the above warranty after notice from Company as required below, Trend Micro may, at its option: (a) use reasonable efforts to cure the,breach;or(b)intheeventTrendMicrocannot,aftercommerciallypracticableattemptstodoso,achievetheremedyin(a)immediatelyabove, either ,Trend Micro or Company may terminate theseTerms of Service and Trend Micro will provide a refund (within thirty (30) days) ofunused,fees pre-paid by Company, if any, as of the effective date of such termination.
To benefit from this warranty and the remedies stated herein, ,Company mustreport in writing to Trend Micro, the alleged breach of warranty with reasonable specificity within ten (10) days of its occurrence.
,TheaboveremediesforbreachoftheforegoingwarrantyareTrendMicro'ssoleandexclusiveobligationandliabilitytoCompanyandCompany's ,sole and exclusive right and remedy for Trend Micro’s breach of the foregoing warranty notwithstanding any other provision ofthese Terms of ,Service to thecontrary.,7.2DisclaimerofAllOtherConditions,Guarantees,andWarranties.EXCEPTASSETFORTHINSECTION7.1,CLOUD ,SERVICES AND SUPPORT SERVICES ARE PROVIDED “AS IS, WITH ALL FAULTS” AND “AS AVAILABLE” AND WITHOUT ANY ,OTHER WARRANTY, CONDITION, UNDERTAKING, OR GUARANTEE OF ANY KIND OR NATURE.
TREND MICRO (ON BEHALF ,OF ITSELF AND ITS AFFILIATES/SUPPLIERS/LICENSORS/RESELLERS) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, ,GUARANTEES, CONDITIONS, UNDERTAKINGS, OR WARRANTIES OF ANY KIND (WHETHER EXPRESS, IMPLIED, STATUTORY ,OR OTHERWISE) ARISING FROM OR RELATED TO A STATUTE, CIVIL/COMMERCIALCODE, CUSTOM, USAGE OR TRADE ,PRACTICE, COURSE OF DEALING OR PERFORMANCE, OR THE PARTIES' CONDUCT OR COMMUNICATIONS WITH ONE ,ANOTHER, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AND/OR CONDITION OF: ,MERCHANTABILITY.
FITNESS FOR A PARTICULAR (SUCH AS A HIGH-RISK ENVIRONMENT) OR GENERAL PURPOSE.
TITLE.
,SATISFACTORY QUALITY.
ACCURACY.
NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
OR ,ABILITYTOACHIEVEAPARTICULARRESULT.FURTHER,TRENDMICRODOESNOTREPRESENT,WARRANT,ORGUARANTEE ,THAT:(A)ACLOUDSERVICEWILLBECONTINUOUSLYAVAILABLEORUSETHEREOFUNINTERRUPTED;(B)THEFUNCTIONS ,AND FEATURES CONTAINED IN A CLOUD SERVICE WILL MEET THE REQUIREMENTS OF COMPANY OR THAT A CLOUD ,SERVICE WILL SATISFY ANY PARTICULAR BUSINESS, TECHNOLOGICAL, SERVICE, SECURITY, OR OTHER NEEDS OR ,REQUIREMENTS (SUCH AS USE IN A HIGH-RISK ENVIROMENT) OF COMPANY.
( C ) USE OF A CLOUD SERVICE WILL PROVIDE ,COMPLETEANDABSOLUTEPROTECTIONOFCOMPANY’SSYSTEMS,NETWORKS,DEVICES,ASSETS,INFORMATION,AND/OR ,DATA FROM AND AGAINST ANY OR ALL CYBERTHREAT DATA OR OTHER POSSIBLE RISKS.
(D) USE OF A CLOUD SERVICE ,WILL DETECT, IDENTIFY, BLOCK, REMOVE, REMEDIATE, OR RESOLVE SOME, ANY, OR ALL CYBERTHREAT DATA.
(E) A ,CLOUDSERVICEWILLBEPROVIDEDORPERFORMEDERROR-FREEORTHATTRENDMICROWILLCORRECTALLERRORSIN ,CLOUDSERVICES;OR(F)ACLOUDSERVICEWILLOPERATEINCOMBINATIONWITHCOMPANYDATA,ORWITHANYOTHER ,HARDWARE, SOFTWARE, SYSTEMS, CLOUD SERVICES, OR DATA NOT PROVIDED OR REQUIRED BY TRENDMICRO.,8.Exclusions From and Limitation of Liability.
MaximumLiability.,8.1Exclusions From and Limitation of Liability.
IN NO EVENT OR CIRCUMSTANCE WILL TREND MICRO (OR ITS ,AFFILIATES, LICENSORS, OR SUPPLIERS) BE LIABLE TO COMPANY OR ITS AFFILIATES FOR ANY EXCLUDED DAMAGES ,ARISING FROM OR RELATING TO THESE TERMS OF SERVICE, TREND MICRO’S (OR ITS AFFILIATES) PERFORMANCE UNDER ,THESE TERMS OF SERVICE, OR ANY CLOUD SERVICE/SUPPORT SERVICE, WHETHER OR NOT FORESEEABLE, EVEN IF THE ,EXCLUSIVE REMEDIES PROVIDED BY THESE TERMS OF SERVICE FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF TREND ,MICROAND/OR ITSAFFILIATESMAYHAVEBEENADVISEDOFTHEPOSSIBILITYORPROBABILITYOFSUCHDAMAGESAND ,REGARDLESS OF THE NATURE OF THE CLAIM OR CAUSE OF ACTION OR THEORY ASSERTED INCLUDING, WITHOUT ,LIMITATION.
BREACH OF CONTRACT.
STRICT LIABILITY.
MISREPRESENTATION.
UNDER ANY ,EXPRESS/IMPLIED/STATUTORY WARRANTY, GUARANTEE, DUTY, OR CONDITION.
UNDER ANY STATUTE OR ,CIVIL/COMMERCIAL CODE.
IN TORT (INCLUDING NEGLIGENCE).
OR ANY OTHER LEGAL, IMPLIED, STATUTORY, OR ,EQUITABLE THEORY.
THE PARTIES AGREE THAT NONE OF THE EXCLUDED DAMAGES REFERENCED IN THIS SECTION 8.1 ,ARE ACTUAL DIRECT DAMAGES AS REFERENCED IN SECTION8.2.,IF COMPANY IS IN THE EUROPEAN ECONOMIC AREA, REFERENCES TO “EXCLUDED DAMAGES” SHALL ALSO MEAN ANY ,LOSSES OR DAMAGES WHICH: (A) WERE NOT REASONABLY FORESEEABLE BY BOTH PARTIES.
(B) WERE KNOWN TO ,COMPANYBUTNOTTOTRENDMICRO;AND/OR( C )WEREREASONABLYFORESEEABLEBYBOTHPARTIESBUTCOULDHAVE ,BEENPREVENTEDBYCOMPANYSUCHAS,FOREXAMPLE,LOSSESCAUSEDBYVIRUSES,MALWARE,OROTHERMALICIOUS ,PROGRAMS, OR LOSS OF OR DAMAGE TO COMPANY DATA OR COMPANY’S FAILURE TO PROPERLY BACK-UP SUCH ,COMPANYDATA.,8.2Maximum Liability –Actual Direct Damages.
THE LIABILITY OF TREND MICRO, ITS AFFILIATES, AND ITS ,THEIR SUPPLIERS (INCLUDING ANY HOSTING PLATFORM) AND LICENSORS TO COMPANY FOR LOSSES, EXPENSES, OR ,DAMAGES RELATED TO OR ARISING FROM ALL RELATED AND UNRELATED CAUSES OF ACTION, CLAIMS, SUITS, AND,OTHER LEGAL PROCEEDINGS OF ANY KIND OR NATURE (REGARDLESS OF WHETHER BASED ON ,EXPRESS/IMPLIED/STATUTORY WARRANTY, GUARANTEE, CONDITION, MISREPRESENTATION, CONTRACT AND BREACH ,THEREOF, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), UNDER ANY CIVIL/COMMERCIAL CODE, AND/OR ANY ,OTHER OR EQUITABLE OR LEGAL THEORY) THAT ARE ACTS OR OMISSIONS OF TREND MICRO SPECIFICALLY ,ATTRIBUTABLE TO: (A) AN UNCURED MATERIAL BREACH OF THESE TERMS OF SERVICE.
(B) THE RELATIONSHIP OF ,PARTIES.
AND/OR ( C ) THE PROVISION/SUPPLY OF CLOUD SERVICES AND/OR SUPPORT SERVICES, SHALL BE LIMITED TO ,ACTUAL DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED, IN THE AGGREGATE (AND NOT PER INCIDENT OR PER ,CLAIMANT) FOR ALL CLAIMS AND CAUSES OF ACTION, THE TOTAL FEES AND OTHER AMOUNTS PAID BY COMPANY FOR ,THECLOUDSERVICEGIVINGRISETOORCAUSINGSUCHLOSS,EXPENSE,ORDAMAGEINTHETWELVE(12)MONTHPERIOD ,IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO SUCH LOSS, EXPENSE, OR DAMAGE, LESS ANY REFUNDS OR ,CREDITS PREVIOUSLY RECEIVED BY COMPANY FROM TRENDMICRO WITH RESPECTTHERETO.,8.3Basis of the Bargain.
Each Party recognizes and agrees that the waivers, warranty limitations, as well as disclaimers ,andexclusionsfromandlimitationsofliabilityand/orremediesintheseTermsofServiceareamaterialandessentialbasisoftheseTerms,of Service.
reflect a reasonable allocation of risk between the Parties.
are fair, reasonable, and a fundamental part of these Terms of ,Service;andeachhasbeentakenintoaccountandreflectedindeterminingtheconsiderationtobegivenbyeachPartyundertheseTerms ,of Service and in the decision by each Party to enter into these Terms of Service.
The Parties acknowledge and agree that absent any of ,such waivers, disclaimers, exclusions, and/or limitations of liability/remedies, the provisions of these Terms of Service, including the ,economicterms,wouldbe substantiallydifferent,orinthealternative, theseTermsof Servicewouldnothavebeenconsummated.,9.Term andTermination.,9.1Term.
These Terms of Service and Company’s access to Cloud Service will become effective as of the date of issuance of a ,Certificate to Company by Trend Micro and such Cloud Service is made available to the Company by Trend Micro and shall continue in effect ,thereafter as set forth in the applicable Certificate and these Terms of Service until such outstanding Subscription Period for a Cloud Service,purchased hereunder is completed (the “Term”), unless earlier terminated or suspended in accordance with this Section and/or theseTerms of ,Service.,9.2Suspension and Termination by Trend Micro.
Trend Micro may suspend or terminate Company’s right to use Cloud ,Service (in whole or in part) at any time upon written notice if Trend Micro determines that: (a) Company or one or more of itsAffiliates, ,Contractors, or End Users of Cloud Service (i) poses a security risk to Cloud Service or any third party, (ii) may adversely impact Cloud Service or ,any third party, (iii) is in non-compliance in any way with Section 2.8, or (iv) may subject Trend Micro, its Affiliates, its licensors, or any third ,party to liability.
or (b) Company is in material breach of these Terms of Service, including a breach of or non-compliance by Company with any ,of its agreements in Sections 2.1 or 4.1.
Company will cease use of Cloud Service identified in such notice(s) during any period of suspension, or ,upon termination of these Terms of Service or other termination of Company’s right to use such Cloud Service.
For any termination or suspension ,by Trend Micro in accordance with the foregoing, Trend Micro will not provide, or be liable for, any refund or proration offees.,9.3Termination by Company.
Company may terminate for its convenience, these Terms of Service and/or Company’s use of ,aCloud Serviceat anytimewithwritten noticetoTrendMicro,in whicheventCompanywillNOTbeentitledtoarefundorcreditofunused fees ,(if any) pre-paid by Company for access to and use of such Cloud Service (s).
Notwithstanding the foregoing, only if Company is entitled to ,terminate these Terms of Service for a material breach by Trend Micro (after giving Trend Micro at least twenty (20) days prior detailed written ,noticeandan opportunitytocuresuchmaterialbreachduringsuchnoticeperiod)oftheseTermsofService,Companywillbeentitled toreceivea ,refund from Trend Micro of the applicable unused fees (if any) pre-paid by Company for access to CloudService.,9.4Company’sTerminationDuties.UponexpirationorterminationoftheseTermsofServiceand/orCompany’suseofCloud ,Service for any reason or no reason, Company will: (a) cease any access and use of Cloud Service.
and (b) irretrievably destroy all copies in ,Company’s possession or control of the Enabling Software, including any Service Description provided by Trend Micro.
Upon request, Company ,will certify in writing that the foregoing has occurred.
Termination does not relieve Company from Company’s obligation to pay fees and Taxes ,that remainunpaid.,9.5Survival.UponterminationorexpirationoftheseTermsofServiceandregardlessofreasontherefor,thefollowingSections ,shallsurvivesuchterminationorexpiration:Sections1,2.2,2.3,2.4,2.5,2.8,2.9,2.10,2.11,3,4,6,7,8,9,10,11,and12andanyotherprovision ,that expressly states that its terms and conditions shall survive the expiration or termination of these Terms ofService.,10.Intellectual PropertyIndemnity.,10.1IP Claim Indemnity.
Trend Micro (at its cost) will defend ONLY Company from each IP Claim and indemnify Company ,fromtheresultingcostsanddamageswith respecttoeachsuchIPClaimfinallyawardedagainstCompanyONLYthatarespecificallyattributable ,to such IP Claim or those amounts agreed to by Trend Micro in a monetary settlement of such IP Claim, subject always to the conditions, ,qualifications and limitations in this Section 10.
No settlement of any IP Claim will be made by Company (and Trend Micro will have no ,responsibilityorobligationhereunderorotherwisetherefor)withoutTrendMicro’sexpresswrittenconsent,whichmaybewithheldatitssoleand ,absolute discretion.
The obligation of Trend Micro under this Section 10 for any IP Claim is subject to and conditioned on Company giving Trend ,Micro: (a) prompt written notice of any IP Claim (but in any event notice in sufficient time for Trend Micro to respond without prejudice to its ,position), provided that a failure to provide notice shall only relieve Trend Micro of its indemnity obligation to the extentTrend Micro was ,prejudiced by such failure.
(b) sole and completecontrol and authority over the defense, negotiations, and settlement of such IP Claim.
and (c) ,reasonable requested information, cooperation and assistance, at Trend Micro’s expense, with regard to the defense, negotiations, or settlement of ,such IP Claim.
Without Company’s consent, Trend Micro will not settle with respect to Company, any IP Claim to the extent such settlement ,requires that Company admit any liability on the part of Company with respect to such IP Claim or pay any money therefor.
Company may ,participate in the defense of any IP Claim at its cost with counsel of its selection.
This indemnity is personal to Company and may not be ,assigned/transferred (in whole or in party) or otherwise passed through to any thirdparty.,10.2IP Claim Mitigation.
Should a Cloud Service at any time become, or in Trend Micro’s opinion be likely to become, the ,subject of an IP Claim, Trend Micro shall have the right, at its sole option to: (a) procure for Company the right to continue using such Cloud ,Service as provided hereunder, or (b) modify such Cloud Service so that it no longer is the subject of an IP Claim, while maintaining substantially ,the same utility or functionality of the unmodified utility or functionality.
If neither (a) or (b) are commercially practicable in Trend Micro’s opinion, ,Trend Micro may terminate these Terms of Service as to such Cloud Service and any related the rights granted hereunder to access and utilize the ,Cloud Service upon written notice, in which event Company will cease further use of the Cloud Service and return or uninstall and irrevocably ,destroy all copies of any Enabling Software (and its documentation) and, thereafter, Trend Micro will promptly refund to Company any unused, ,prepaid fees Company may have paid for such Cloud Service.
The Parties agree that any termination hereof in accordance with this Section 10 shall ,not be treated as a breach of these Terms of Service by Trend Micro and shall not entitle Company to any claim for damages, losses, or expenses ,of any kind or nature arising from or related to such termination including for replacement cost or loss of use of the Cloud Service or any lost ,profits, savings, or revenue arising from or related to the Cloud Service.
This Section 10 states Trend Micro’s sole and exclusiveobligationand,liabilitytoCompany,andCompany’ssoleandexclusiverightandremedyagainstTrendMicro,foranyIPClaim.
Except as set forth herein ,this Section 10, Company acknowledges and agrees that no indemnity is given by Trend Micro with respectto any Cloud Service and Trend ,Micro specifically denies and disclaims any obligation to indemnify company and/or its affiliates fromand,againstanyothermatterorthinginanyeventorcircumstance.Notwithstandinganythingcontainedhereintothecontrary,TrendMicro’s ,liability shall not be limited by Section 8to the extent of monies payable by Trend Micro by operation of this Section10.,11.GeneralProvisions.,11.1Assignment, Delegation.
Sublicensing.
Subcontracting Company will not assign (in whole or in part) these Terms of ,Service, or delegate or sublicense any of Company’s rights under these Terms of Service, without Trend Micro’s prior written consent.
Any ,purported assignment or transfer in violation of this Section 11.1 will be void.
Inits sole discretion and without notice to Company, the Parties ,agreethatTrendMicromayassigntheseTermsofServicetoanyTrendMicroAffiliate,ordelegateorsublicensetheperformanceofTrendMicro’s ,obligations to any Trend Micro Affiliate or toany subcontractor provided that Trend Micro shall remain responsible for the performance of such ,obligations by such persons as though such persons were Trend Micro.
Subject to the foregoing, these Terms of Service will bebinding upon, and ,inure to the benefit of the parties and their respective successors andassigns.,11.2Interpretation.
The headings within these Terms of Service are for convenience only and will not affect the interpretation ,of these Terms of Service.
The words “include”, “includes”, and “including” shall be interpreted as introducing a list of examples which do not ,limit the generality of any preceding words or any words in the list ofexamples.,11.3No Waivers.
The failure by either Party to enforce any provision of these Terms of Service will not constitute a present or ,futurewaiverofsuchprovisionnorlimitourrighttoenforcesuchprovisionatalatertime.Tobeeffective,allwaiversmustbeinwriting,specifying ,the provision and actions or inactions being waived, and signed by theParties.,11.4Export/Import Control.
In connection with these Terms of Service, the access, use, export or re-export of Cloud Service ,andrelatedtechnicaldataandservices(collectively"ControlledTechnology")issubjecttoApplicableLawswithrespecttotheexport(including ,“deemedexport”and“deemedre-export”regulations)andimportofControlledTechnologybyCompany,itsAffiliates,Contractors,and/oritsEnd ,Users.
In connection therewith, Company acknowledges that each Cloud Service is designed with capabilities to permit (at its and their discretion) ,Company, its Affiliates, Contractors, and/or its End Users to access the Cloud Service without regard to geographic location and to transfer or ,otherwise move Company Data between the CloudService, its Affiliates, Contractors, and/or its End Users/Contractors anywhere in the world.
,CompanyacknowledgesandagreesthatitissolelyresponsiblefortheauthorizationandmanagementofEndUseraccounts,aswellasexport/import ,control and geographic transfer of Company Data in connection with the Cloud Service.
Company agrees that it will at all times comply with each ,Applicable Law (now or hereafter in effect) that applies to direct/indirect export, re-export, or import of Controlled Technology by Company, its ,Affiliates, and its and their Contractors, and/or its End Users and/or the performance of Company, its Affiliates, its or their Contractors, and/or its ,EndUsershereunderthat:(a)requiresalicenseto,orotherwiseprohibitsthe,export,re-export,import,diversion,ordisclosureofsuchControlled ,Technology;(b)prohibitsorrestrictssale,use,oraccesstocertaintechnology/goods/services,tospecifiedcountries,and/orbydefinedpersons;or,(c) restricts or prohibits end-use of such Controlled Technology related to the development, production, use, or proliferation of nuclear, chemical ,or biological weapons, missiles, or other weapons of mass destruction.
Company represents and warrants to Trend Micro that neither Company, its,Affiliates,itsContractors,noranyofitsEndUsersareunderthecontrolof,locatedin,oraresidentornationalofanycountryorregion subject to ,any embargo or applicable trade sanction and are not a prohibited person or prohibited entityas defined in any ApplicableLaw.,11.5GovernmentAgencyUse.EachCloudService(includinganycomponentsoftware)andaccompanyingServiceDescription ,have been developed solely at private expense by Trend Micro and/or its suppliers/licensors, consisting of commercially-available items, ,commercially-available computer software, commercially-available hardware, technical documentation, and/or commercially-available Service ,Description with the same rights and restrictions generally applicable to Cloud Service.
Access and use of Cloud Service by any Government ,Agency may be subject to mandatory applicable laws.
provided, however, except for the limited right to access and use Cloud Service granted in,Sections 2.1above, no right, title, or interest in or to any software, hardware, binary code, or service (or updates and documentation) is granted or ,transferred hereunder to any Government Agency accessing and/or using Cloud Service.
If any Government Agency requires or needs greater or ,different rights in or to access and/or use Cloud Service other than those rights that are granted in these Terms of Service,the Parties will discuss ,suchadditionalrequirementsandtheadditionalfees/chargesapplicablethereto,andifadditionalordifferentrightsareagreed,thepartieswillenter ,intoaspecificwrittenagreementwithrespectthereto.InthisSection11.5,“GovernmentAgency”shallmeananational,federal,provincial,state, ,municipal,and/orlocalagencyorentitythatOrdersthroughaResellerfortherighttoaccess/useaCloud ServiceundertheseTermsofService.,11.6Notices.,11.6.1If to Company.
Trend Micro may provide any notice to Company under these Terms of Service: (a) if a legal notice, by ,sending a message to the email address then associated with Company’s Account, if any.
and (b) if product or support notices, by posting a notice ,onhttps://success.trendmicro.com/TechnicalSupport(the “Trend Micro Site”).
Product or support noticesposted on the Trend Micro Site will be ,effective upon posting and legal noticesthat Trend Micro provides by email will be effective when Trend Micro sends the email.
It is Company’s ,responsibility to keep Company’s email addresscurrent.,11.6.2IftoTrendMicro.TogiveTrendMicrolegalnoticeundertheseTermsofService,CompanymustcontactTrendMicroby ,emailtolegal_notice@trendmicro.com.TrendMicromayupdatetheemailfornoticesbypostinganoticeontheTrendMicroSite.Noticesprovided ,by email will be effective one (1) business day after they are sent.Notices regarding Support Services will be sent in accordance with Section 5.1,and notices or Orders regarding new or additional Cloud Services should be directed to the appropriate Reseller or Trend Micro’s sales executive, ,as the case maybe.,11.7Severability;Enforcement.ThePartiesagreethattheunenforceabilityorinvalidityofanytermorprovisionoftheseTerms ,ofServiceshallnotimpairtheenforceabilityorvalidityofanyotherpartoftheseTermsofService.Intheeventthatanytermorprovisionofthese ,Terms of Service conflicts with the governing law under which these Terms of Service is to be construed or if any such term or provision is held ,invalidorunenforceableinwholeorin partbyacourtwithjurisdictionoverthePartiesorinanyarbitrationconvenedhereunder,thePartiesagree ,that the court or arbitrator(s) (as the case may be) making such determination shall have the power, and the Parties hereby request that such court ,orarbitrator(s)exercisesuchpower,tomodify,amend,orrestateanysuchunenforceabletermorprovisionoftheseTermsofServiceinlieuof,severing such unenforceable term or provision in its entirety, whether by rewriting the offending term or provision, deletingany or all of the ,offending term or provision, adding additional language to these Terms of Service, or by making such other modifications as it deems appropriate ,thatisvalidandenforceableandthatcomesclosesttoexpressingtheoriginalintentionofthePartiestothegreatestlawfulextentundertheseTerms ,ofService.,11.8Excused Performance Events.
Trend Micro shall not be liable for any delay or failure to perform its obligations hereunder ,duetoanyExcusedPerformanceEvent.TrendMicrowill(a)takecommerciallyreasonablestepstominimizeand/ormitigateanydelaysorfailures ,relatedtoanyExcusedPerformanceEvent,and(b)providepromptwrittennoticeofthenatureofsuchExcusedPerformanceEventandtheexpected ,duration thereof to Company, but this Section does not excuse Trend Micro’s obligation to take reasonable steps to follow its normal disaster ,recoveryprocedures.TrendMicrowillresumeperformingitsaffectedobligationspromptlyfollowingtheremovalorreasonablecircumventionof ,such Excused Performance Event.
The Parties agree that any delay or failure arising from or related to a Excused Performance Event shall not ,constitute a breach of these Terms of Service by TrendMicro.,11.9Independent Contractors.
Nothing in these Terms of Service is intended or shall be construed to create or establish any ,agency, partnership, or joint venture relationship between the Parties.
The Parties expressly disclaim such relationship, agree that they are acting ,solely as independent contractors hereunder, and agree that the Parties have no fiduciary duty to one another or any other special or implied duties ,that are not expressly stated herein.
Neither Party has any authority to act as agent for, or to incur any obligations on behalf of or in the name of, ,the other Party or itsAffiliates.,11.10ThirdPartyBeneficiaries.Alldisclaimers,limitationsofdamagesandremedies,andexclusionsandlimitationsofliabilities ,intheseTermsofServicethatareapplicabletoTrendMicroalsoextendtoandapplyinrespectof TrendMicro’sAffiliates,suppliers,andlicensors ,as third party beneficiaries.
Except as set forth in the immediately preceding sentence, these Terms of Service are entered into solely between and ,for the benefit of, and may be enforced only by, the Parties hereto and no third party shall have any right/benefit hereunder, whether arising ,hereunder, under any statute now or hereafter enacted (such as Contracts (Rights of Third Parties) Act of 1999 in the UK and similar laws enacted ,in Ireland, Singapore, New Zealand, Hong Kong S.A.R., and certain states of Australia, the application of each of which is hereby barred and ,disclaimed),orotherwise.ExceptassetforthinthefirstsentenceofthisSection,theseTermsofServicedonot,andshallnotbedeemedto,create ,any express or implied rights, remedies, benefits, claims, or causes of action (legal, equitable or otherwise) in or on behalf of any third parties ,including employees, independent consultants, agents, suppliers, and Affiliates of a Party, or otherwise create any obligation or duty to any third ,party.
provided, however, notwithstanding anything contained herein these Terms of Service to the contrary, Trend Micro’s Affiliates, licensors, ,and Resellers shall be intended third party beneficiaries for the exclusions, limitations, and disclaimers with respect to Cloud Services as stated in,Sections 2.8, 2.9, 7.2, and 8of these Terms ofService.,12.Trend Micro Licensing Entity.
Governing Law.
Dispute Resolution.
Arbitration;Venue/Jurisdiction.,12.1General.
Trend Micro Licensing Entity.
The Parties agree that the specific Trend Micro entity that is the Party to these ,Terms of Service for each individual transaction shall be the Trend Micro entity/Affiliate that is stipulated belowand such entity shall be ,conclusively be deemed for all purposes, to be the Trend Micro Party to these Terms of Service and to the Data Processing Addendum, and the ,publisher/licensor of Software, supplier of Appliances, and/or provider of Support Services, that is procured by Company hereunder (in each ,instance, the “Licensing Entity”).
The Parties agree that the governing law (without giving effect to its rules and principles relating to conflict of ,laws)asdetermineandagreed inthisSection12shallsolelyandexclusivelyapplytoandgovern,interpret,and setsforthallofTrendMicro’sand ,Company’s respective rights, duties, and obligations arising from, or relating in any manner to, the subject matter of these Terms of Service and ,the Cloud Services provided/secured hereunder.
The United Nations Convention on Contracts for the International Sale of Goods does not apply ,to, and is specifically excluded from application hereto, in any event orcircumstance.,12.2North America: If Company is located (as evidenced by the Certificate) in the United States of America or Canada, the ,Licensing Entity of Cloud Service is stipulated as: Trend Micro Incorporated, 225 E.
John Carpenter Freeway, Suite 1500, Irving, TX 75062, ,USA.
The Parties agree thatthese Terms of Service is solely and exclusively governed by the laws of the State of New York, USA.
The Parties ,agree that the provisions of the Uniform Computer Information Transactions Act (“UCITA”), as it may have been or hereafter may be in effect in,any jurisdiction, shall not apply to these Terms of Service, and the Parties waive any and all rights they may have under anylaws(s) adopting ,UCITA in any form.
The Parties mutually agree to and do hereby irrevocably submit and consent to the sole and exclusive in personam jurisdiction ,of: (a) the United States District Court for the Southern District of New York, located in the County of New York, but if such court shall determine ,that it does not and cannot have subject matter jurisdiction over such action, matter, or proceeding.
then to, (b) the Supreme Court of the State of ,New York, located in the County of New York that will have such sole and exclusive in personam jurisdiction over such action, matter, or ,proceeding.
In Canada, the following language shall apply hereto: The Parties have required that these Terms of Service be drawn up in English ,and have also agreed that all notices or other documents required by or contemplated in these Terms of Service be written in English.
LesParties,ontrequisquecetteconventionsoitrédigéeenanglaisetontégalementconvenuquetoutavisouautredocumentexigéauxtermesdes présentes ou ,découlant de l'une quelconque de ses dispositions sera préparé enanglais.,12.3Central America and South America (except Brazil).
If Company is located (as evidenced by the Certificate) in Central ,America or South America (other than Brazil), the Licensing Entity of Cloud Services is stipulated as: Trend Micro Latinoamérica, S.
A.
de C.
V., ,Insurgentes Sur No.
813, Piso 11, Col.
Nápoles, 03810 México, D.
F.
The Parties agree that these Terms of Service are solely and exclusively ,governedbythefederallawsoftheRepublicofMexico.ThecourtslocatedinMexicoCity,FederalDistrict,shalleachhaveexclusivejurisdiction ,over all disputes arising out of or relating to these Terms of Service or its subjectmatter.,12.4Brazil.
If the Licensing Entity’s principal place of business is located (as evidenced by the Certificate) in Brazil, the ,Licensing Entity of Cloud Services is stipulated as: Trend Micro do Brasil, LTDA, Rua Joaquim Floriano, 1.120 –2º andar, CEP 04534-004, São ,Paulo/Capital, Brazil.
The Parties agree that these Terms of Service are solely and exclusively governed by the federal laws of Brazil.
The courts ,locatedinSãoPaulo,BrazilshalleachhaveexclusivejurisdictionoveralldisputesarisingoutoforrelatingtotheseTermsofServiceoritssubject ,matter.,12.5Colombia.
If the Licensing Entity’s principal place of business is located (as evidenced by the Certificate) in Colombia, the ,Licensing Entity of Cloud Services is stipulated as: Trend Micro Colombia, S.A.S., Calle 97ª# 9ª -50 of.
503, Bogotá, Colombia.
The Parties agree,thattheseTermsofServicearesolelyandexclusivelygovernedbythelawsofColombia.ThecourtslocatedinBogotá,Colombiashalleach have ,exclusive jurisdiction over all disputes arising out of or relating to these Terms of Service or its subjectmatter.,12.6Europe (as limited below): If Company is located (as evidenced by the Certificate) in European Economic Area (EEA), ,the United Kingdom if such be necessary for post-Brexit separation, or Switzerland, the Licensing Entity of Cloud Services in all instances is ,stipulated as: Trend Micro Ireland Limited, a company incorporated in Ireland under number 364951and having its registered office at IDA Business ,and Technology Park, Model Farm Road, Cork, Ireland.
The Licensing Entity and Company referenced in this Section 12.6, agree that theseTerms,ofService,theperformanceofthePartieshereunder,andalldisputesarisingoutoforrelatedheretowillbegovernedbyandconstrued solely in ,accordancewith the laws of Ireland.
The Parties irrevocably consent and agree to the sole and exclusive in personam jurisdictionofthecourtssitting,inIrelandwithrespecttoanydisputethatcannotberesolvedbythePartiesandallproceedingswithrespectthereto shallbelitigatedanddetermined,solelyandexclusivelyinsuchcourts.EachofthePartiesrepresentsandagreesthatsuchinpersonamjurisdiction is reasonable and fair and hereby ,waives any objection which it may now or hereafter have based on improper venue or forum non conveniens in suchcourts.,12.7Russia, Turkey, Middle East (other than Israel) and Africa: If Company is located (as evidenced by the Certificate) in ,Russia, Turkey, Africa, or the Middle East (other than Israel), the Licensing Entity of Cloud Services in all instances is stipulated as: Trend ,Micro DMCC, a limited liability company incorporated in United Arab Emirates having its registered office at Unit 3301, Swiss Tower, Plot No: ,JLT-PH2-Y3A, Jumeirah Lakes Towers, Dubai, United Arab Emirates.
The Licensing Entity and Company referenced in this Section 12.7, agree ,that these Terms of Service, the performance of the Parties hereunder, and all disputes arising out of or related hereto will be governed by and ,construedsolelyinaccordancewiththelawsofEnglandandWales.ThePartiesirrevocablyconsentandagreetothesoleandexclusiveinpersonam ,jurisdictionofthecourtssittinginEnglandwithrespecttoanydisputethatcannotberesolvedbythePartiesandallproceedingswithrespectthereto ,shall be litigated and determined solely and exclusively in such courts.
Each of the Parties represents to the other Party and agrees that such in ,personamjurisdictionisreasonableandfairandherebywaivesanyobjectionwhichitmaynoworhereafterhavebasedonimpropervenueorforum ,non conveniens in such courts.,12.8Asia Pacific.
Israel: If Company is located (as evidenced by the Certificate) in Australia, New Zealand, India, Malaysia, ,the Philippines, or Thailand, the Licensing Entity of Cloud Services in all instances is stipulated as: Trend Micro Australia Pty Limited, Level 15, ,1 Pacific Highway, North Sydney, New South Wales, 2060, Australia.
If Company is located (as evidenced by the Certificate) in Singapore, ,Vietnam or Indonesia, the Licensing Entity of Cloud Services in all instances is stipulated as: Trend Micro Singapore Pte Ltd., 6 Temasek ,Boulevard #16-01 Suntec Tower Four, Singapore.
If Company is located (as evidenced by the Certificate) in Taiwan, Republic of Korea, Hong ,Kong SAR, Macau SAR or Israel, the Licensing Entity of Cloud Services in all instances is stipulated as: Trend Micro Inc., 8F, No.198, Tun-Hwa ,S.
Road, Sec.
2, Taipei 106, Taiwan, Republic of China.
If Company is located (as evidenced by the Certificate) in the Peoples Republic of China, ,the Licensing Entity of Cloud Services in all instances is stipulated as: Trend Micro (China) Inc., R23, 14F, No.800 Shangcheng Rd., Pudong ,District, Shanghai, China20020.,.1If Company is located (as evidenced by the Certificate) in Australia or New Zealand, these Terms of Service are governed ,by the laws of New South Wales, Australia.
The Parties agree that the courts located in New South Wales shall have exclusive jurisdictionover,alldisputesarisingoutoforrelatingtotheseTermsofServiceoritssubjectmatter.,Notwithstanding anything contained in Sections 2.3 and 7of these Terms of Service, if the Australian Competition and Consumer Act 2010 is ,applicable to the instant transaction (and not otherwise subject to an effective exclusion or waiver under Sections 2.3 and 7) and Trend Micro is in ,breach of a guarantee implied by such Act, Trend Micro's liability is limited to the repair or replacement of goods/software or the supply of ,equivalent goods/software, or the payment of the cost of replacing the goods/software or having the good/software repaired where reasonable.
,Whereaguaranteerelatestotherighttosell,quietpossession,orcleartitleofagood/softwareunderschedule2oftheCompetitionandConsumer ,Act, then none of these limitationsapply.,.2If Company is located (as evidenced by the Certificate) in Hong Kong SAR or Macau SAR, these Terms of Service are ,governed by the laws of Hong Kong SAR.
The Parties agree that the courts located in Hong Kong SAR shall have exclusive jurisdiction over all,disputesarisingoutoforrelatingtotheseTermsofServiceoritssubjectmatter.,.3If Company is located (as evidenced by the Certificate) in Taiwan, these Terms of Service are governed by the laws of ,Taiwan, without regard to its principles of conflicts of law.
The Parties agree that the courts located in Taiwan shall have exclusive jurisdiction ,overalldisputesarisingoutoforrelatingtotheseTermsofServiceoritssubjectmatter.,.4If Company is located (as evidenced by the Certificate) in the Republic of Korea, these Terms of Service are governed by ,the laws of the Republic of Korea.
The Parties agree that the courts located in the Seoul Central District Court of the Republic of Korea shall,haveexclusivejurisdictionoveralldisputesarisingoutoforrelatingtotheseTermsofServiceoritssubjectmatter.,.5If Company is located (as evidenced by the Certificate) in Israel, these Terms of Service are governed by the laws of ,England and Wales.
The Parties irrevocably consent and agree to the sole and exclusive in personam jurisdiction of the courts sitting in England ,with respect to any dispute that cannot be resolved by the Parties and all proceedings with respect thereto shall be litigated and determined solely ,and exclusively in suchcourts.,.6If Company is located (as evidenced by the Certificate) in Singapore, India, Indonesia, Malaysia, the Philippines, ,Vietnam, or Thailand, these Terms of Service and the agreement to arbitrate is governed by the laws of Singapore, without regard to its principles ,of conflicts of law.
The following Irrevocable Mandatory Agreement to Arbitratewith respect to matters set forth in and governed by this ,Section 12.8.5 (only) is hereby irrevocably agreed by theParties:,a.The Parties irrevocably agree that each controversy, dispute, or claim in any way arising from, pertaining to, or in connection ,with these Terms of Service, any Cloud Services, or the performance/non-performance of both or either Party (each a “Dispute”) will be solely ,and exclusively resolved by mandatory and binding arbitration that is administeredby Singapore International Arbitration,Center (“SIAC”) which will be held and conducted in Singapore in accordance with the Arbitration Rules of Singapore International Arbitration ,Center (″SIAC Rules″) on the Publication Date.
The arbitration award will be final and binding for the Parties without appeal and will be in writing ,and set forth the findings of fact and the conclusions of law.
In arriving at their award, the arbitrators shall make every effort tofindasolutionto,theDisputeinthelanguageoftheseTermsofServiceandshallgivefulleffecttoallprovisionshereof.However,ifasolution cannot be found in ,the language of these Terms of Service, the arbitrators shall exclusively apply the substantive law of Singapore existing on the Publication Date ,hereof and are specifically divested by the Parties of any power or authority to: (i) apply any principles that would permit them to ignore these ,Terms of Service, or (ii) apply the law of any jurisdiction other thanSingapore.,b.The number of impartial arbitrators will be three (3), with each Party being entitled to appoint one arbitrator.
Thetwo,(2) arbitrators appointed by the Parties will appoint a third arbitrator (who must be a lawyer with a multinational law firm and have a minimum of ,ten (10) years of experience in the field of computer software development, licensing, and distribution) who will act as chairman of the proceedings, ,or if no agreement is reached by such arbitrators within twenty (20) days of the last to be appointed, then the post of chairman will be filled by ,the president of SIAC at the request of either Party.
Vacancies in the post of chairman will be filled by the president of SIAC in accordance ,with the SIAC Rules.
Other vacancies will be filled by the respective nominating Party.
Proceedings will continue from the stage they were at ,when thevacancyoccurred.,c.If one of the Parties refuses or otherwise fails to appoint an arbitrator within thirty (30) days of the date the other Party ,appoints its arbitrator, the Parties irrevocably agree that the first appointed arbitrator will be the sole arbitrator, provided that such arbitrator was ,validly and properly appointed in accordance with the SIAC Rules unless such sole arbitrator appointment shall be void or voidable under SIAC ,Rules, in which event a sole arbitrator having the qualifications of the chairman will be appointed by the president of SIAC in accordance with ,the SIACRules.,d.All proceedings will be conducted, including all documents presented in such proceedings, in the English language.
The,EnglishlanguageversionoftheseTermsofServiceprevailsoveranyotherlanguageversion.,.7If Company is located (as evidenced by the Certificate) in the People’s Republic of China, these Terms of Service are ,governed by the laws of China, without regard to its principles of conflicts of law.
The following Irrevocable Mandatory Agreement to Arbitrate,with respect to matters set forth in and governed by this Section 12.8.6 (only) is hereby irrevocably agreed by theParties:,a.The Parties irrevocably agree that each Dispute arising from or related to these Terms of Service, any Cloud Services, or ,the performance/non-performance of both or either Party will be finally settled by arbitration that is administered by Beijing Arbitration ,Commission (“BAC”) which will be held and conducted in Beijing in accordance with the Arbitration Rules of Beijing ArbitrationCommission ,(“BAC Rules”) on the Publication Date.
The arbitration award will be final and binding for the Parties without appeal and will beinwriting,andsetforththefindingsoffactandtheconclusionsoflaw.,b.The number of arbitrators will be three (3), with each Party being entitled to select one arbitrator or authorize the chairman ,of the BAC to appoint one arbitrator.
The third arbitrator shall be selected jointly by the Parties or nominated by the chairman of theBACin,accordancewithajointmandategivenbytheParties.Thethirdarbitratorshallbethepresidingarbitrator.,c.All proceedings will be conducted, including all documents presented in such proceedings, in the Simplified Chinese ,language.TheSimplifiedChineselanguageversionoftheseTermsofServiceprevailsoveranyotherlanguageversion.,12.9Other Countries in the Territory Not Listed Above.
If Company is located in any country or region not listed in any other ,subsection of this Section 12 (as evidenced by the Certificate), the Licensing Entity of Cloud Services in each instance is stipulated as the Trend ,Micro Affiliate stated in the Certificate.
In each such instance, the Parties agree that these Terms of Service, the performance of the Partieshereunder,,andalldisputesarisingoutoforrelatedheretowillbegovernedbyandconstruedsolelyinaccordancewiththelawsofEngland and Wales.
The ,Parties irrevocably consent and agree to the sole and exclusive in personam jurisdiction of the courts of England with respect to any dispute that ,cannot be resolved by the Parties and all proceedings withrespect thereto shall be litigated and determined solely and exclusively in such courts.
,Each of the Parties represents to the other Party and agrees that such in personam jurisdiction is reasonable and fair and hereby waives any objection ,which it may now or hereafter have based on impropervenue.,12.10Provisional Remedies.
No Waiver.
Notwithstanding the Parties agreement to arbitrate in Sections 12.8.5 or 12.8.6as the ,case may be, a Party may apply at any time to any court or courts having jurisdiction over the relevant Party or Parties for an order (that is ,NOT dispositive or final of any Dispute), including, but not limited to, an ex parte temporary restraining order, temporary injunction proceedings, ,or other provisional or interim/ancillary remedies or equitable relief (each a “Temporary Action”) seeking protection: (1) of its Confidential ,Information provided hereunder as described in Section 6.
or (2) from a breach of or non-compliance with any Cloud Service grant in Section 2of ,these Terms of Service or from infringement, misappropriation, or a violation of such applying Party’s intellectual property rights forming a part ,of any Cloud Service or otherwise, including any and all rights protectable under intellectual property laws anywhere in the world such as (by ,way of example) patent, copyright, trade secret, and trademark law.
provided, however, no such Temporary Action shall be a final disposition of ,any matter to be submitted to arbitration nor it shall compromise, limit, or avoid the sole and exclusive right of the arbitrators to decide and finally ,dispose of all Disputes subject to arbitration hereunder, including, without limitation, granting temporary or permanent relief of the subject of ,any request for Temporary Action.
The institution and maintenance of a Temporary Action shall not be deemed an election of remedies or ,constitute a waiver or abrogation (in whole or in part) of the agreed right and obligation of each Party, including the plaintiff in any arbitration ,or Temporary Action, to submit each and every Dispute to arbitration, nor supersede or renderinapplicable(allorinpart)theagreedcompulsory,arbitrationprovisionsoftheseTermsofService.