TREND MICRO GRID PROGRAM
TERMS AND CONDITIONS
THE FOLLOWING TERMS AND CONDITIONS (“TERMS AND CONDITIONS”) APPLY TO PARTICIPANTS OF THE TREND MICRO GOODWARE RESOURCE AND INFORMATION DATABASE PROGRAM (THE “GRID PROGRAM”). BY PARTICIPATING IN THE GRID PROGRAM, YOU, AS AN AUTHORIZED REPRESENTATIVE OF AN ENTITY, AND ON BEHALF OF SUCH ENTITY (“PARTNER”), AGREE TO THESE TERMS AND CONDITIONS.
1. Partner Software and Trend Micro Products or Services
1.1 Partner will provide to Trend Micro via HTTP or FTP or such other method as prescribed by Trend Micro certain files relating to its software (“Partner Software”) solely for use as set forth in the Trend Micro GRID Program.
1.2 During the Term, Partner grants to Trend Micro and its Affiliates a worldwide, royalty-free, perpetual, non-transferable, non-exclusive, non-sublicensable (except as set forth in Section 1.3) license to use portions of the Partner Software solely so that the Trend Micro products or services do not detect or identify the Partner Software as, or containing, suspicious or malicious code (the “Purpose”). Except as expressly set forth in this Section 1, Trend Micro may not transfer, sublicense, assign or distribute the Partner Software to any third party and/or for other than the Purpose without Partner’s prior written consent. For purposes of these Terms and Conditions, “Affiliates” means any corporation, company, subsidiary or other entity, which: (i) is currently controlled by a party; or (ii) currently controls a party; or (iii) is currently under common control with a party; “controlled” or “control(s)” means the direct or indirect ownership of more than fifty percent (50%) of the shares or interests entitled to vote for the directors of such party or the equivalent, for so long as such entitlement exists, or equivalent power over management.
1.3 If a Trend Micro product or service detects Partner Software as, or containing, malicious or suspicious code, Trend Micro and Partner will use commercially reasonable efforts to promptly address the situation. Partner shall promptly cooperate with Trend Micro and address any Trend Micro concerns relating to the Partner Software before removal by Trend Micro of the detection by Trend Micro products or services of the Partner Software as, or containing, malicious or suspicious code.
1.4 Trend Micro is and shall remain the sole and exclusive owner of and will retain all right, title, and interest, including all intellectual property rights, in and to the Trend Micro products or services.
1.5 Partner is and shall remain the sole and exclusive owner of and will retain all right, title, and interest, including all intellectual property rights, in and to the Partner Software. Except for the specific licenses granted in Section 1.2, Partner grants to Trend Micro no other licenses or rights with respect to the Partner Software.
1.6 Trend Micro reserves the right to change, update or modify these Terms and Conditions and to impose rules, policies, terms or conditions on Partner’s participation in the Trend Micro GRID Program. Trend Micro will use reasonable efforts to provide notice of material changes to the Trend Micro GRID Program or changes to the Terms and Conditions of this Agreement (referred to in this Agreement as “Additional Terms”) by emailing Partner at the address provided to Trend Micro and/or by posting the Additional Terms on Trend Micro’s main Website, www.trendmicro.com. It is the Partner’s responsibility to routinely visit Trend Micro’s Website to review such Additional Terms. Additional Terms, which may be made at Trend Micro’s sole and exclusive discretion, will be effective upon acceptance of this Agreement (as described herein) for new Partners and effective for all existing Partners thirty (30) calendar days after the posting of the Additional Terms on Trend Micro’s Website. If Partner does not agree to the Additional Terms, Partner may terminate this Agreement in accordance with Section 3 of this Agreement. Partner’s continued participation in the GRID Program following the publication or posting of such Additional Terms will be deemed to constitute acceptance of any and all such Additional Terms.
2. Representations and Warranties, Limitations & Indemnification
2.1 Partner represents and warrants that (i) it has the full right and power and is free to enter into and fully perform under the GRID Program; (ii) its performance of any obligations under the GRID Program will not conflict with or violate any other license, agreement or commitment by which Partner is bound; and (iii) it will perform its obligations under the GRID Program in a professional, diligent and competent manner and comply with all applicable laws and regulations.
2.2 Partner represents and warrants it will use commercially reasonable efforts to ensure the Partner Software provided to Trend Micro does not have any viruses, worms or other intentionally harmful code, or contains personally identifiable information or personal data.
2.3 TREND MICRO MAKES NO WARRANTIES OR REPRESENTATIONS OR CONDITIONS WHATSOEVER, EXPRESS OR IMPLIED, ORAL OR WRITTEN, IN CONNECTION WITH THE GRID PROGRAM, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
2.4 TREND MICRO WILL NOT BE LIABLE TO PARTNER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES ARISING OUT OF THIS GRID PROGRAM, WHETHER LIABILITY IS ASSERTED IN CONTRACT OR TORT, AND REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS AND CONDITIONS, IN NO EVENT SHALL TREND MICRO’S TOTAL LIABILITY TO PARTNER IN CONNECTION WITH, ARISING OUT OF OR RELATING TO THE GRID PROGRAM, EXCEED USD$5,000.
2.5 Partner agrees to indemnify and hold harmless, and pay the reasonably related costs and fees of, Trend Micro, its parent company, its Affiliates, and their respective officers, directors, employees, agents, shareholders, representatives and independent contractors from and against any unaffiliated third party claims that arise out of or in connection with any actual or alleged breach of the Terms and Conditions of the GRID Program by Partner.
3. Termination
3.1 A Partner’s participation in the GRID Program will commence on the date of its online registration and will remain in effect unless and until terminated earlier as provided in this Section (the “Term”).
3.2 Partner may cease to participate in the GRID Program by giving thirty (30) days’ prior written notice to Trend Micro.
3.3 Trend Micro may terminate a Partner’s participation in the GRID Program for any reason by giving Partner thirty (30) days’ prior written notice. Trend Micro may also terminate immediately a Partner’s participation in the GRID Program in the event of a Partner’s material breach or non-compliance with the Terms and Conditions of the GRID Program.
3.4 Trend Micro may at its sole option immediately discontinue or terminate the GRID Program upon notice to Partner.
3.5 Upon termination of Partner’s participation in the GRID Program or termination or discontinuation of the GRID Program, each party will promptly return any Confidential Information of the other party in its possession.
3.6 In the event of any termination, Sections 1.2, 1.5, 2, 3.5, 3.6 and 4 will survive in accordance with their terms.
4. Miscellaneous
4.1 Each party will protect the other party’s Confidential Information that it receives in connection with the GRID Program from unauthorized dissemination and shall take all reasonable measures to avoid disclosure, dissemination or unauthorized use of the other party’s Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature. Neither party will use the other party’s Confidential Information for purposes other than those necessary to directly further the Purposes of the GRID Program. Except as expressly provided under the GRID Program, neither party will disclose to third parties the other party’s Confidential Information without the prior written consent of the other party. Except as expressly provided herein, no ownership or license rights are granted to a party in any Confidential Information of the other party. Notwithstanding any other provision, a party may disclose the other party’s Confidential Information to the extent required by applicable laws or court order; provided, however, that before making any such required filing or disclosure, such party will first give written notice of the intended disclosure to the other party and cooperate in seeking to obtain any available confidential treatment for the same. For purposes of these Terms and Conditions, “Confidential Information” means: any trade secrets and/or other non-public information, in print or electronic form or disclosed orally, that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential, including, without limitation, non-public information relating to a party’s products, services, customers, web sites, product plans, designs, costs, prices or names, finances, marketing plans, business opportunities, personnel, research, development or know-how. “Confidential Information” does not, however, include information that: (i) is or becomes generally known or available by publication, commercial use or otherwise through no fault of the other party; (ii) is known and has been reduced to tangible form by a party prior to the time of disclosure and is not subject to restriction on disclosure; (iii) is independently developed by party without the use of the other party’s Confidential Information; (iv) is lawfully obtained from a third party that has the right to make such disclosure; or (v) is made generally available without restriction on disclosure.
4.2 These Terms and Conditions of the GRID Program will be construed in accordance with, and all disputes hereunder will be governed by, the laws of Japan, excluding that body of law known as conflict of laws. The Convention on Contracts for the International Sale of Goods will not apply to these Terms and Conditions.
4.3 The relationship of Partner and Trend Micro is that of independent contractors. The GRID Program does not give Partner the power to direct the day to day activities of Trend Micro, constitute Partner and Trend Micro as partners, joint venturers, co-owners or principal-agent, or allow Partner to create or assume any obligation on behalf of Trend Micro.
4.4 Partner shall not be entitled to assign, subcontract or otherwise dispose of its rights and be released from its obligations under the GRID Program without the prior written consent of Trend Micro.
4.5 If any provision of these Terms and Conditions is determined by a court to be unenforceable, then the parties shall deem the provision to be modified to the extent necessary to allow it to be enforced to the extent permitted by law, or if it cannot be modified, the provision will be deleted from these Terms and Conditions and the remainder of the Terms and Conditions will continue in effect.
4.6 These Terms and Conditions contain the entire understanding between Partner and Trend Micro with respect to GRID Program and supersedes all and any prior understandings, undertakings and promises between Partner and Trend Micro, whether oral or in writing.
