Terms and Conditions : TrendMicro

These terms of use for Phish Insight are valid as of March 2024

1. Introduction

1.1 Please read the following Terms of Use carefully.

1.2 In these Terms of Use:

(a) "Trend Micro" "we", "our" and "us" means Trend Micro Incorporated a company registered in the United States of America with company registration number C1919248. Our registered office is at 225 E John Carpenter Freeway, Suite 1500, Irving, TX 75062.

(b) "Company" means the entity that is licensed to use and/or has placed an order for the service licensed by us and accessible from http:// https://phishinsight.trendmicro.com and its subdomains (the "Tool").

1.3 These Terms of Use set out the terms and conditions on which we agree to license and Company agrees to access and use the Tool.

1.4 Definitions: The following defined terms shall apply in these Terms of Use:

1.4.1 “Affiliate” means any entity that controls, is controlled by, or is under common control with, a Party to these Terms of Use, but only for as long as such ownership relationship continues to exist. “Control” and its derivatives means: (a) the legal, beneficial, or equitable ownership, directly or indirectly, of at least fifty percent (50%) of the aggregate of all voting equity interests in an entity; (b) the right to direct an entity’s affairs; and/or (c) the absolute right to control the composition of an entity’s board of directors or equivalent management/policy body. Upon request, each Party agrees to confirm in writing to the other Party, the status of any or all Affiliates.

1.4.2 “Data Processing Addendum” or “Addendum” means Trend Micro’s Data Processing Addendum (at trendmicro.com/dpa or as may be requested by Company from [email protected]) that is applicable if and to the extent Trend Micro acts as a ‘Processor’ or ‘sub- Processor’ for Company’s Personal Data. The Parties agree that the Data Processing Addendum is 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.

1.4.3 “Data Protection Law”" means all laws applicable (in whole or in part) to a Party's Processing of Personal Data under or in connection with these Terms of Use including, as may be applicable, European Data Protection Law, as introduced, amended or superseded from time to time.

1.4.4 “Data Subject” means an identified or identifiable natural person whose Personal Data is accessed by Trend Micro in connection with these Terms of Use.

1.4.5 “European Data Protection Law” means: (a) Regulation 2016/679 (General Data Protection Regulation) (the "EU GDPR"); (b) the EU e-Privacy Directive (Directive 2002/58/EC); (c) the EU GDPR as it is saved and incorporated into UK law by virtue of section 3 of the European Union (Withdrawal) Act 2018 (the "UK GDPR"); (d) the Privacy and Electronic Communications (EC Directive) Regulations 2003 as they continue to apply in the UK under section 2 of the European Union (Withdrawal) Act 2018; and (e) any and all applicable national data protection laws made under, pursuant, supplemental to or in order to give effect to (a) – (d); in each case as may be amended or superseded from time to time. The following terms shall have the meanings given to them in European Data Protection Laws: "Controller", "Data Protection Impact Assessment", "Data Subject", "Process", "Processed", "Processing", "Processor".

1.4.6 “European Personal Data” shall mean Personal Data if and only to the extent that European Data Protection Law applies to Trend Micro with respect to its Processing of such Personal Data.

1.4.7 “GDPR” means EU GDPR and/or the UK GDPR, as applicable.

1.4.8 “Global Privacy Notice” means Trend Micro’s Global Privacy Notice published from time-to-time at https://www.trendmicro.com/en_us/about/legal/privacy-policy-product.html or as may be requested by Company from [email protected].

1.4.9 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 that is made available or supplied by Company (including Company’s employees, contractors and other users of the Tool) to Trend Micro pursuant to these Terms of Use and any Personal Data generated or derived in relation to such Personal Data such as logs, but only if and to the extent such data elements are regulated, protected, restricted, or controlled under applicable Data Protection Laws

1.4.10 “Standard Contractual Clauses” or “Clauses” means: (i) where the EU GDPR applies, the contractual clauses annexed to the European Commission's Implementing Decision 2021/914 of 4 June 2021 on standard contractual clauses for the transfer of Personal Data to third countries pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council ("EU SCCs"); and (ii) where the UK GDPR applies, standard data protection clauses adopted pursuant to or permitted under Article 46 of the UK GDPR ("UK SCCs").

2. Acceptance of the Terms of Use

2.1 By using the Tool, ticking the tick-box during the sign-up process or placing an order for the Tool Company agree to be legally bound by these Terms of Use. Company also confirms that it has read our Data Processing Addendum and our Global Privacy Notice and understand how we will process its Personal Data where we act as a data processor.

2.2 If Company does not agree with these Terms of Use or to our use of its Personal Data as set out in Data Processing Addendum and our Global Privacy Notice Company should not use the Tool.

3. Amendments to Terms of Use

3.1 The date at the top of this webpage indicates when these Terms of Use were last updated. We may amend these Terms of Use from time to time. If we do, we will publish the changes on our website and will also notify you of the updated Terms of Use the next time you access the Tool.

4. Account and password security

4.1 We will provide access to the Tool using a username and password system. Company must ensure that it has appropriate security measures in place to ensure that:

(a) any username and password that we allocate to Company is used only by Company; and

(b) the security and confidentiality of Company’s username and password is maintained at all times and not disclosed whether to other individuals within Company’s organisation, or to any third parties.

4.2 Company shall not leave any session where it is using the Tool unattended and shall be responsible for all use that occurs under its account, regardless of whether any such use is by Company or by unauthorised third parties.

4.3 Company agrees to immediately notify us of any or any suspected unauthorised use of your account for use of the Tool or of any or any suspected other breach of security. We cannot and will not be liable for any loss, damage or other liability arising from Company’s failure to comply with this Clause 4 or from any unauthorised access to or use of Company’s account.

5. Company’s right to use the Tool

5.1 Subject to Company’s compliance with these Terms of Use and payment of any relevant Fees in full, we grant Company a non-exclusive, non-transferable, revocable, non-sub licensable right to access and use the Tool for the purposes of:

(a) creating and running internal phishing drills and campaigns;

(b) obtaining analytics and reports relating to the impact of the internal phishing campaigns that Company runs;

(d) contacting us in relation to Company’s use of the Tool.

5.2 For the avoidance of doubt, the restriction on transferring and sub-licensing the Tool in 5.1 may be waived to the extent set out in clause 6.2(f).

6. Your obligations

6.1 Unless Company has received an offer directly from Trend Micro for the Tool, Company will secure a quote for the Tool from an authorised reseller of Trend Micro products. Company’s order will be sent to the reseller at such prices, discounts, and on invoice and payment terms as agreed solely by Company and the reseller. Company understands that if an order is placed with a reseller, the reseller can place an order with Trend Micro for the Tool (either directly through Trend Micro or through a Trend Micro distributor) as requested by Company, but such Order is and will be subject to acceptance or rejection by Trend Micro at its discretion. Trend Micro’s issuance of its License Certificate shall be deemed to be acceptance of the order. Except for the matters agreed in the first sentence of this paragraph between Company and the reseller all other rights, obligations, terms, conditions, limitations, and exclusions regarding the Tool are exclusively set forth in these Terms of Use. Any payments by Company for the Tool will be made directly to the reseller and never to Trend Micro. Company acknowledges that each reseller is an independent contractor and in no event or circumstance will any reseller now or hereafter be deemed a joint venturer, partner, fiduciary, or agent of Trend Micro and NO reseller has been or will be authorized or permitted to have a right to create any binding obligation, responsibility, duty, liability, warranty, guarantee, or otherwise contract for or act on behalf of Trend Micro or waive or renounce any right of Trend Micro or modify any right, obligation, or agreement by Company as set forth in these Terms of Use

6.2 Company agrees not to:

(a) use the Tool or access to it for any fraudulent or unlawful purpose;

(b) use the Tool or access to it to impersonate any person or entity, or to falsely state or otherwise misrepresent its affiliation with any person or entity;

(d) transmit or otherwise make available in connection with the Tool or access to it any virus, worm, Trojan horse, time bomb, spyware, or other computer code, file, or programme that is harmful or invasive or may or is intended to damage or hijack the operation of, or to monitor the use of, any hardware, software, or equipment;

(e) restrict or inhibit the ability of any other authorised person to access or use the Tool;

(f) use the Tool or access to it for any commercial purposes other than as set out in this sub-clause (f). Where Company is acting as a service provider to end customers, Company may permit any third party end customer to use or benefit from the use or functionality of the Tool provided that (i) Company has provided such end customer with a copy of these Terms of Use and (ii) Company accepts full responsibility for any such use and shall indemnify us on demand for any losses, claims, fees, expenses (including legal fees) that we or our third party content providers may suffer or incur as a result of any breach of these Terms of Use howsoever arising including where such use of the Tool is for and on behalf of or by a third party end customer;

(g) modify, adapt or translate any portion of the Tool;

(h) remove, obscure or modify any copyright, trade mark, or other proprietary rights notice from the Tool;

(i) use any robot, spider, search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine,” or in any way gather or reproduce the Tool or circumvent the navigational structure or presentation of the Tool;

(j) copy, modify, adapt, distribute, or otherwise make use of the third party content available within the Tool for any purpose other than for internal business training purposes only and in accordance with these Terms of Use; or

(k) or attempt to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Tool or Third Party Technology (as defined in 7.3).

7. Links & Open-Source & Third Party Technology & Third Party Content

7.1 From time to time, the Tool may include links to third party websites. These links are provided for your convenience only and do not signify that we endorse such third party websites. We do not review such third party websites and you acknowledge and agree that:

(a) we are not responsible for such websites, including the terms on which such websites are made available and the privacy policies of such websites, and we do not control their content or availability;

(b) we make no representation, warranty or condition, either express or implied, in relation to any goods or services or information received from such websites; and

7.2 Company may include links to the Tool on another website providing Company acknowledges and agree the following:

(a) we are not liable to Company for any loss that you suffer as a result of such links;

(b) we do not promise that the Tool will be continuously available (and therefore such links may not always work);

(c) Company will not insert such links on any website which contains any content which is illegal, infringes any rights, such as the intellectual property rights, of any third party or contains any adult content;

(d) we reserve the right to object to any such links and require Company to promptly remove them.

7.3 The Tool may come bundled or otherwise be distributed with open source or other third party software (herein “Third Party Technology”), that is subject solely to the agreement terms, conditions, limitations, and disclaimers of the specific license (each “Different Terms”) under which such Third Party Technology is redistributed to you by us. Different Terms applicable to any Third Party Technology redistributed in any Tool provided hereunder will be identified by us in the Documentation for, and/or in a "Read Me" or an "About" file in, the Software. THIRD PARTY TECHNOLOGY IS PROVIDED BY US "AS IS" AND “AS AVAILABLE” WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AS IT RELATES TO ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIRD PARTY TECHNOLOGY, WE 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 THIRD PARTY TECHNOLOGY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.4 The Tool may include access to third party content. You acknowledge and agree that:

(a) Company is required to assess whether or not the content is suitable for its purposes, we are not responsible for the quality, accuracy or content of any third party content;

(b) we make no representation, warranty or condition, either express or implied, in relation to the third party content; and

7.5 THIRD PARTY CONTENT IS PROVIDED BY US "AS IS" AND “AS AVAILABLE” WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, AS IT RELATES TO ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIRD PARTY CONTENT, WE 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 THIRD PARTY TECHNOLOGY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. Legal disclaimer

8.1 Where Company has been granted access to the Tool on a trial or test basis, we may terminate the licence for the Tool at any time by providing written notice to Company.

8.2 Nothing in these Terms of Use is intended to exclude or limit our or Company’s liability for death or personal injury caused by their negligence, for fraudulent misrepresentation or for any other liability that cannot be excluded or limited by law.

8.3 Save as expressly provided in these Terms of Use, the Tool is made available to Company on an "as is" basis and we disclaim and do not accept any liability in respect of it or otherwise.

8.4 The information and content provided in the Tool is provided without warranties or conditions of any kind. We provide access to the Tool on the basis that we exclude all representations, warranties and conditions, to the maximum extent permitted by law.

8.5 We do not condone, nor do we provide the Tool for the purpose of assisting Company with employment decisions relating to the suitability for or termination of employment of its employees, agents, contractors or any other third parties. Company may not use or permit the Tool to be used in this way. We do not accept any liability to Company or to such third parties in relation to Company’s use of the Tool. Company will indemnify us on demand for any losses, claims, fees, expenses (including legal fees), fines and penalties of any nature which we incur as a result of its breach of this Clause 8.5

8.6 It is Company’s responsibility to ensure that the Tool is suitable for its intended purposes. We accept no liability as to the suitability or fitness of the Tool in meeting Company’s needs and we exclude to the fullest extent permissible by law all express or implied warranties, representations, conditions or terms, including, without limitation:

(a) that access to the Tool will be uninterrupted or error-free;

(b) that the Tool or the computer server from which the Tool is made available, are free of viruses or other harmful components; and

(c) to the accuracy, content, timeliness, completeness, reliability, quality or suitability of any content (including third party content) contained in or delivered via the Tool or otherwise made available in connection with the Tool.

8.7 Where Company or a user elects to use the Outlook Phish Reporter plugin we will provide Company with a report identifying the recipient of a reported malicious email and the recipient’s response to such email. Other than providing such reports we will not engage with your administrator or provide any advice or assistance, technical or otherwise in relation to the reporting of suspected or actual malicious emails. Company is advised to manage its own response to such malicious emails. We will use the personal data provided to us through the use of the Outlook Phish Reporter plugin (including any that is contained in the content of or attachments to a malicious email) for our own research and analytical purposes to help us with product and service development. Company is responsible for ensuring that all persons or entities who access the Tool are aware of these Terms of Use (including the Data Processing Addendum and Global Privacy Notice) and that they fully comply with them and that in respect of the personal data of any individuals who are the subject of a Tool campaign or drill that all applicable data protection laws are complied with at all times.

8.8 Company also acknowledges and agree that the operation of the Tool is dependent upon the proper and effective functioning of the internet and other third party equipment and services, and that we do not guarantee and will not be liable for these in any way.

8.9 Subject to Clause 8.2, all information, content and links provided on the Tool are for use at Company’s own risk. Company cannot and will not hold us responsible for any damage or loss of any kind caused either directly or indirectly by the information, content and/or links provided on the Tool.

8.10 Subject to Clause 8.2, we will not be liable for any special, indirect or consequential losses or damages, or any:

(a) loss of data;

(b) profits, sales, business or revenue;

(d) loss of business opportunity, goodwill or reputation.

8.11 Subject to Clause 8.2, our liability for actual direct damages arising under or in connection with the Tool and/or these Terms of Use or any breach or non-performance of them no matter how fundamental (including any such use for and on behalf of or by a third party end customer) (including by reason of negligence) in contract, tort or otherwise shall not exceed in the aggregate for all claims or series of claims the total amount of the licence fees paid by Company for the Tool during the 12 months immediately preceding the event or circumstance giving rise to a claim. For the avoidance of doubt, Trend Micro shall have no liability howsoever arising where the Tool has been provided on a trial or test basis.

9. Confidentiality

9.1 Each of the parties shall keep confidential all information concerning the business, technology, and affairs of the other and other information which is identified as such or is confidential by its nature ("Confidential Information").

9.2 The provisions of Clause 9 shall not apply to:

9.2.1 information that has come into the public domain other than by breach of this Clause or any other duty of confidence;

9.2.2 information that is obtained from a third party without breach of this Clause or any other duty of confidence;

9.2.3 information that is required to be disclosed by law; or

9.2.4 information that is disclosed to professional advisors for the purpose of obtaining professional advice (subject to obtaining a satisfactory commitment from that party in respect of confidentiality).

10. Intellectual Property Rights

The intellectual property rights in the Tool and copyright in all material and content stored, displayed and accessible on the Tool is either owned us or duly licensed by third parties. All such rights are reserved.

11. European Personal Data Processing;

By agreeing to these Terms of Use, you and Trend Micro acknowledge and agree that it is also entering into and agreeing to be bound by the Data Processing Addendum, it being further agreed that the Data Processing Addendum shall only apply, if and to the extent that Trend Micro acts as a processor or subprocessor for any European Personal Data (but does not apply to other data/Personal Data) that you (and your Affiliates that have been authorized to access and/or utilize the Tool hereunder) provides or makes available to Trend Micro hereunder. With respect to each of your Affiliates that accesses or utilizes the Tool as permitted herein, you hereby enter into and agree to be bound by the Data Processing Addendum for itself and on behalf of each such Affiliate, and you represent and warrant to Trend Micro that you are duly authorized, and you and all such Affiliates have each taken, all necessary action to do so validly.

12. Entire Agreement

You and Trend Micro agree that these Terms of Use (including the Data Processing Addendum that forms a part hereof and sets forth certain of the responsibilities of the Parties with respect to European Personal Data) are the final, complete, and exclusive statement of the agreement between the Parties with respect to access to and use of the Tool secured by you and any prior agreements, representations, statements, white papers, or advertisement of Trend Micro (whether oral, written, or on Trend Micro's 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 in these Terms of Use with respect to the subject matter hereof, are all superseded by these Terms of Use.

13. Unenforceability

If any provision or part of any provision of these Terms of Use is not enforceable, then you and we agree that the minimum necessary amendment shall be made to these Terms of Use to render them enforceable. If that happens, any unenforceable provision or part of any provision shall be replaced by an enforceable provision which as closely as possible matches the intent of the unenforceable provision or part of a provision.

14. Assignment

14.1 We may assign all rights and obligations under these Terms of Use to any third party, but will not do so in way that reduces your rights under these Terms of Use.

15. No Partnership or Agency

15.1 Nothing in these Terms of Use is intended to or shall operate to create a partnership or joint venture of any kind between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

16. Third Party Rights

A person who is not a party to these Terms of Use has no right under the Contracts (Rights of Third Parties) Act 1999 to rely upon or enforce any term of these Terms of Use.

17. Governing Law

17.1 This Agreement and any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) are governed by and shall be construed in accordance with English law.

17.2 The parties submit to the exclusive jurisdiction of the English courts for all purposes relating to and in connection with this Agreement and any such dispute or claim referred to in Clause 17.1.