TERMS OF USE FOR TREND MICRO CLOUD ONETM
AVAILABLE ON AZURE MARKETPLACE TO AZURE ACCOUNT HOLDERS
(these “Terms of Use”)
IMPORTANT: READ CAREFULLY. THE RIGHT TO ACCESS AND USE ALL OR A PORTION OF TREND MICRO CLOUD ONETM BY BUSINESS, GOVERNMENTAL, AND OTHER LEGAL ENTITIES IS SUBJECT TO AND CONDITIONED ON ACCEPTANCE OF, AND AGREEMENT TO. THESE TERMS OF USE. TREND MICRO CLOUD ONETM IS NOT AVAILABLE FOR PERSONAL USE, HOME USE, AND/OR CONSUMER USE. 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 and Paid Use Services: Trend Micro Cloud One family of cloud-based security services and associated infrastructure/platform is made available by Trend Micro from time-to-time on the Azure Marketplace to Azure Account holders, but Trend Micro Cloud OneTM is not available or sold for personal use, home use, and/or consumer use by any person
Effective Date: 1 September 2020
COMPANY IS ORDERING OR HAS ORDERED CLOUD ONE SOLUTION(S) THROUGH COMPANY’S AZURE ACCOUNT AND COMPANY UNDERSTANDS AND ACCEPTS THAT COMPANY’S AGREEMENT TO THESE TERMS OF USE IS A PREREQUISITE TO AND A CONDITION OF SUCH ORDER. BY COMPANY: (1) ORDERING FROM THE AZURE MARKETPLACE; (2) CAUSING TREND MICRO TO REGISTER, PROVISION, OR DEPLOY; AND/OR (3) ACCESSING OR USING A CLOUD ONE SOLUTION, COMPANY AGREES THAT ANY SUCH ACTION CONSTITUTES:
a. COMPANY’S ACKNOWLEDGEMENT THAT IT HAS HAD THE OPPORTUNITY TO READ AND REVIEW THESE TERMS OF USE,
b. COMPANY’S ACCEPTANCE AND AGREEMENT TO THESE TERMS OF USE FOR CLOUD ONE AND CLOUD ONE SOLUTIONS,
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 USE, 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 OF USE.
COMPANY AGREES THAT WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THESE TERMS OF USE AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. AGREED DEFINITIONS USED IN THESE TERMS OF USE ARE IN SECTION 1.2 BELOW.
1. Overview; Agreed Definitions.
1.1.1 Application of These Terms of Use. Subject always to termination in accordance herewith, these Terms of Use that have been accepted and agreed by Company are applicable only to a Cloud One Solution for such time that such Cloud One Solution is subject to an outstanding Order that Company has issued to, and has been accepted by Azure for the benefit of Trend Micro, but only for such time as Company has an active Azure Account.
1.1.2 Entire Agreement. Company and Trend Micro agree that these Terms of Use (including the Standard Contractual Clauses and Data Processing Addendum that form a part hereof and set forth certain responsibilities of the Parties with respect to GDPR Data where applicable) are the final, complete, and exclusive statement of the agreement between the Parties with respect to access to and use of each Cloud One Solution secured by Company under an Order, and any prior agreements, representations, statement, white papers, or advertisement of Trend Micro (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 specifically set forth or specifically incorporated into these Terms of Use with respect to the subject matter hereof, are all merged into and superseded by these Terms of Use. Trend Micro will not be bound by, and specifically objects to, any term, condition or other provision which is different from or in addition to the provisions of these Terms of Use (whether or not it would materially alter these Terms of Use) and which is submitted by Company in any Order, confirmation, correspondence, payment, or other document. In entering into these Terms of Use, each Party represents and warrants to the other Party that it is NOT relying on any extrinsic representation, warranty, guarantee, covenant, condition, 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 Use.
1.1.3 Not a Master Purchase Agreement. Company acknowledges that this is NOT a master purchase agreement for subsequent purchases of Cloud One Solutions, but rather, these Terms of Use only apply to the instant Order of a Cloud One Solution by Company on the Azure Marketplace. Each subsequent renewal Order of a Cloud One Solution placed by Company on the Azure Marketplace will be made subject to and conditioned on the agreement of the Parties to the then-current version of these Terms of Use with effect from and after Order date until expired or terminated in accordance with the Terms of Use unless otherwise agreed in a writing signed by the Parties.
1.1.4 Azure Not a Party. Company agrees that it is herein purchasing the right to access and use one or more Cloud One Solution(s) from Trend Micro pursuant to these Terms of Use. As a supplier to Trend Micro, Azure is acting solely as an agent for Trend Micro or
seller of record in order to facilitate the purchase by Company on the Azure Marketplace of the right to access and use such Cloud One Solution(s) agreed hereunder and for no other purpose. As such, Company acknowledges and agrees that with respect these Terms of Use and each Cloud One Solution provided hereunder: (a) these Terms of Use are between Company and Trend Micro, and not with Azure (or its Affiliates or any other third party) in any event or circumstance; (b) Cloud One Solutions are designed, tested, updated, maintained, supported, and hosted by and/or on behalf of Trend Micro as owner of each Cloud One Solution and Trend Micro (and not Azure) shall be solely responsible/liable to Company with respect to Cloud One Solution(s) on the terms and subject to these Terms of Use; (c) Azure has no obligation to (i) furnish a Cloud One Solution to Company, (ii) furnish to Company any maintenance/support services for a Cloud One Solution, or (iii) except and only to the extent specifically reserved by Azure to the contrary in the Azure Terms and Policies, otherwise handle any warranty claim or other complaint or otherwise address or resolve any claim or dispute of any kind or nature that Company may have related to Trend Micro, a Cloud One Solution, or Company’s purchase of a Cloud One Solution on the Azure Marketplace under these Terms of Use; (d) Company covenants that it will not assert, make, or file any claim, demand, or cause of action against Azure with respect to these Terms of Use or a Cloud One Solution, but nothing in this Section is intended to be or is applicable to any agreement between Company and Azure and/or the relationship of the parties thereto with respect to other products and/or services offered or provided by Azure and/or its third party providers; and (e) in addition to the specific inclusion in Section 10.11, Azure and its Affiliates are hereby made third party beneficiaries (as suppliers to Trend Micro) of Section 9.2, as well as any exclusions from, and disclaimers and limitation of, liabilities, and damages set forth in these Terms of Use (including, without limitation, Section 7).
1.2 Agreed Definitions. In addition to initially capitalized definitions, descriptions, clarifications, and agreements that may be set forth elsewhere in these Terms of Use (including all policies, procedures, and Trend Micro websites that are specifically referenced and incorporated herein), the initially capitalized definitions, descriptions, and clarifications shall have the meanings set forth in this Section 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 or more Company employees with authorization to manage each Cloud One Solution on behalf of Company. Each Administrator will have the ability to, among other things, configure, maintain, set rules and policies for, assist Trend Micro in delivery of, view alerts and events generated by, and/or provide technical support for, each Cloud One Solution as determined by Company from time-to-time.
“Affiliate” means as to a person, each person that is Controlled by a person, that Controls such person, or that is under common Control with such person. “Control” means the direct or indirect ownership of more than fifty percent (50%) of the equity shares or interests (or the maximum equity ownership permitted by Applicable Law if such person is not permitted to own more than 50%) entitled to vote for the directors or other management of such person or the equivalent, but only for as long as such ownership relationship continues to exist. Upon request, each Party agrees to confirm in writing to the other Party, the status of any or all Affiliates.
“Applicable Laws” means all U.S.A. and foreign 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 applicable from time-to-time to a Party’s performance of its obligations and/or exercise of its rights hereunder, including data protection/privacy laws, corrupt activities/illegal payment laws, and export/import laws.
“Acceptable Use Policy” or “AUP” shall have the meaning set forth in Section 2.2
“Azure” means Microsoft Corporation.
“Azure Account” means Company’s active account on the Azure Marketplace.
“Azure Marketplace” means the software/service marketplace operated by Azure located at https://azuremarketplace.microsoft.com/en-us, as it may be updated from time-to-time by Azure.
“Azure Service” means the cloud computing platform/infrastructure hosting service offered by Azure.
“Azure Terms and Policies” means all of the Azure Marketplace terms, conditions, restrictions, and policies (if and only to the extent there are any) that may be applicable to Company in connection with its use of the Azure Marketplace and/or any Order.
“Cloud One” means the Trend Micro Cloud OneTM family of Cloud One Solutions that are cloud-based security services as well as the Cloud One platform that is hosted on behalf of Trend Micro, all as may be available on the Azure Marketplace from time-to-time.
“Cloud One Feedback” shall have the meaning set forth in Section 6.2.
“Cloud One Solution” means an individual cloud services security solution that is a Software-as-a-Service (SaaS) cloud product/application (as defined, described, and documented in Trend Micro’s Azure Marketplace listing, these Terms of Use, and User Documentation) offered under the Azure “SaaS app” pricing model from the Cloud One family, which Cloud One Solution may be accessed and used by Company for the Usage Metric that Company may purchase on the Azure Marketplace from among the Cloud One listings thereon from time-to-time. The term Cloud One Solution also includes any User Documentation related to a Cloud One Solution, Enabling Software (if any), as well as any and all updates, upgrades, new versions, or releases of a Cloud One Solution, that Trend Micro may elect to make available to customers of such Cloud One Solution, but the term Cloud One Solution does NOT include any different Azure Service or offering sold separately to Company by Azure. For the avoidance of doubt, these Terms of Use do not grant Company any right to request or receive a binary code copy of any Trend Micro published software except for Enabling Software (if any) that may form a part of a Cloud One Solution.
“Company” refers to a business/government entity that: (a) has and maintains an active Azure Account and has Ordered one or more Cloud One Solutions through such Azure Account; (b) has agreed to these Terms of Use with respect to such Cloud One Solution(s); and (c) accesses, uses, and/or receives the benefit of such Cloud One Solutions.
“Company’s Configuration” shall have the meaning set forth in Section 4.2.2.
“CompanyData” means any and all content, materials, data, and information owned by Company or any third party (including any Data Subject) that is forwarded or otherwise provided by Company: (a) when accessing and/or using a Cloud One Solution or that Company derives from its use of a Cloud One Solution (such as, Company-specific reports on Company Data generated by a Cloud One Solution, if any) under these Terms of Use; or (b) otherwise provided to Trend Micro by Company in connection with Support Services. For the avoidance of doubt, Company Data may include Personal Data.
“Confidential Information” shall have the meaning set forth in Section 6.1.
“Controlled Technology” shall have the meaning set forth in Section 10.4.
“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 IP addresses, malicious domains and URLs, DNS data, network telemetry, commands, executable binary files, macros, scripts, processes or techniques, metadata, or other information or data directly or indirectly associated with any of the foregoing, that may be related to unauthorized, unwanted, and/or harmful intrusions or attacks by any person associated therewith and that: (a) Company provides or makes available to Trend Micro in connection with a Cloud One Solution; or (b) is accessed, collected, or discovered by Trend Micro during the course of providing a Cloud One Solution, excluding only the portion of such information or data to the extent it is Personal Data. Cyberthreat Data is not Confidential Information or Company Data hereunder.
“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 of GDPR Data. The Parties agree that the Data Processing Addendum and the Standard Contractual Clauses that form a part thereof are incorporated herein and made a part hereof for all purposes on the terms and subject to the conditions and limitations set forth herein and therein.
“Data Subject” means an identified or identifiable natural person whose Personal Data is accessed by Trend Micro in connection with these Terms of Use for a Cloud One Solution.
“Enabling Software” means binary code software (but if and only if required by a Cloud One Solution’s User Documentation) that may be published by Trend Micro from time-to-time and licensed (but never sold) hereunder that is installed on Company’s device(s) that enables optimal access to and use of a Cloud One Solution, and that does not perform functionality without the active right to access and use the Cloud One Solution. Enabling Software may or may not be identified in the User Documentation.
“End User” means any individual, entity, or person (directly or indirectly through another user) that: (a) accesses or uses a Cloud One Solution for Company’s benefit in accordance with these Terms of Use such as Company’s Administrator(s) or technical/support resources; or (b) otherwise accesses or uses a Cloud One Solution.
“Evaluation Service” shall have the meaning set forth in Section 2.5.
“Excused Performance Events” means any event, condition, and/or circumstance beyond Trend´s reasonable control that was unavoidable even if foreseeable, including, without limitation: acts of God (such as earthquakes, hurricanes/typhoons, tornados, windstorms, snow/ice storms, fires, pandemics, or floods); declared or undeclared war; armed conflict; acts of terrorism; sabotage or arson; criminal actions; actions of civil authorities or governments; cyber-attacks; network intrusions; “zero day” threats or attacks; private or state-actor hacking, denial-of-service attacks, ransomware, or other malicious actions; telecom/internet congestion, slowdown or outage; computer, networks, or systems failures or delays involving hardware, software, or services not within a Trend’s possession, control and responsibility; labor strike or work stoppages; or an embargo/boycott or other export/import restrictions under Applicable Laws.
“GDPR” means the European Union General Data Protection Regulation that is only applicable to Personal Data that is subject to, regulated by, and protected under 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 Use, 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 www.trendmicro.com/privacy or 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 functionality for fail-safe or fault-tolerant operation or execution in order to maintain safe and secure performance in an environment where a failure could lead (directly or indirectly) to damage to, or loss or destruction of: real or immovable property; personal or movable property; personal or bodily injury to, sickness, disease or death of any person; and/or any contamination of, adverse effect on, or damage to the environment. 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, automobiles, and other modes of transportation; (c) air traffic control systems; (d) weapons systems (nuclear or otherwise); (e) operation of life-support or life-critical medical equipment or other equipment or systems affecting a patient’s health or well-being; and/or (f) any other device, environment, network, or system in which the unavailability, inaccuracy, circumvention, ineffectiveness, or failure of a Cloud One Solution could lead or contribute to damage to, or loss or destruction of: real or immovable property;
personal or movable property; personal or bodily injury to, sickness, disease or death of any person; and/or any contamination of, adverse effect on, or damage to the environment.
“Internal Business Use” means the internal business access and use of a Cloud One Solution solely by and for the direct benefit of Company specifically in connection with the security, protection, and/or integrity of Company’s systems, networks, devices, documents, emails, and/or other Company Data.
“IP Claim” means any suit, cause of action, or other legal proceeding filed/brought against Company by a third party (that is not an Affiliate of Company) in the courts of law, equity, or otherwise alleging or asserting that Company’s use of a Cloud One Solution (or component parts thereof, but not Open Source Software or an Evaluation Service) provided hereunder directly infringes any patent or copyright of such third party, or makes unlawful use of a trade secret of such third party; provided, however, the term IP Claim will not include and Trend Micro will have no obligation hereunder unless each third party allegation or assertion is specifically made against such Cloud One Solution alone. In addition, the term IP Claim will not include, and Trend Micro will have no obligation under Section 9 or otherwise with respect to, any suit, claim, cause of action, or other legal proceeding arising out of, based on, or related to the following: (a) any use of a Cloud One Solution by Company that is NOT in accordance with these Terms of Use, its User Documentation, or Applicable Laws; (b) any modification or programming to a Cloud One Solution (including components thereof) not made by Trend Micro; (c) Company Data and/or other materials that Company provides or makes available in connection with its use of a Cloud One Solution; (d) any redistribution of a Cloud One Solution, or use of a Cloud One Solution for the benefit of any third party not specifically permitted herein; (e) any use of a Cloud One Solution by Company after Trend Micro’s notice to cease use of a Cloud One Solution under Section 9.1.2; (f) Evaluation Service access and/or use; or (g) any third party allegation or assertion made against a Cloud One Solution (or any output thereof) that involves use of a Cloud One Solution in combination with any other software, service, business process, or technology offered by Azure or any third party.
“Open Source Software” or “OSS” means: (a) each and every third party software code/component that is licensed/distributed under a license agreement approved by the Open Source Initiative or similar open source license (and not this Agreement); and (b) is distributed to Company in a Cloud One Solution (including any Enabling Software) by Trend; including any of the following Open Source Initiative-approved license agreements: (i) GNU's General Public License (GPL), Lesser/Library GPL (LGPL), and GNU Affero Public License; (ii) The Artistic License (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 user interfaces); (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.
“Optional Features” means those capabilities, features, and functionality in a Cloud One Solution that require Trend Micro to process certain Company Data (some of which may be GDPR Data or Personal Data) that Company may elect to opt-in or opt-out of the use thereof only if and to the extent a right to opt-in or opt-out is described in and permitted by its User Documentation. For example, such Optional Features if active may permit a Cloud One Solution to: (a) provide the defined capabilities, features, and functionality thereof as described in the User Documentation; and/or (b) provide the most effective, up-to-the-minute threat protection and features to detect or prevent the latest malicious behavior and potentially fraudulent websites, internet security risks, and/or Cyberthreat Data.
“Order” refers to the Azure ordering documentation (including a registration webpage, if applicable), pursuant to which Company obtains limited access to a Cloud One Solution through the Azure Marketplace.
“OSS Terms” shall have the meaning set forth in Section 2.3.
“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.
“Process” shall have the meaning set forth in Section 4.3.
“Smart Protection Network” or “SPN” means Trend Micro’s Smart Protection Network.
“Standard Contractual Clauses” or “Clauses” or sometimes also referred to the “EU Model Clauses” means the Standard Contractual Clauses (processors) published by the European Commission, which Standard Contractual Clauses are attached to the Data Processing Addendum at trendmicro.com/dpa or as may be requested by Company from legal_notice@trendmicro.com.
“Support Services” are described in Section 5.1.
“Term” is described in Section 8.1.
“Trend Claim” means any suit, cause of action, governmental inquiry, or other legal or administrative proceeding filed/brought by, in connection with, or for the benefit of a Data Subject or other third party against Trend Micro (and/or its suppliers such as Azure) in the courts of law or in equity, in a governmental investigation or proceeding, or otherwise arising out of or in connection with: (a) an assertion or allegation that Company failed to provide adequate notice to, and/or secure and maintain all rights, consents, and approvals of, each Data Subject or other third party source of Company Data as is required in Section 4; (b) an assertion or allegation that Company caused Company Data to be processed by a Cloud One Solution without Company having first secured all necessary consents and approvals from the Data Subject or other third party source in a manner that violates the rights of, defamed, or otherwise caused harm to, to such Data Subject or third party, or otherwise violated Applicable
Law; and (c) Trend Micro’s response to a subpoena, court order or other official inquiry of a government authority regarding Company Data (including data of any Data Subject) or Company’s use of a Cloud One Solution.
“Trend Micro” means Trend Micro Incorporated, a California corporation.
“Usage Metric” means Trend Micro’s measurement of entitlement published on the Azure Marketplace by Trend Micro for determining the permitted use and/or length of use as well as calculating the fees due for each Cloud One Solution. Each Cloud One Solution may be billed under one of the following Usage Metrics stated on the Cloud One Solution’s listing page on the Azure Marketplace: (a) custom metered pricing that will be billed to Company monthly in arrears based on such Usage Metric; (b) sold by monthly or annual subscription and billed at the commencement of the subscription term; or (c) a combination of monthly or annual subscription model with additional custom metered pricing elements, that will be billed to Company as stated by Trend Micro from time-to-time.
“User Documentation” means the printed, electronic, and/or online technical documentation, service descriptions, and operating instructions and requirements generally made available by Trend Micro for each Cloud One Solution (and Enabling Software, if any) that is made available for the purpose of supporting Company’s Internal Business Use of a Cloud One Solution. The User Documentation is incorporated herein and made a part hereof for all purposes; provided, however, Company understands and agrees that the published User Documentation may be revised from time-to-time by Trend Micro at its discretion as, for among other reasons, changes or improvements to, or new versions of, a Cloud One Solution are released by Trend Micro as described in Section 2.7 without the need to amend these Terms of Use.
2. Grant for Cloud One Solutions and Applicable Conditions, Limitations, Reservations, and Exclusions.
2.1 Grant.
2.1.1 Grant of Access to and Use of Cloud One Solution(s). On the terms and subject to Company’s continuous compliance with all of the conditions, exclusions, and restrictions set forth in these Terms of Use, Cloud One’s Acceptable Use Policy, and the terms and conditions of any applicable Azure Terms and Policies to the extent applicable to Company in connection with it access to and use of any Cloud One Solution, Trend Micro hereby grants only to Company, a non-exclusive, non-transferable, non-sublicensable, terminable (in accordance herewith or Applicable Law), worldwide right to access and use a Cloud One Solution in accordance with its User Documentation only for Company’s Internal Business Use for such time and only for the Usage Metric as Ordered and paid for (in accordance with agreed payment terms) by Company until the expiration or termination of the foregoing grant in accordance herewith or Company’s Azure Account is terminated, whichever shall first occur.
2.1.2 License to Enabling Software. If a Cloud One Solution 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 One Solution. Subject to these Terms of Use, Trend Micro grants Company (solely for the Internal Business Use of Company) a non-exclusive, non-transferable, non-sublicensable, worldwide (subject to applicable export/import 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 such Cloud One Solution as described in the User Documentation; provided that, Company: (a) at all times complies with the terms and conditions of these Terms of Use; (b) ensures that anyone (including End Users) who accesses or uses the Enabling Software (accessed either locally or remotely) in connection with a Cloud One Solution (i) does so only on Company's behalf, and (ii) complies with the terms and conditions of these Terms of Use; (c) does not (i) install, access, use, copy, modify, or distribute the Enabling Software except asmay be expressly permitted in User Documentation or these Terms of Use, 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 Use 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 Micro or any third party. If and to the extent only as maybe permitted in the User Documentation, Company may make a single copy of the Enabling Software for back-up, archival, and disaster recovery purposes. The Enabling Software (and back-up, archive, and disaster recovery copy) must be promptly un-installed and irretrievably destroyed when Company no longer has a right to access or use a Cloud One Solution hereunder.
2.1.3 Limitations/Conditions. Except as may be specifically granted hereunder to Company in this Section 2.1, Company agrees that it is not licensed or authorized hereunder to and as a condition hereunder, will not (or otherwise allow third parties to): (a) modify, adapt, copy (except as permitted herein with respect to Enabling Software), translate, disassemble, decompile, or reverse engineer Cloud One (or any Cloud One Solution), or otherwise attempt to derive the source code of, decrypt, modify, or create derivative works of, Cloud One (or any Cloud One Solution); provided, however, configuring Cloud One (or any Cloud One Solution) within its policy parameters set forth in the User Documentation shall not constitute a modification or derivative work; (b) use any Cloud One Solution: (i) as a paid or unpaid service bureau or to otherwise provide outsourcing services, commercial hosting, application service provider or to otherwise provide services directly or indirectly to third parties (such as business process outsourcing); (ii) to provide services to third parties on a time-share basis; or (iii) otherwise commercially exploit or make Cloud One (or any Cloud One Solution) available to any third party; or (c) license, sublicense, sell, resell, loan, rent, lease, transfer, assign, or distribute Cloud One (or any Cloud One Solution) to any third party; (d) publish, provide, or otherwise make available to any third party, any benchmark tests or performance analysis relating to Cloud One (or any Cloud One Solution) without the express written permission of Trend Micro which may be withheld or conditioned at the sole discretion of Trend Micro; or (e) attempt to do any of the foregoing.
2.2 Acceptable Use Policy. Company agrees that it will not make any use or disclosure of, or perform any acts with respect to, a Cloud One Solution other than as expressly permitted by its User Documentation, these Terms of Use, and/or the Usage Metric purchased by Company. In addition, this Acceptable Use Policy (this “Acceptable Use Policy” or “AUP”) describes prohibited uses of Cloud One Solutions offered by Trend Micro hereunder. Company acknowledges that the examples described in this Policy are not exhaustive. The Parties agree that Trend Micro may modify this AUP at any time by posting a revised version on the Trend Micro website at https://www.trendmicro.com/eula. By continuing to access and use a Cloud One Solution pursuant to these Terms of Use, Company agrees to the latest version of this Acceptable Use
Policy. In light of the foregoing, Company may not and agrees that it will not, nor will Company authorize or help or otherwise permit third parties to:
(a) Disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters Company’s use of any Cloud One Solution or otherwise use such Cloud One Solution in a way intended to avoid incurring fees or exceeding the Usage Metric limitations agreed to in an Order or otherwise attempt to gain unauthorized access to a Cloud One Solution.
(b) Access or use a Cloud One Solution without permission in accordance herewith, including attempting to probe, scan, or test the vulnerability of the environment of a Cloud One Solution or to breach any security or authentication measures used by or in any Cloud One Solution.
(c) Make network connections to any other customers, users, hosts, or networks unless Company has permission to communicate with each such person. Additional prohibited activities include: (i) monitoring or crawling of a Cloud One Solution that impairs or disrupts the Cloud One Solution being monitored or crawled; (ii) inundating a target with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective; (iii) interfering with the proper functioning of a Cloud One Solution or other cloud service, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques; (iv) operating network services like open proxies, open mail relays, or open recursive domain name servers; or (v) using manual or electronic means to avoid any use limitations placed on a Cloud One Solution, such as access and storage restrictions.
(d) Use a Cloud One Solution: (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, disseminate, or otherwise make available content that is illegal, harmful, fraudulent, or offensive including generating or facilitating child pornography, offering or disseminating fraudulent goods, services, schemes, or promotions, make-money-fast schemes, Ponzi/pyramid schemes, phishing, or pharming; (ii) in a manner that infringes or misappropriates the intellectual property rights of any third party or otherwise that breaches these Terms of Use and/or this AUP; (iii) interfere with the use of a Cloud One Solution by any third party; or (iv) interfere with the proper functioning of the environment/infrastructure used to provide a Cloud One Solution.
(e) Generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings, surveys, or other solicitations (e.g., “spam”), including commercial advertising and informational announcements.
(f) Access, evaluate, observe, or use, Cloud One (or any Cloud One Solution) to build or support (or assist a third party in building 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 One (or any Cloud One Solution) for any reason.
(g) Access or use of a Cloud One Solution in excess of the quantity and/or other Usage Metric that Company has Ordered.
In addition to any other rights or remedies afforded to Trend Micro under these Term of Use or under any Applicable Law, Trend Micro reserves the right, but has no obligation, to investigate suspected actions inconsistent with, or violations of, Company’s undertakings in this Acceptable Use Policy or any misuse of a Cloud One Solution and to take remedial action if Company breaches or violates any of the foregoing commitments, including the suspension, removal, disablement, or terminations of Company’s right to access or use any affected Cloud One Solution. In addition, Company agrees that Trend Micro may report any activity that it suspects violates any Applicable Law to the appropriate law or regulatory enforcement officials and provide any assistance required under such Applicable Law. Company agrees that neither Azure nor Trend Micro shall have any liability to Company for damages or anything else in the event that Trend Micro takes any action permitted hereunder in good faith.
2.3 Open Source Software. Enabling Softwaremay come bundled or otherwise be distributed with open source software (herein “Open Source Software”), that is subject solely to the agreement terms, conditions, limitations, and disclaimers of the specific license (each “OSS Terms”) under which such Open Source Software is redistributed to Company by Trend Micro and NOT these Terms of Use. OSS Terms applicable to any Open Source Software redistributed in any Enabling Software provided hereunder will be identified by Trend Micro in the User Documentation 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, AS AVAILABLE, AND WITH ALL FAULTS” WITHOUT (AND SPECIFICALLY DISCLAIMS) ANY GUARANTEE, CONDITION, OR WARRANTY (EXPRESS, IMPLIED, OR OTHERWISE) OF ANY KIND OR NATURE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE, AND/OR NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS OF USE, 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, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF OPEN SOURCE SOFTWARE, EVEN IF TREND MICRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2.4 Security Acknowledgement. Certain Trend Micro products are designed to identify, block and/or remove applications, messages, and files that may compromise productivity or the performance and security of computers, systems, and/or networks. While Trend Micro uses commercially reasonable efforts to properly identify applications and files for detection by its products/software, however, given the constantly changing nature and volume of malicious, fraudulent, and unwanted electronic content, Trend Micro cannot and does not warrant or guarantee that a Cloud One Solution will detect, block, or completely remove or clean any or all applications, routines, and files that are malicious, fraudulent, or that Company does not use or want. Company understands and agrees that the success of its security efforts are dependent on a number of factors solely under Company’s control and responsibility such as: (a) the design, implementation, and use of a number of hardware and software security tools in a coordinated effort to manage present and future security threats; (b) the design, development and implementation of cybersecurity protocols and controls, network and systems protections, as well as monitoring and detection processes applicable to the foregoing; (c) the selection, implementation, and enforcement of appropriate internal security policies, procedures, and controls regarding access, security, encryption, use, and transmission of data; (d) the development of processes and procedures for the backup and recovery of any system, software, database, and any stored data; (e) conducting regular cybersecurity and privacy training for employees; (f) having adequate vendor risk management processes; and (g) diligently and promptly downloading and installing all updates to all products and software that are made available to Company by any publisher or manufacturer.
2.5 Evaluation of a Cloud One Solution. If Company has Ordered or otherwise entitled to an evaluation, trial, preview, or test of a Cloud One Solution (herein an “Evaluation Service”), then the provisions of this Section shall apply and shall control over any conflicting terms of these Terms of Use. On the terms and subject to the conditions of these Terms of Use but in lieu of Section 2.1.1, Company will have the right to conduct an evaluation, trial, preview, or test of the Evaluation Service for a period not to exceed thirty (30) days (unless otherwise agreed to in writing by Trend Micro or earlier terminated in accordance with Section 8), during which period Company may access and use the Evaluation Service solely for Company’s internal evaluation in a non-production environment (that is to say, an environment that does not process any actual Company Data or otherwise perform productive work for Company’s Internal Business Use) to decide whether to purchase (except for any trial of beta test granted to Company) the right to continue to access and use the Evaluation Service for Company’s Internal Business Use. Evaluation Services are provided gratuitously by Trend Micro. Trend Micro has no obligation to provide any support for Evaluation Services, but Trend Micro may do so at its sole discretion. Company acknowledges that the Evaluation Services may contain errors, defects or other problems that could cause system or other failures, security breaches, interruptions, and/or data loss. CONSEQUENTLY, EVALUATION SERVICES ARE PROVIDED TO COMPANY SOLELY ON AN “AS IS, AS AVAILABLE, AND WITH “ALL FAULTS” BASIS, AND TREND MICRO HEREBY EXCLUDES AND EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, GUARANTEES, CONDITIONS, UNDERTAKINGS, OR WARRANTIES, AND LIABILITY OF ANY KIND (WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE) 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 (INCLUDING AZURE) FROM ALL CLAIMS AND CAUSES OF ACTION SHALL BE LIMITED TO THE SUM OF ONE HUNDRED UNITED STATES DOLLARS (USD$100.00) IN THE AGGREGATE. If Company accesses and/or uses a Cloud One Solution after expiration of Evaluation Services period as set forth in this Section 2.5 and such Evaluation Service is listed for compensation on the Azure Marketplace, Company agrees to pay for such Cloud One Solution thereafter in accordance with Trend Micro’s rates and fees published on the Azure Marketplace and the Parties agree that these Terms of Use shall apply to such extended paid use.
2.6 Ownership; Reservation of Rights. Cloud One and each Cloud One Solution offered hereunder, is and remains the exclusive property of Trend Micro and/or its licensors. Except for Company’s access and use rights expressly agreed in these Terms of Use and the limited license granted in Section 2.1.2 to Enabling Software, no license or other rights in or to a Cloud One Solution or Trend Micro’s and its licensor’s intellectual property rights therein, are granted to Company. Company acknowledges and agrees that, as between the Parties, a Cloud One Solution and all ideas, methods, algorithms, formulae, processes, and concepts incorporated into Cloud One (or any Cloud One Solution), and all revisions, corrections, modifications, enhancements, releases, upgrades, and other updates in, of, or to a Cloud One Solution, and all derivative works based on any of the foregoing, and any copies of the foregoing are the intellectual property of Trend Micro and reserved to and the sole property of Trend Micro or its licensors. Company will not alter or remove Trend Micro’s and its licensors’ copyright notices and all other proprietary legends from Cloud One (or any Cloud One Solution).
2.7 Changes and Improvements to Cloud One. 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 a Cloud One Solution (e.g., infrastructure, features or functionality, security, technical configurations, and/or application features) during the Term, to reflect changes in, among other things, laws, regulations, rules, improvements in technology, industry practices, patterns of use, and cyberthreat environment and capabilities. Any such improvement, change, and/or new version of a Cloud One Solution shall be governed by these Terms of Use and shall not be treated as a breach of these Terms of Use nor give Company a right to a full or partial refund of any monies paid or payable hereunder, but Company acknowledges that the use of some of which may be contingent upon Company’s agreement to additional terms. Company acknowledges and understands that the Cloud One infrastructure/platform is hosted for the benefit of Trend Micro by a third party service provider pursuant to a hosting agreement with terms, conditions, restrictions, and policies that are imposed on and agreed by Trend Micro with respect to its use of such hosting services, some of which, the third party service provider requires to be imposed on customers of Trend Micro as “flow-ups” to its customers benefiting from such infrastructure/platform. Trend Micro specifically reserves the right (by notice in accordance with Section 10.7) to revise these Terms of Use at any time required, necessary, or advisable in order for Trend Micro to remain in compliance with its then-current third party service provider’s hosting agreement (and applicable policies and other requirements thereof) for hosting Cloud One Solutions as well as the protection of Trend Micro, its Affiliates, its and their suppliers, and its and their customers and other third parties.
2.8 High-Risk Environment. Each Cloud One Solution is not fault-tolerant/fail-safe and is 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 Cloud One and any Cloud One Solution in a High-Risk Environment. Company expressly acknowledges and understands that no Cloud One Solution has been submitted for compliance testing, certification, or approval to any governmental agency and/or a self-regulatory, standard-setting, or other industry/product-specific consensus organization for use in a High-Risk Environment. As a condition precedent to Company utilizing a Cloud One Solution in a High-Risk Environment, Company agrees to first: (a) secure and maintain any and all certifications and/or approvals required under any Applicable Law or otherwise advisable with respect to a Cloud One Solution that Company intends to deploy in a High-Risk Environment; and (b) undertake all appropriate and/or necessary testing, fail-safe, backup, redundancy and other measures necessary to ensure the safe deployment and use of a Cloud One Solution by Company in a High-Risk Environment. Any access, deployment, or use of a Cloud One Solution in a High-Risk Environment shall be at Company’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 (of its and their customers) may now or hereafter have against Trend Micro and its Affiliates with respect to Company’s access, deployment, or use of a Cloud One Solution in a High-Risk Environment.
3. Company Responsibilities.
3.1 Azure Account Compliance. It is a condition precedent to any rights granted to Company under these Terms of Use that Company will comply with any and all applicable Azure Terms and Policies associated with its Azure Account, if only to the extent, such shall be applicable or related to Company’s performance of its obligations or exercise of it rights hereunder and Company is solely responsible for such compliance therewith by Company and its End Users. Trend Micro is not responsible for any content or aspect of other services provided to Company by Azure.
3.2 Cloud One Setup; Registration; Administrators. Company is responsible for registering, architecting, selecting, configuring, and securing operation of, as well as securing and maintaining connectivity and access to, a Cloud One Solution. Company must provide Trend Micro with all necessary or advisable information to allow Trend Micro to provision, and make available a Cloud One Solution, as well as permit registration 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, but is not Company Data. In accordance with the User Documentation, Company will provide (and maintain) to Trend Micro, contact information for Company's Administrator(s) who are the only authorized End Users permitted to provide information required to manage, configure, access, maintain, and support each Cloud One Solution for Company.
3.3 Authentication Credentials. Company has sole control over access and use by its End Users of each Cloud One Solution, and is responsible for ALL activity (whether authorized or unauthorized) occurring on Company’s Cloud One account hereunder. Company is responsible for maintaining the confidentiality of any non-public authentication credentials associated with its access to and use of each Cloud One Solution. Company will ensure that all End Users comply with Company’s obligations under these Terms of Use and that the terms and conditions of Company’s agreement with each End User are consistent with these Terms of Use. If Company becomes aware of any breach or non-compliance of Company’s obligations under these Terms of Use by an End User, Company will immediately terminate such End User’s access to the affected Cloud One Solution and notify Trend Micro. Further, Company is responsible for population, maintenance, security, protection, loss prevention, and backup of Company’s systems, Company Data, and other content or information.
3.4 Internet Transmission. Company understands and agrees that no data transmission over the Internet by Company is guaranteed to be secure by Trend Micro. Trend Micro is not responsible for any interception or interruption of any communications through the Internet or networks or systems outside Trend Micro’s control. Company is solely responsible for maintaining the security of its networks, servers, applications and access codes.
3.5 Fees. Company will timely pay to Azure (acting as seller of record for Trend Micro) the fees then-published by Trend Micro on the Azure Marketplace (plus any applicable Taxes) for access to and/or use of a Cloud One Solution in accordance with the Usage Metric and Azure Terms and Policies applicable to the Azure Marketplace. If the Cloud One Solution permits Company to exceed the Usage Metric that is purchased by Company, then Company agrees to purchase and pay for any excess usage when required on the Azure Marketplace. Invoicing and collection of the fees and any applicable Taxes by Azure is done on behalf of Trend Micro for its benefit. Except as may be expressly set forth in Sections 8 and 9.1, the fees Company pays for access to and use of a Cloud One Solution are nonrefundable except and only to the extent specifically required by any then-published Azure Marketplace refund policy that may be applicable to a Cloud One Solution. Trend Micro reserves the right to change or modify published fees for each Cloud One Solution in a manner and at such times as Trend Micro shall determine in its discretion that is not specifically prevented by the then-published Azure policies applicable to Azure Marketplace listings. Except and only to the extent as may be specifically set forth herein, all payment obligations of fees for Cloud One Solutions are non-cancelable and sums paid are non-refundable or otherwise subject to proration.
3.6 Taxes. Except as may be expressly stated to the contrary on Trend Micro’s Azure Marketplace listing, the fees and other charges described on Trend Micro’s listing page and in the Order do not include foreign and domestic national, federal, dominion, provincial, state, municipal, or local sales, use, VAT, GST/GSM, excise, service, digital services (access, use, and/or revenue), or similar transactional taxes (collectively “Taxes”) now or hereafter levied under Applicable Laws. Company will provide Trend Micro and/or Azure information (and Company hereby authorizes Azure to provide to Trend Micro information on Company’s Taxes) all required for the calculation, invoicing, and remittance of all applicable Taxes that Trend Micro reasonably requests to determine whether Trend Micro or Azure is obligated to collect and remit any Taxes from Company, including Company’s correct name, location, and sales 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/Azure with legally-sufficient tax exemption certificates for each taxing jurisdiction. Otherwise, Company will be invoiced for, and pay, all Taxes as required by Applicable Law.
4. Company Data and Content; Optional Features, Data Protection; Privacy; GDPR.
4.1 Responsibility 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 Company will: (a) with respect to all Company Data, provide all notices to, and procure and maintain all necessary rights, consents, and approvals; 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 Cloud One Solution (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 will not assume any obligations to Company with respect to Company Data or Company’s use of a Cloud One Solution other than as may be expressly set forth in these Terms of Use including in relation to its provision of Support Services.
4.2 Company’s Configuration; Optional Features; Right to Use Company Data.
4.2.1 Right to Use Company Data. Company hereby grants Trend Micro a limited, non-exclusive, royalty-free, paid-up, license to access and use Company Data (unless and only to the extent Company opts-out of such uses throughCompany’s Configuration): (a) as necessary for Trend Micro to provide each Cloud One Solution 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 each Cloud One Solution; (c) to identify and collect information on actual or Cyberthreat Data, including, without limitation, potential security risks and URLs associated with websites, executable files, or content identified as potential malware vectors in order to continually provide each Cloud One Solution and to improve Trend Micro’s subject-matter databases; (d) for administration of these Terms of Use and each Cloud One Solution; (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 Use and/or Trend Micro’s Global Privacy Notice.
4.2.2 Company’s Configuration. Company acknowledges and agrees that a Cloud One Solution may contain certain Optional Features. Company is solely responsible for selecting (during activation/initial deployment and at all times thereafter) and maintaining Company’s Configuration of each Cloud One Solution and assuring that Company’s Configuration conforms to Company’s requirements, policies, and procedures regarding any processing of Company Data (including any GDPR Data and/or other Personal Data) and complies with all Applicable Laws in each jurisdiction to which Company's processing of any Company Data in connection with its use of any Cloud One Solution 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 One Solution and at any time thereafter, Company agrees to: (a) review the capabilities, features, and functionality of the Optional Features and all other features and functionality in the User Documentation thereof; and (b) activate, configure, restrict, limit, and/or disable each Optional Feature as may be described in the User Documentation in order to cause Company Data to be processed in a manner that meets Company’s specific needs (each Cloud One Solution 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 User Documentation, Company understands that each Cloud One Solution 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 Cloud One Solution.
4.3 Personal Data Protection. A Cloud One Solution 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. In accordance with the instructions made known through Company’s Configuration and these Terms of Use, Trend Micro may access, receive, process, copy, backup, store, transfer and use Personal Data which may take place in, from and to the United States of America, Europe, or other countries or jurisdictions, potentially outside 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 One Solution from unauthorized access and misuse while under Trend Micro’s custody or control, including when Trend Micro utilizes any third party 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.
4.4 GDPR Data Processing; Relationship of the Parties. By agreeing to these Terms of Use, 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 other Company Data/Personal Data) that Company (and its Affiliates that have been authorized to access and/or utilize Cloud One Solutions hereunder) provides or makes available to Trend Micro hereunder. With respect to each Affiliate of Company that accesses or utilizes any Cloud One Solution 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.
5.1 Support Services. Trend Micro will provide Support Services for each Cloud One Solution on the terms, conditions, and descriptions set forth in the Support Services terms posted at https://success.trendmicro.com/technical-support (the “Support Services”), as modified from time to time, subject to the conditions stated in such Support User Documentation. Service Level Targets for Support Services may be found at www.trendmicro.com/severitydefinitions, which Service Level Targets may be revised by Trend Micro at its discretion from time-to-time. Except for the Support Services, these Terms of Use do not require Trend Micro to provide Company with any configuration, deployment, training, maintenance services, consulting services, or other technical assistance of any kind. Each Cloud One Solution is periodically monitored based on service level targets and adjustments are made by Trend Micro as needed.
5.2 Updates to Enabling Software. At its sole discretion, Trend Micro may provide periodic updates to the Enabling Software, 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 and each Cloud One Solution depends upon Company’s prompt installation of any and all such updates to any Enabling Software that Trend Micro makes available to Company.
6. Confidentiality; Feedback.
6.1 Confidentiality/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 confidential to the other Party (“Confidential Information”). Written or other tangible Confidential Information must at the time of disclosure be 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. Each Party agrees that it will not use such Confidential Information, except as authorized under these Terms of Use, and will protect Confidential 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 Use including the Global Privacy Notice. 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 Use; 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 such disclosure. Unless otherwise agreed to by both Parties, upon termination of these Terms of Use, each Party will return to, or irretrievably destroy, the other Party’s Confidential Information in its possession. In the event that the Parties hereto have previously entered into a non-disclosure or confidentiality agreement that is still in effect on the Effective Date of these Terms of Use, then the Parties hereto agree that such prior
agreement is hereby merged into and superseded by these Terms of Use ONLY with respect to the subject matter hereof and the transactions undertaken pursuant hereto.
6.2 Feedback. Notwithstanding anything to the contrary herein: (a) Trend Micro will have no obligation of any kind to any person with respect to any Cloud One-related or Cloud One Solution-related comments, suggestions, design changes or improvements, that Company may elect to provide to Trend Micro in either verbal or written form (collectively, “Cloud One 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 One 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 services incorporating Cloud One Feedback in whole or in part, and (ii) which right and license is granted without any restrictions or limitations, including requiring the payment of any license fees, royalties, or other consideration.
7. Warranty; Warranty Disclaimers; Limitations and Exclusions from Liability.
7.1 Limited Warranty. In connection with a Cloud One Solution, Trend Micro warrants only to Company that a Cloud One Solution provided under these Terms of Use will substantially conform to its User Documentation in all material ways under normal use and circumstances until the expiration or termination of Company’s right to access and use of such Cloud One Solution under these Terms of Use. The foregoing limited warranty does not cover events or circumstances caused by accident, abuse, or use of such Cloud One Solution in a manner inconsistent with these Terms of Use, the User Documentation, or other guidance provided by Trend Micro or resulting from events of an Excused Performance Event. If it is established that Trend Micro has breached the above warranty after notice from Company, Trend Micro may, at its option: (a) use reasonable efforts to cure the breach; or (b) in the event Trend Micro cannot, after commercially practicable attempts to do so, achieve the remedy in (a) immediately above, either Trend Micro or Company may terminate these Terms of Use and Trend Micro will provide a refund of unused 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 must report in writing to Trend Micro, the alleged breach of warranty with reasonable specificity within ten (10) days of its occurrence. The above remedies for breach of the foregoing warranty are Trend Micro's sole and exclusive obligation and liability to Company and Company's sole and exclusive right and remedy for Trend Micro’s breach of the foregoing warranty notwithstanding any other provision of these Terms of Use to the contrary.
7.2 DISCLAIMER OF ALL OTHER CONDITIONS, GUARANTEES, AND WARRANTIES. EXCEPT AS SET FORTH IN SECTION 7.1, EACH CLOUD ONE SOLUTION, 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, AND AZURE) 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/COMMERCIAL CODE, 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 ABILITY TO ACHIEVE A PARTICULAR RESULT. FURTHER, TREND MICRO DOES NOT REPRESENT, WARRANT, OR GUARANTEE THAT: (A) A CLOUD ONE SOLUTION WILL BE CONTINUOUSLY AVAILABLE OR USE THEREOF UNINTERRUPTED; (B) THE FUNCTIONS AND FEATURES CONTAINED IN A CLOUD ONE SOLUTION WILL MEET THE REQUIREMENTS OF COMPANY OR THAT A CLOUD ONE SOLUTION 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 ONE SOLUTION WILL PROVIDE COMPLETE AND ABSOLUTE PROTECTION OF COMPANY’S SYSTEMS, NETWORKS, DEVICES, ASSETS, INFORMATION, AND/OR DATA FROM AND AGAINST ANY OR ALL CYBERTHREAT DATA OR ANY OTHER POSSIBLE RISKS OR ATTACKS BY ANY PERSON; (D) USE OF A CLOUD ONE SOLUTION WILL DETECT, IDENTIFY, BLOCK, REMOVE, REMEDIATE, OR RESOLVE SOME, ANY, OR ALL CYBERTHREAT DATA; (E) A CLOUD ONE SOLUTION WILL BE PROVIDED OR PERFORMED ERROR-FREE OR WITHOUT VULNERABILITIES, OR THAT TREND MICRO WILL IDENTIFY AND/OR CORRECT ALL ERRORS/VULNERABILITIES IN A CLOUD ONE SOLUTION; OR (F) A CLOUD ONE SOLUTION WILL OPERATE IN COMBINATION WITH COMPANY DATA, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS, CLOUD SERVICE, OR DATA NOT PROVIDED OR REQUIRED BY TREND MICRO.
7.3 EXCLUSIONS FROM AND LIMITATIONS OF LIABILITY. TREND MICRO AND ITS AFFILIATES AND ITS AND THEIR LICENSORS AND SUPPLIERS (INCLUDING AZURE AND ITS AFFILIATES) WILL NOT BE LIABLE TO COMPANY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TREND MICRO AND ITS AFFILIATES, SUPPLIERS, AND LICENSORS WILL NOT BE RESPONSIBLE OR OTHERWISE HAVE LIABILITY FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING FROM OR RELATED TO: (A) COMPANY’S USE OR INABILITY TO ACCESS OR USE A CLOUD ONE SOLUTION, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THESE TERMS OF USE OR COMPANY’S USE OF, OR ACCESS TO, SUCH CLOUD ONE SOLUTION, (II) DISCONTINUATION OF, OR MODIFICATION TO, ANY OR ALL CLOUD ONE SOLUTIONS OR SUPPORT SERVICES, OR, (III) ANY DOWNTIME OF ALL OR A PORTION OF A CLOUD ONE SOLUTION FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES, AZURE PLATFORM OR INTERNET FAILURES, OR OTHER INTERRUPTIONS; (B) ASSERTIONS OR CLAIMS THAT A CLOUD ONE SOLUTION DID NOT PROTECT COMPANY OR ITS SYSTEMS AGAINST ALL SECURITY BREACHES OR ANY OR ALL POSSIBLE SECURITY THREATS, MALFUNCTIONS, MALICIOUS CODE OR OTHER VULNERABILITIES; (C) ERRORS IN A CLOUD ONE SOLUTION CAUSED BY VULNERABILITIES, VIRUS INFECTION, WORM OR OTHER MALICIOUS CODE; (D) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (E) LOSS OF PROFITS, GOODWILL, USE, COSTS OF COVER, OR DENIAL OF ACCESS OR DOWNTIME; (F) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY COMPANY IN CONNECTION WITH THESE TERMS OF USE OR COMPANY’S USE OF, OR ACCESS TO, A CLOUD ONE SOLUTION; OR (G) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF,
OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY COMPANY DATA OR OTHER DATA/INFORMATION.
7.4 MAXIMUM LIABILITY – DIRECT DAMAGES. IN ALL EVENTS OR CIRCUMSTANCES TREND MICRO AND ITS SUPPLIERS (INCLUDING AZURE) AND LICENSORS LIABILITY TO COMPANY FOR 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, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), UNDER ANY CIVIL CODE, AND/OR ANY OTHER OR EQUITABLE OR LEGAL THEORY) ARISING FROM OR RELATED TO: (A) THESE TERMS OF USE; (B) THE RELATIONSHIP OF PARTIES; AND/OR (C) THE PROVISION, SUPPLY, AND/OR USE OF CLOUD ONE, A CLOUD ONE SOLUTION, UPDATES, AND/OR SUPPORT SERVICES, SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES OF ANY KIND OR NATURE 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 THE CLOUD ONE SOLUTION HEREUNDER, DURING THE TERM OF THESE TERMS OF USE (EITHER ONE (1) OR TWELVE (12) MONTHS) PURCHASED BY COMPANY.
8. Term and Termination.
8.1 Term; Auto-Renewal. These Terms of Use and Company’s right to access and use of a specific Cloud One Solution will become effective as of the date of the Order thereto is accepted and made available by Trend Micro to Company and shall continue in effect thereafter: (a) if such Cloud One Solution is provided under a custom metered pricing model Usage Metric, until such Cloud One Solution is cancelled by Company as permitted by Azure Terms and Policies; (b) if such Cloud One Solution is sold by monthly or annual subscription Usage Metric, until the purchased subscription term expires; or (c) if such Cloud One Solution is sold under a monthly or annual subscription Usage Metric with additional custom metered pricing elements, until the purchased subscription term expires (for each Cloud One Solution purchased hereunder, the “Term”), subject always to earlier termination by either Party of a Cloud One Solution in accordance with this Section 8, these Terms of Use, and/or any applicable Azure Terms and Policies. If Company has selected auto-renewal of a Cloud One Solution if and only where offered by Trend Micro, such renewal will be priced at the fees and subject to Trend Micro’s Terms of Use for the Cloud One Solution then-published on the Azure Marketplace.
8.2 Suspension and Termination by Trend Micro. In addition to any rights for suspension or termination that may be available to Azure under any applicable Azure Terms and Policies, Trend Micro may suspend or terminate Company’s right to one or more Cloud One Solutions at any time upon notice if Trend Micro determines that: (a) Company or one or more of its End Users of a Cloud One Solution is in violation of or non-compliance with any provision of the Acceptable Use Policy, or such persons could otherwise subject Trend Micro, its Affiliates, its licensors, suppliers (such as Azure), or any third party to liability, loss, or damages with respect thereto; and/or (b) Company is in material breach of these Terms of Use (for avoidance of doubt, Company's failure to pay any fees due for a Cloud One Solution on a timely basis will be deemed a material breach of these Terms of Use), and/or in breach of any applicable Azure Terms and Policies or Company no longer has an Azure Account. Company will cease use of a Cloud One Solution identified in such notice(s) during any period of suspension, or upon termination of these Terms of Use or other termination of Company’s right to use such Cloud One Solution. For any termination or suspension by Trend Micro in accordance with this Section 8.2, Trend Micro will not provide, or be liable for, any refund or proration of fees.
8.3 Termination by Company. Company may terminate these Terms of Use as to any impacted Cloud One Solution by giving notice if Trend Micro materially breaches these Terms of Use with respect to such Cloud One Solution and Trend Micro does not cure that breach within twenty (20) days after receiving notice of the alleged breach. Only if Company terminates these Terms of Use for an uncured material breach by Trend Micro, Company will be entitled to receive a refund from Trend Micro of the applicable unused fees (if any) pre-paid by Company for access to and use of such terminated Cloud One Solution.
8.4 Suspension and Termination by Azure. Company acknowledges that the Azure Terms and Policies may include rights in Azure to suspend and terminate Company’s Azure Account, which will suspend or terminate Company’s access to, and use of, each affected Cloud One Solution. In such event, Trend Micro will not provide, or be liable for, any refund, including fees pre-paid by Company for access to and use of such Cloud One Solutions.
8.5 Company’s Termination Duties. Upon expiration or termination of these Terms of Use and/or Company’s use of each Cloud One Solution for any reason or no reason, Company will: (a) cease use of and remove the affected Cloud One Solution (including any Enabling Software) from Company’s Azure Account and cease any access and use of such Cloud One Solution; and (b) irretrievably destroy all copies in Company’s possession or control of the Enabling Software and any User Documentation 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 remain unpaid.
8.6 Survival. Upon termination or expiration of these Terms of Use and regardless of reason therefor, the following Sections shall survive such termination or expiration: Sections 1, 2.1.2, 2.1.3, 2.2, 2.3, 2.4, 2.5, 2.6, 2.8, 3, 4, 6, 7, 8, 9, and 10 and any other provision that expressly states that its terms and conditions shall survive the expiration or termination of these Terms of Use.
9. Indemnity.
9.1 Trend Micro Indemnity.
9.1.1 IP Indemnity. Trend Micro (at its cost, including, without limitation, attorney, technical, and expert fees) will defend Company from each IP Claim and indemnify Company from the resulting costs and damages with respect to each such IP Claim finally awarded against Company that are specifically attributable to such IP Claim or those amounts agreed to by Trend Micro in a monetary settlement attributable to such IP Claim, subject always to the conditions, qualifications and limitations in this Section 9. The indemnity provided in this Section 9.1 for the benefit of Company states Trend Micro’s exclusive obligation and entire liability to Company and Company’s exclusive right and
remedy with respect to IP Claims. This indemnity is personal to Company and may not be assigned, transferred, or passed through to any third party. With respect to this Section 9.1, Trend Micro is the indemnitor Party and Company is the indemnitee Party.
9.1.2 Mitigation. Should Cloud One or any Cloud One Solution at any time become, or in Trend Micro’s opinion could become, the subject of an IP Claim, Trend Micro shall have the right, in its discretion and at its sole option to: (a) procure for Company the right to continue accessing and using Cloud One or any Cloud One Solution in accordance with these Terms of Use; or (b) modify Cloud One or Cloud One Solution such that it no longer is the subject of an IP Claim, while maintaining substantially the same functionality of the then-existing Cloud One or any Cloud One Solution. If both of these options are unreasonable in Trend Micro’s opinion, then on notice to Company, Trend Micro may, on written notice to Company, immediately terminate these Terms of Use and Company’s right to access or use Cloud One or any Cloud One Solution and promptly refund to Company, the unused fees (if any) pre-paid by Company for the remaining portion of the Ordered Term that is beyond such termination date.
9.2 Company Indemnity. Company (at its cost, including, without limitation, attorney, technical, and expert fees) will defend Trend Micro from each Trend Claim and indemnify Trend Micro from the resulting costs and damages with respect to each such Trend Claim finally awarded against Trend Micro that are specifically attributable to such Trend Claim or those amounts agreed to by Company in a monetary settlement of such Trend Claim, subject always to the conditions, qualifications and limitations in this Sections 9.2 and Section 9.3. The indemnity provided in this Section 9.2 for the benefit of Trend Micro states Company’s exclusive obligation and entire liability to Trend Micro and Trend Micro’s exclusive right and remedy with respect to Trend Claims. This indemnity is personal to Trend Micro and may not be assigned, transferred, or passed through for the benefit of any third party except as expressly stated herein in Section 10.11. With respect to this Section 9.2, Company is the indemnitor Party and Trend Micro is the indemnitee Party.
9.3 Conditions of Indemnification. The indemnification obligations of each indemnitor Party are subject to and conditioned on the indemnitee Party: (a) providing prompt written notice to the indemnitor Party of an IP Claim or Trend Claim (as the case may be); (b) tendering to the indemnitor Party of the sole and complete control and authority over the defense, negotiations, litigation and/or any settlement of the IP Claim or Trend Claim (as the case may be); (c) providing full and timely cooperation with the indemnitor Party and providing indemnitor Party with all reasonably requested information, cooperation and assistance at indemnitor Party’s expense; and (d) has not compromised or settled such IP Claim or Trend Claim (as the case may be). Indemnitee Party may participate in defense of the matter at its cost with counsel of its selection. Without indemnitee Party’s consent, indemnitor Party will not settle with respect to indemnitee Party, any IP Claim or Trend Claim (as the case may be) to the extent such settlement requires that indemnitee Party admit its liability or pay any money with respect to such IP Claim or Trend Claim (as the case may be). Indemnitor Party is not responsible for any costs, expenses, settlement, or compromise incurred or made by an indemnitee Party without indemnitor Party’s prior written approval.
10. General Provisions.
10.1 Assignment. Company will not assign (in whole or in part) these Terms of Use, or delegate or sublicense any of Company’s rights or obligations under these Terms of Use, without Trend Micro’s prior written consent. Any assignment or transfer in violation of this Section 10.1 will be void. In its sole discretion and without notice to Company, Trend Micro may assign these Terms of Use, including to any Trend Micro Affiliate. Subject to the foregoing, these Terms of Use will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
10.2 Interpretation. The headings within these Terms of Use are for convenience only and will not affect the interpretation of these Terms of Use. “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 of examples.
10.3 No Waivers. The failure by either Party to enforce any provision of these Terms of Use will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. To be effective, all waivers must be in writing, specifying the provision and actions or inactions being waived, and signed by the Parties.
10.4 Export/Import Control. In connection with these Terms of Use, the access, use, export or re-export of a Cloud One Solution and related technical data and services (collectively "Controlled Technology") is subject to Applicable Laws with respect to the export (including “deemed export” and “deemed re-export” regulations) and import of Controlled Technology by Company and/or its End Users. 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 and/or its End Users and/or the performance of Company and/or its End Users hereunder that: (1) requires a license to, or otherwise prohibits the, export, re-export, import, diversion, or disclosure of such Controlled Technology; (2) prohibits or restricts sale, use, or access to certain technology/goods/services, to specified countries, and/or by defined persons; or (3) 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 nor any of its End Users are under the control of, located in, or a resident or national of any country or region subject to any embargo or applicable trade sanction and are not a prohibited person or prohibited entity as defined in any Applicable Law.
10.5 Governing Law; Venue/Jurisdiction. The Parties agree that these Terms of Use (and any amendments, additions, renewals, supplements or modifications hereto) and any questions, disputes, claims, causes of action, and proceedings based on, arising out of, or related to, these Terms of Use, or its validity, interpretation, construction, or termination or the relationship, rights, duties, or performance of the Parties arising from or related in any way hereto, will be governed by and construed in accordance with the laws of the State of New York (USA) and controlling U.S. federal law applicable to agreements entered into and to be performed wholly therein, excluding its conflicts of laws principles and rules. These Terms of Use will not be interpreted or governed by the Uniform Computer Information Transactions Act (UCITA) or the United Nations Convention on Contracts for the International Sale of Goods, the application of each of which is hereby expressly excluded. 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 Use be drawn up in English and have also agreed that all notices or other documents required by or contemplated in these Terms of Use be written in English.
Les Parties ont exigé que ces conditions d'utilisation soient rédigées en anglais et ont également convenu que tous les avis ou autres documents exigés ou prévus dans les présentes conditions d'utilisation soient rédigés en anglais.
10.6 Government Agency Use. Each Cloud One Solution (including any component software) and accompanying User Documentation 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 user documentation with the same rights and restrictions generally applicable to each Cloud One Solution. Access and use of a Cloud One Solution by any Government Agency may be subject to mandatory applicable laws; provided, however, 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 One. If any Government Agency requires or needs greater or different rights in or to access and/or use Cloud One other than those rights that are granted in these Terms of Use, the Parties will discuss such additional requirements and the additional fees/charges applicable thereto, and if additional or different rights are agreed, the parties will enter into a specific written agreement with respect thereto. In this Section 10.6, “Government Agency” shall mean a national, federal, provincial, state, municipal, and/or local agency or entity that Orders through the Azure Marketplace for the right to access/use a Cloud One Solution under these Terms of Use.
10.7 Notices.
10.7.1 If to Company. Trend Micro may provide any notice to Company under these Terms of Use by: (a) posting a notice on https://success.trendmicro.com/technical-support (the “Trend Micro Site”); or (b) sending a message to the email address then associated with Company’s Cloud One account with Trend Micro. Notices Trend Micro provides by posting on the Trend Micro Site will be effective upon posting and notices that Trend Micro provides by email will be effective when Trend Micro sends the email. It is Company’s responsibility to keep Company’s email address current.
10.7.2 If to Trend Micro. To give Trend Micro notice under these Terms of Use, Company must contact Trend Micro as follows: (a) by email to legal_notice@trendmicro.com; and (b) by personal delivery, overnight courier or registered or certified mail to Trend Micro Incorporated, 225 E. John Carpenter Frwy., Suite 1500, Irving, TX 75062 to the attention of President with a copy to the General Counsel. Trend Micro may update the email or mailing address for notices by posting a notice on the Trend Micro Site. Notices provided by personal delivery will be effective immediately. Notices provided by email or overnight courier will be effective one (1) business day after they are sent. Notices provided registered or certified mail will be effective three (3) business days after they are sent.
10.8 Severability; Enforcement. The Parties agree that the unenforceability or invalidity of any term or provision of these Terms of Use shall not impair the enforceability or validity of any other part of these Terms of Use. In the event that any term or provision of these Terms of Use conflicts with the governing law under which these Terms of Use is to be construed or if any such term or provision is held invalid or unenforceable in whole or in part by a court with jurisdiction over the Parties, the Parties agree that the court making such determination shall have the power, and the Parties hereby request that such court exercise such power, to modify, amend, or restate any such unenforceable term or provision of these Terms of Use in lieu of severing such unenforceable term or provision in its entirety, whether by rewriting the offending term or provision, deleting any or all of the offending term or provision, adding additional language to these Terms of Use, or by making such other modifications as it deems appropriate that is valid and enforceable that and that comes closest to expressing the original intention of the Parties to the greatest lawful extent under these Terms of Use.
10.9 Excused Performance Events. Trend Micro shall not be liable for any delay or failure to perform its non-monetary obligations hereunder, if any, due to any Excused Performance Event. If Trend Micro is affected by such an Excused Performance Event, Trend Micro will (a) take commercially reasonable steps to minimize and/or mitigate any delays or failures related to any Excused Performance Event; (b) provide prompt written notice to Company of the nature of such Excused Performance Event and the expected duration thereof; (c) make reasonable efforts that are consistent with accepted practices in the industry to resume performance as soon as practicable under the circumstances and mitigate the effects of the Excused Performance Event; and (d) resume performing its obligations hereunder promptly following the removal or reasonable circumvention of such Excused Performance Event. This Section does not excuse Trend Micro’s obligation to take reasonable steps to follow its normal disaster recovery procedures. The Parties agree that any delay or failure arising from or related to an Excused Performance Event shall not constitute a breach of this Agreement.
10.10 Independent Contractors. Nothing in these Terms of Use 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 its Affiliates.
10.11 Third Party Beneficiaries. All disclaimers, limitations of damages and remedies, and exclusions and limitations of liabilities in these Terms of Use (including, without limitation, Section 7) that are applicable to Trend Micro also extend to and apply in respect of Trend Micro’s Affiliates, suppliers (including Azure), resellers, and licensors as third party beneficiaries and Azure and its Affiliates are specifically-named third party beneficiaries under Section 1.1.4 and Section 2.8 of these Terms of Use. Except as set forth herein this Section, these Terms of Use 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), or otherwise. Except as set forth in the first sentence of this Section, these Terms of Use do not, and shall not be deemed to, 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.