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Thỏa thuận và điều khoản sử dụng phần mềm Intel McAfee
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BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THIS SOFTWARE CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF CUSTOMER IS ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS AND WARRANTS THAT CUSTOMER HAS FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS.
IF CUSTOMER DOES NOT AGREE TO THESE TERMS;
- DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE SOFTWARE; AND
- PROMPTLY RETURN THE SOFTWARE AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM CUSTOMER ACQUIRED THEM
a) “Authorized Partner” means any of McAfee’s distributors, resellers or other business partners.
b) “Grant Letter” means a confirmation notice letter issued electronically by McAfee to Customer confirming Software and Support purchased by Customer including the applicable product entitlement, as defined in the Product Entitlement Definitions (further described at Section 3(a) below) and also contains download details.
c) “Documentation” means explanatory materials in printed, electronic, or online form accompanying the Software in English and other languages if available.
d) “McAfee” means (a) McAfee, Inc., a Delaware corporation, with offices located at 2821 Mission College Blvd., Santa Clara, California 95054, USA if the Support is purchased in the United States, Mexico, Central America, South America, or the Caribbean; (b) McAfee Ireland Limited, with offices located at Building 2000, City Gate, Mahon, Cork, Ireland, if the Support is purchased in Canada, Europe, the Middle East, Africa, Asia (other than Japan), or Oceania; and (c) McAfee Co., Ltd. with offices located at Shibuya Mark City West Building 12-1, Dogenzaka 1-Chrome, Shibuya-ku, Tokyo 150-0043, Japan if the Support is purchased in Japan.
e) “Node” means any kind of device capable of processing data and includes any of the following types of computer devices: diskless workstations, personal computer workstations, networked computer workstations, homeworker/teleworker home-based systems, file and print servers, email servers, Internet gateway devices, storage area network servers (SANS), terminal servers, or portable workstations connected or connecting to the server(s) or network.
f) “Software” means each McAfee software program in object code format licensed by McAfee and purchased from McAfee or its Authorized Partners, including Upgrades.
g) “Subsidiary” refers to any entity controlled by Customer through greater than fifty percent (50%) ownership of the voting securities.
h) “Support” or “Technical Support” means the support services offered by McAfee for the support and maintenance of the Software and McAfee brand hardware further specified in the McAfee Technical Support and Maintenance Terms.
i) “Updates” are related to content and include without limitation all DATs, signature sets, policy updates, database updates for the Products which are made generally available to McAfee’s customer base as a part of purchased Support and which are not separately priced or marketed by McAfee.
j) “Upgrade” means any and all improvements in the Software which are made generally available to McAfee’s customer base as a part of purchased Support and which are not separately priced or marketed by McAfee.
2) License Grant
Subject to the terms and conditions of this Agreement, McAfee hereby grants Customer a non-exclusive, non-transferable right to use the Software (for the purpose of this Agreement, use of the Software means to access, install, download, copy or otherwise benefit from using the Software) listed in the Grant Letter solely for Customer’s own internal business operations. Customer acknowledges that the Software and all related information are proprietary to McAfee and its suppliers. Customer is not granted rights to Updates and Upgrades unless Customer has purchased Support or a service subscription.
3) Copy and Use terms
a) Product entitlement. The use of the Software depends on the licenses purchased (e.g. Nodes) and is subject to the Product Entitlement Definitions set forth at http://www.mcafee.com/us/local_content/legal/product_entitlement_definitions.pdf on the applicable date of Customer’s Grant Letter.
b) Multiple platforms/ Bundles. If the Software supports multiple platforms or if Customer receives the Software bundled with other software, the total number of devices on which all versions of the Software is installed may not exceed Customer’s product entitlement. Certain Software licensed as part of a suite-based McAfee product may Corporate End User Licence Agreement Page 2 of 5 (January 2013)also require the purchase of a separate McAfee server license in order to use the Software on certain types of servers, in each case as specified in the Documentation.
c) Term. The license is effective for a limited time period (“Term”) in the event that such Term is set forth in the Grant Letter, otherwise the licenses shall be perpetual.
d) Copies. Customer may copy the Software as reasonably necessary for backup, archival or disaster recovery purposes.
e) Subsidiaries. Customer may permit use of the Software in accordance with the terms of this Agreement by a Subsidiary only for so long as such entity remains Customer’s Subsidiary. Customer shall be responsible and fully liable for each Subsidiary’s compliance with or breach of the terms of this Agreement.
f) Managing Party. If Customer enters into a contract with a third party in which the third party manages Customer’s information technology resources (“Managing Party”), Customer may transfer all of its rights to use the Software to such Managing Party, provided that (a) the Managing Party only uses the Software for Customer’s internal operations and not for the benefit of another third party or the Managing Party; (b) the Managing Party agrees to comply with the terms and conditions of this Agreement, and (c) Customer provides McAfee with written notice that a Managing Party will be using the Software on Customer’s behalf.
g) General Restrictions. Customer may not, nor allow any third party to: (i) decompile, disassemble, or reverse engineer the Software, except to the extent expressly permitted by applicable law, without McAfee’s prior written consent; (ii) remove any product identification or proprietary rights notices of the Software or Documentation; (iii) lease, lend, or use the Software for timesharing or service bureau purposes; (iv) modify or create derivative works of the Software, (v) except with McAfee’s prior written permission, publish any performance or benchmark tests or analysis relating to the Software; or (vi) otherwise use or copy the Software except as expressly provided herein.
4) Technical Support and Maintenance
The McAfee Technical Support and Maintenance Terms apply if Customer has purchased Support. The McAfee Technical Support and Maintenance Terms are incorporated by reference and can be found at http://www.mcafee.com/us/resources/misc/mfe-techsupport-terms.pdf. After the support or service subscription period specified in a Grant Letter has expired, Customer has no further rights to receive any Support including Upgrades, Updates, and telephone support.
5) Limited Warranty and Disclaimer
a) Limited Warranty. McAfee warrants that, when at the purchase date, and for a period of sixty (60) days thereafter (“Warranty Period”), the Software licensed hereunder (including Upgrades provided within the Warranty Period for the remainder of the Warranty Period) will perform substantially in accordance with the Documentation.
b) Exclusive Remedy. In case of any breach of the above limited warranty, McAfee will (a) repair or replace the Software or (b) if such repair or replacement would in McAfee’s opinion be commercially unreasonable, refund the price paid by Customer for the applicable Software.
c) Exclusion of Warranty. The above Limited Warranty will not apply if: (i) the Software is not used in accordance with this Agreement or the Documentation; (ii) the Software or any part thereof has been modified by any entity other than McAfee; or (iii) a malfunction in the Software has been caused by any equipment or software not supplied by McAfee.
d) Disclaimer. THE ABOVE WARRANTIES ARE CUSTOMER’S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. Except for the limited warranty set forth above, THE SOFTWARE IS PROVIDED "AS IS" AND MCAFEE MAKES NO WARRANTY OR GUARANTEE AS TO ITS USE OR PERFORMANCE AND DOES NOT WARRANT OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE FAIL SAFE, UNINTERRUPTED OR FREE FROM ERRORS OR DEFECTS OR THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS.
e) Exceptions. Some states or jurisdictions do not allow the exclusion of express or implied warranties, so the above disclaimer may not apply to Customer. IN THAT EVENT SUCH EXPRESS OR IMPLIED WARRANTIES SHALL BE LIMITED IN DURATION TO THE WARRANTY PERIOD (OR THE MINIMUM PERIOD REQUIRED BY THE APPLICABLE LAW).
6) Limitation of Remedies and Damages
Under no circumstances and under no legal theory, whether in tort, contract or otherwise, shall either party be liable to the other for any indirect, special, incidental or consequential damages, damages for loss of profits, loss of goodwill, loss of personnel salaries, work stoppage, and/or computer failure or malfunction, and/or costs of procuring substitute software or services.Corporate End User Licence Agreement Page 3 of 5 (January 2013)Regardless of whether the claim for such damages is based in contract, tort and/or any other legal theory, in no event shall either party’s aggregate liability to the other party for direct damages exceed the lesser of:
a) the amount of total fees paid or payable by Customer for the Software giving rise to such claim during the 12 months immediately preceding the event giving rise to such claim, or
b) the applicable McAfee list price, at the date of the purchase, for the Software giving rise to such claim ordered by Customer during the 12 months immediately preceding the event giving rise to such claim, even if the other party has been advised of the possibility of such damages.
No provision of this Agreement shall exclude or limit in any way (i) the liability of either party for death or personal injury caused by negligence, or (ii) Customer’s liability for excess usage of, and/or any breach of McAfee’s intellectual property rights in the Software.
The limitation of liability in this section IS based on the fact that END USERS use their computers for different purposes. Therefore, only CUSTOMER can implement back-up plans and safeguards appropriate to Customer’s needs in the event an error in the Software causes computer problems and related data losses. For these business reasons CUSTOMER agrees to the limitations of liability in this section and acknowledge that without CUSTOMER agreement to this provision, the fee charged for this Software would be higher.
7) Intellectual Property Indemnity
a) Third party claims. McAfee shall defend and hold Customer harmless from any claim by a third party that the Software infringes any patent, copyright or trade secret of that third party, provided: (i) McAfee is notified promptly, and in any event no later than within 14 days upon Customer receipt of notice of the claim; (ii) McAfee receives reasonable cooperation from Customer necessary to perform McAfee’s obligations hereunder; and (iii) McAfee has sole control over the defense and all negotiations for a settlement or compromise of the claim. The foregoing obligation of McAfee does not apply with respect to Software or portions or components thereof: (i) not supplied by McAfee; (ii) used in a manner not expressly authorized by this Agreement or the relevant Documentation (iii) made in accordance with Customer’s specifications; (iv) modified by anyone other than McAfee, if the alleged infringement relates to such modification; (v) combined with other products, processes or materials where the alleged infringement would not exist but for such combination; or (vi) where Customer continues the allegedly infringing activity after being notified thereof and provided with modifications that would have avoided the alleged infringement
b) Remedy and Liability. In the event the Software is held by a court of competent jurisdiction to constitute an infringement or use of the Software is enjoined, McAfee shall, at its sole option, do one of the following: (i) procure the right to continue use of the Software; (ii) Remedy and Liability. In the event the Software is held by a court of competent jurisdiction to constitute an infringement or use of the Software is enjoined, McAfee shall, at its sole option, do one of the following: (i) procure the right to continue use of the Software; (ii) This Section 7 states McAfee’s sole liability and Customer’s exclusive remedy for intellectual property infringement claims
Without prejudice to Customer’s payment obligations, Customer may terminate Customer’s license at any time by de-installing the Software. McAfee may terminate Customer’s license in the event Customer materially breach the terms of this Agreement and Customer fails to cure such breach within thirty (30) days of receiving notice of such breach. Upon such termination Customer shall promptly return or destroy all copies of the Software and Documentation
9) Additional Terms
a) Evaluation Software. If the Software has been identified as “Evaluation Software”, then the provisions of this section apply and shall supersede any other conflicting term of this agreement. Customer’s royalty free, non-transferable, limited license to use the Evaluation Software, for evaluation purposes only, is limited to thirty (30) days unless otherwise agreed to in writing by McAfee. The Evaluation Software may contain errors or other problems that could cause system or other failures and data loss. Consequently, Evaluation Software is provided to Customer "AS-IS", and McAfee disclaims any warranty or liability obligations of any kind. Any information about the Evaluation Software gathered from its use shall be used solely for evaluation purposes only and shall not be provided to any third parties. The restrictions described in Section 3 g) apply. If Customer fails to destroy the Evaluation Software after the evaluation period has expired, McAfee may, at its discretion, invoice Customer in an amount equal to the McAfee List Price for the Evaluation Software and Customer shall pay such invoice upon receipt. WHERE LEGAL LIABILITY CANNOT BE EXCLUDED, BUT MAY BE LIMITED, MCAFEE’S LIABILITY AND THAT OF ITS SUPPLIERS AND AUTHORIZED PARTNERS SHALL BE LIMITED TO THE SUM OF FIFTY (50) DOLLARS OR THE EQUIVALENT IN LOCAL CURRENCY IN TOTAL.Corporate End User Licence Agreement Page 4 of 5 (January 2013)
b) Beta Software. If the Software received has been identified “Beta” Software, then the provisions of Section 9(a) above shall apply accordingly. McAfee has no obligation to further develop or publicly release the Beta Software. If requested by McAfee, Customer will provide feedback to McAfee regarding testing and use of the Beta Software, including error or bug reports. Customer agrees to grant McAfee a perpetual, non-exclusive, royalty-free, worldwide license to use, copy, distribute, make derivative works and incorporate the feedback into any McAfee product at McAfee’s sole discretion. Upon receipt of a later unreleased version of the Beta Software or release by McAfee of a publicly released commercial version of the Beta Software Customer agrees to return or destroy all earlier Beta Software received from McAfee
c) “Free” or “Open Source” Software. The product may include programs or code that are licensed under an Open Source Software (“OSS”) license model. OSS programs and code are subject to the terms, conditions and obligations of the applicable OSS license, and are SPECIFICALLY EXCLUDED FROM ALL WARRANTY AND SUPPORT OBLIGATIONS DESCRIBED ELSEWHERE IN THIS AGREEMENT.
10) Notice to United States Government End Users
The Software and accompanying Documentation are deemed to be "commercial computer software" and "commercial computer software documentation," respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government shall be governed solely by the terms of this Agreement and
shall be prohibited except to the extent expressly permitted by the terms of this Agreement.
11) Privacy; Collection of Personal or System Information
a) The Software, Support or service subscription may employ applications and tools to collect personally identifiable, sensitive or other information about Customers and users (e.g., including, without limitation, Customer and users’ name, address, e-mail address and payment details), their computers, files stored on their computers, or their computers’ interactions with other computers (e.g., including, without limitation, information regarding network, licenses used, hardware type, model, hard disk size, CPU type, disk type, RAM size, 32 or 64 bit architecture, operating system types, versions, locale, BIOS version, BIOS model, total scanners deployed, database size, system telemetry, device ID, IP address, location, content, McAfee products installed, McAfee components, processes and services information, frequency and details of update of McAfee components, information about third party products installed, extracts of logs created by McAfee, usage patterns of McAfee products and specific features, etc.) (collectively, “Data”).
b) The collection of this Data may be necessary to provide Customers and users with the relevant Software, Support or service subscription functionalities as ordered (e.g., including, without limitation, detecting and reporting threats and vulnerabilities on Customer’s and users’ computer network), enable McAfee to improve our Software, Support or service subscription (e.g., including, without limitation, content synchronization, device tracking, troubleshooting, etc.) and to further or improve overall security for Customer and users. Customer may be required to uninstall the Software or disable Support or its service subscription to stop further Data collection that supports these functions.
McAfee may, at its expense, upon reasonable prior written notice to Customer and during standard business hours, audit Customer with respect to Customer’s compliance with the terms of this Agreement no more than once per year. Customer understands and acknowledges that McAfee utilizes a number of methods to verify and support software use by its customers. These methods may include technological features of the Software that prevent unauthorized use and provide Software deployment verification. Upon reasonable request, Customer will provide a system generated report verifying Customer’s Software deployment, such request to occur no more than two (2) times per year. McAfee will not unreasonably interfere with the conduct of Customer’s business.
13) Export Controls
Customer acknowledges that the Software is subject to U.S. and when applicable, European Union export regulations. Customer shall comply with applicable export and import laws and regulations for the jurisdiction in which the Software will be imported and/or exported. Customer shall not export the Software to any individual, entity or country prohibited by applicable law or regulation. Customer is responsible, at Customer’s own expense, for any local government permits, licenses or approvals required for importing and/or exporting the Software. For additional information regarding Corporate End User Licence Agreement Page 5 of 5 (January 2013) exporting and importing the Software, see http://mcafee.com/us/about/export_compliance/index.html. McAfee reserves the right to update this website from time to time at its sole discretion.
14) Governing Law
This Agreement will be governed by and construed in accordance with the substantive laws in force in the State of New York. This Agreement will not be governed by the conflict of laws rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The Uniform Computer Information Transactions Act as enacted shall not apply. Jurisdiction - The United States District Court for the Southern District of New York and the State Courts in New York County, New York.
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 and of substantial value to the other Party, which value could be impaired if such information were disclosed to third parties (“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 in any way for its own account or the account of any third party, such Confidential Information, except as authorized under this Agreement, and will protect Confidential Information at least to the same extent as it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information. Neither Party may use the other Party’s Confidential Information except to perform its duties under this Agreement. The Confidential Information restrictions will not apply to Confidential Information that is (i) already known to the receiving Party, (ii) becomes publicly available through no wrongful act of the receiving Party, (iii) independently developed by the receiving Party without benefit of the disclosing Party’s Confidential Information, (iv) has been rightfully received from a third party not under obligation of confidentiality or (v) 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 adequate for the owning Party to take reasonable action to prevent such disclosure, where reasonably possible. Unless otherwise agreed to by both Parties, upon termination of this Agreement or an applicable Addendum, each Party will return the other Party’s Confidential Information.
a) Except for actions for nonpayment or breach of McAfee’s proprietary rights in the Software and Documentation, no action, regardless of form, arising out of this Agreement may be brought by either party more than 2 years after a party knew or should have known of the claim.
b) Any terms of this Agreement which by their nature should survive the termination of this Agreement shall survive such termination.
c) This Agreement, including all documents incorporated by reference, represents the entire agreement between the parties, and expressly supersedes and cancels any other communication, representation or advertising whether oral or written, on the subjects herein. If Customer issues an order to an Authorized Partner or to McAfee and the terms and conditions of the order conflict with the terms and conditions of a) this Agreement or b) of the Grant Letter, then
the terms and conditions specified in this Agreement and in the Grant Letter shall control. This Agreement may not be modified except by a written addendum issued by a duly authorized representative of McAfee. No provision hereof shall be deemed waived unless such waiver shall be in writing and signed by McAfee. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect.
d) All notices, requests, demands, and determinations for McAfee under this Agreement (other than routine operational communications) shall be sent to the applicable entity address on the first page of this Agreement addressed to “Attention: Legal Department”.
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