BY CLICKING ON THE "YES" BUTTON, YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT ("LICENSEE") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS LICENSE AGREEMENT ("AGREEMENT"). IF A WRITTEN AGREEMENT EXISTS BETWEEN YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT AND BIGFIX, INC. (THE "COMPANY" OR "BIGFIX") WITH RESPECT TO THE SAME PRODUCTS PROVIDED HEREUNDER, THE TERMS OF THAT WRITTEN AGREEMENT SHALL TAKE PRECEDENCE OVER THIS AGREEMENT EXCEPT WITH RESPECT TO SECTION 10 HEREIN, WHICH SHALL CONTINUE TO APPLY (TO THE EXTENT APPLICABLE), AND YOU ACKNOWLEDGE THAT YOU OR THE ENTITY OR COMPANY THAT YOU REPRESENT IS BOUND BY THE TERMS OF THAT WRITTEN AGREEMENT. LICENSEE'S CONTINUED USE OF THE DOWNLOADED MATERIALS SHALL ALSO CONSTITUTE ASSENT TO THE TERMS OF THIS AGREEMENT OR OF AN EXISTING WRITTEN AGREEMENT. IF LICENSEE DOES NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THE APPLICABLE AGREEMENT, CLICK THE "CANCEL" BUTTON AND THE DOWNLOAD AND INSTALLATION PROCESS WILL NOT CONTINUE. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS. LICENSEE ACKNOWLEDGES THAT THE DOWNLOADED MATERIALS WILL CEASE TO FUNCTION AFTER THIRTY (30) DAYS (OR SUCH OTHER PERIOD OF TIME DETERMINED SOLELY BY BIGFIX) FROM THE DATE ON WHICH SUCH MATERIALS ARE DOWNLOADED BY LICENSEE. 



1. Certain Definitions. "Products" shall mean the BigFix Platform, the BigFix Packs, the BigFix Extension Modules, and the BigFix Solution Modules (all defined below).  "Platform Components" shall mean and refer to any combination of the following: the BES Server, the BES Console, the BES Client, the BES Relay, and any related proprietary software or materials provided by the Company in connection with a BigFix Solution Module or BigFix Extension Module.  "BigFix Solution Modules" or "Solutions" shall mean the NAC Solution Module, the Patch Management Solution Module, the Security Configuration Management Solution Module, the Asset and License Management Solution Module, the Power Management Solution Module, the Remote Desktop Solution Module, the Software Distribution Solution Module, the Vulnerability Management Solution Module and the BigFix Client Manager for Anti-Virus Solution Module and in most cases, includes a access to a Content Site.  "BigFix Extension Modules" or "Extensions" shall mean the AntiVirus Extension Module, the AntiSpyware Extension Module, the Data Leak Prevention Extension Module, the OS Deployment Extension Module, the DSS-SAM Extension Module, the Endpoint Protection Products (defined below) and the Firewall Extension Module.  Extensions in most cases, includes a access to a Content Site (defined below).  "BigFix Packs" or "Packs" shall mean the Endpoint Protection Pack, the Security Configuration and Vulnerability Management Pack and the Systems Lifecycle Management Pack.  "Fixlet Messages" shall mean digital files (properly obtained from Company or a third party authorized by Company to so provide such files or developed by Licensee if authorized by Company) containing some or all of the following elements:  (A) a relevance clause written in the Company's proprietary relevance language which describes attributes of a computer system, its content or environment, or such other factors as may be supported by the Company from time to time; (B) text that is displayed to the BES Console operator which describes a particular condition or failure; and (C) computer system intelligible components which contain some form of action to remediate the discovered issue, all of which shall be in a format consistent with the standards set from time to time by the Company.

2. Grant of Limited License.  Subject to all the terms of this Agreement, Company grants Licensee the nonsublicensable, nonexclusive, right (the "License"), for evaluation purposes only, to (i) use the Products in object code form only as follows: (a) use the BES Client only on up to thirty (30) computers and computing devices (the "Licensed Machines"), (b) use the Platform Components in connection with such licensed BES Clients, and (c) if applicable, develop Fixlet Messages for internal use only, whether new or derivatives of existing Fixlet Messages; (ii) distribute copies of the Products and Fixlet Messages only to, and only for internal use on the Licensed Machines; and (iii) access and download Fixlet Messages (using licensed Products in accordance with Company's then current access procedures) from any Content Site that is part of a BigFix Solution for which Licensee has paid the applicable subscription fees.  Any activity contemplated by the License shall be strictly in accordance with and subject to Company's applicable user documentation and, in the case of Fixlet Messages obtained from Company or third parties (or derivatives thereof), any limitations and conditions under which those Fixlet Messages were obtained, as well as any applicable third party rights.  The term of the License or subscription with respect to any Products, Fixlet Message, or Content Site under this Agreement shall be limited to thirty (30) days after the date on which Licensee first downloads any Products, and shall terminate on such date pursuant to Section 6 below, unless otherwise agreed in writing by the parties. 

3. Restrictions.  Licensee will maintain the copyright notice and any other notices that appear on any Products or Fixlet Message on any copies and any media.  Licensee will not (and will not allow any third party to) (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Products or Fixlet Message (except to the extent that applicable law prohibits reverse engineering restrictions), (ii) provide, lease, lend, use for timesharing or service bureau purposes or otherwise use or allow others to use Products or Fixlet Message for the benefit of any third party, or (iii) use any Products or Fixlet Message, or allow the transfer, transmission, export, or re-export of any Products or Fixlet Message or any portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency.  All the limitations and restrictions on Products or Fixlet Messages in this Agreement also apply to documentation.

4. Support and Maintenance.  This Agreement does not entitle Licensee to any support, upgrades, patches, enhancements, or fixes for the Products ("Support and Maintenance Services"), or to any installation, training or additional services, unless Licensee makes separate arrangements therefore with the Company and pays any fees associated with such Support and Maintenance Services.  Any such Support and Maintenance Services or installation, training or additional services that may be made available by the Company shall become part of the Products and subject to this Agreement or the applicable written Agreement.

5. Reporting.  Licensee will supply Company with information relating to the Products, Fixlet Messages, Content Site subscriptions or this Agreement that is reasonably requested from time to time by Company. 

6. Termination.  This Agreement shall remain in effect except as specified below.  The License and any subscriptions and Licensee's related rights will terminate with respect to any Products, Content Site, subscription or service, as well as any related Fixlet Messages, thirty (30) days after initially downloaded by Licensee.  Licensee acknowledges that the downloaded material contains a routine that will disable the Products remotely thirty (30) days after the Products are initially downloaded by Licensee and Licensee hereby gives Licensor the right to disable the Products at that time and shall have no claim against Licensor for any damages incurred as a result of such action by Licensor.  Licensor may terminate this Agreement at any time prior to the end of the thirty (30) day term.  This Agreement and all licenses, subscriptions and services will terminate immediately if Licensee violates any provision of this Agreement or if Licensor terminates this Agreement prior to the end of the thirty (30) day term.  Upon any full or partial termination, Licensee shall immediately cease all use of all affected Products, and Content Site subscriptions as well as any related Fixlet Messages and destroy all copies of all affected Products and Fixlet Messages and all portions thereof and so certify to Company.  Except as otherwise expressly provided herein, the terms of the Agreement shall survive termination.  Termination is not an exclusive remedy and all other remedies will be available whether or not termination occurs.  

7. Limited Warranty and Disclaimer.  EVERYTHING PROVIDED UNDER THIS AGREEMENT (WHETHER PRODUCT, SERVICE OR OTHERWISE) IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.  FURTHER, COMPANY DOES NOT WARRANT RESULTS OF USE OR FREEDOM FROM BUGS OR UNINTERRUPTED USE OR ACCESS.

8. Limitation of Liability.  NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, COMPANY SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE FEES PAID TO IT HEREUNDER WITH RESPECT TO THE APPLICABLE PRODUCTS DURING THE TWELVE MONTH PERIOD PRIOR TO THE CAUSE OF ACTION, IF ANY, OR (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (III) FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES; (IV) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (V) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.

9. Miscellaneous.  Neither this Agreement nor the licenses granted hereunder are assignable or transferable by Licensee without the prior written consent of Company; any attempt to do so shall be void.  Company may assign this Agreement in whole or in part.  Any notice, report, approval or consent required or permitted hereunder shall be in writing.  No failure or delay in exercising any right hereunder will operate as a waiver thereof, nor will any partial exercise of any right or power hereunder preclude further exercise.  If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.  This Agreement shall be deemed to have been made in, and shall be construed pursuant to the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods.  Any waivers or amendments shall be effective only if made in writing.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement, except that notices [and disclaimers] included in the installer guide apply to certain third party software.  The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys' fees and costs in connection with such action.  As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Products, Fixlet Messages and accompanying documentation provided by Company are "commercial items," "commercial computer software" and/or "commercial computer software documentation."  Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. 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.

10.  Endpoint Protection Products.  This Section 10 shall apply only in the event Licensee is licensing any products ("Endpoint Protection Products") that include products or services provided to BigFix by Trend Micro Incorporated or its affiliated entities ("Trend Micro").

a.	Service Acknowledgements. Certain of the Endpoint Protection Products operate by forwarding certain data ("Forwarded Data") to Trend Micro and/or BigFix owned or controlled servers for security scanning. As a condition of using any Endpoint Protection Product and by accepting this Agreement, Licensee represents and warrants that it: (i) is legally permitted and authorized to access, and to provide Trend Micro and/or BigFix with access to, the Forwarded Data and agree to provide Trend Micro and/or BigFix with evidence of such authorization upon request; (ii) authorizes Trend Micro and/or BigFix to act as Licensee's data processing agent and at Licensee's discretion when providing the Endpoint Protection Products; (iii) undertakes to inform the source of the Forwarded Data, to the extent required by local law, of the scope and purpose of the applicable Endpoint Protection Product, which may entail the transfer of Forwarded Data to servers outside of Licensee's jurisdiction (including outside the European Union); (iv) agrees that Licensee is responsible for deciding if and how it uses the Endpoint Protection Products; and (v) will otherwise use the Endpoint Protection Products only in a legal manner.  In the event of any breach of these representations and, warranties in this section, BigFix may with prior notice and without prejudice to its other rights, suspend the performance of the Endpoint Protection Products until Licensee can show to BigFix's satisfaction that any such breach has been cured. 
b.	Information Collection. In addition to product registration information, Trend Micro and/or BigFix must process and store certain information about Licensee's network and equipment to provide Maintenance and related support services. To improve its products, Trend Micro and/or BigFix may periodically upload information electronically from installed Endpoint Protection Products about product usage, detected malware or potentially unwanted files and may use Endpoint Protection Products' service traffic to improve its data bases and heuristics.  Licensee agrees that Trend Micro and/or BigFix may (i) use uploaded data from installed software to improve products and services; (ii) share data that has been identified as malicious or unwanted content with affiliates and security partners; and (iii) use and disclose uploaded data for analysis or reporting purposes only if any such use, sharing or disclosure does not identify Licensee or include any information that can be used to identify any individual person. Trend Micro and/or BigFix, as determined between the parties, reserves the title, ownership and all rights and interest to any intellectual property or work product resulting from its use and analysis of such information.
c.	Data Protection Regulations.  The use of certain Endpoint Protection Products may be subject to data protection laws or regulations in various jurisdictions.  Licensee is responsible for determining how and if it needs to comply with those laws or regulations.
d.	Consent To Electronic Communications. BigFix and/or Trend Micro (with respect to legal notices, Updates and upgrades only) may send Licensee required legal notices and other communications about the Endpoint Protection Products, including Updates, upgrades, special offers and pricing or other similar information, customer surveys or other requests for feedback ("Communications").  Trend Micro and/or BigFix will send Communications via in-product notices or email to registered email addresses of named contacts, or will post Communications on its websites.  By accepting this Agreement, Licensee consents to receive such Communications (all Communications with respect to BigFix and legal notices, Updates and upgrades with respect to Trend Micro) through these electronic means and acknowledges and demonstrates that it can access Communications on websites.
e.	No Other Warranties.  GIVEN THE NATURE AND VOLUME OF MALICIOUS AND UNWANTED ELECTRONIC CONTENT, NEITHER TREND MICRO, BIGFIX, NOR ITS RESELLERS OR SUPPLIERS WARRANT THAT THE ENDPOINT PROTECTION PRODUCTS ARE ERROR FREE OR WILL DETECT ONLY OR ALL SECURITY OR MALICIOUS CODE THREATS OR THAT USE OF THE ENDPOINT PROTECTION PRODUCT UPDATES WILL KEEP ITS NETWORK OR COMPUTER SYSTEMS FREE FROM ALL VIRUSES OR OTHER MALICIOUS OR UNWANTED CONTENT OR SAFE FROM INTRUSIONS OR OTHER SECURITY BREACHES. 
f.	Back-Up. While using any Endpoint Protection Products, Licensee must regularly back-up its data and computer system(s) on separate media. Licensee acknowledges that any failure to back-up data and systems may cause it to lose data in the event of an error in the Endpoint Protection Products or updates. Since only Licensee, not Trend Micro or BigFix, can know the value of Licensee's computer systems and data, only Licensee can implement back-up plans and safeguards appropriate to its needs in the event that an error in the Endpoint Protection Products or updates causes computer problems or data loss.

