MALWAREBYTES BETA TEST SOFTWARE LICENSE AGREEMENT

Last Updated: October 13, 2020

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING, INSTALLING OR USING THE MALWAREBYTES SOFTWARE THAT ACCOMPANIES THIS SOFTWARE LICENSE AGREEMENT OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY, THE “EVALUATION ITEM”).

"MALWAREBYTES" MEANS: (a) IF YOU ACQUIRED THE SOFTWARE IN THE UNITED STATES OR CANADA, MALWAREBYTES INC., A DELAWARE CORPORATION; AND (B) IF YOU IF YOU ACQUIRED THE SOFTWARE IN ANY OTHER COUNTRY, MALWAREBYTES LIMITED, A COMPANY FORMED UNDER THE LAWS OF IRELAND.

THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT (“AGREEMENT”) ARE AN AGREEMENT BETWEEN YOU AND MALWAREBYTES AND GOVERN USE OF THE SOFTWARE.

Malwarebytes is willing to license the Evaluation Item to you only upon the condition that you accept all the terms contained in this Agreement. By clicking to accept where indicated below or by downloading, installing, or using the Evaluation Item, you have indicated that you understand this Agreement and accept all of its terms. If you are accepting the terms of this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “You” and “Your” will refer to that company or other legal entity. If You do not accept all the terms of this Agreement, then Malwarebytes is unwilling to license the Evaluation Item to You and you must destroy all copies of the Software and Documentation.

1. Use of Evaluation Item and Software License. Subject to the terms of this Agreement, Malwarebytes grants You a personal, non-sublicensable (except in the case of a Managed Service Provider Evaluation Item), nonexclusive license to use the Evaluation Item in accordance with the Documentation supplied by Malwarebytes solely for Your testing purposes during the term of this Agreement. The term of this Agreement begins on the date that Malwarebytes designates as the beta Software start date and ends on the date designated by Malwarebytes, in the event no term is designated, the term shall be for thirty (30) days. Malwarebytes shall at all times retain all title to and ownership of the Evaluation Item and all copies thereof. You agree to use the Evaluation Item only in the ordinary course of testing, and You will not reproduce or modify the Evaluation Item or any portion thereof. You shall not rent, sell, lease, or otherwise transfer the Evaluation Item or any part thereof or use it for the benefit of a third party. Notwithstanding the restriction in the immediately preceding sentence, if You are an authorized Malwarebytes Managed Service Provider and are evaluating Managed Service Provider Evaluation Items, you have the discretion to test such Evaluation Items on your end customers that receive Managed Service Provider services. You shall not reverse assemble, reverse compile or reverse engineer the Evaluation Item, or otherwise attempt to discover any Evaluation Item source code or underlying Proprietary Information (as that term is defined below). Malwarebytes may, but has no obligation to, provide updates, support, or maintenance for the Evaluation Item.

 

2. Confidentiality; Ownership. You acknowledge that, in the course of using the Evaluation Item and performing its duties under this Agreement, You may obtain information relating to the Evaluation Item and/or Malwarebytes (“Proprietary Information”). Such Proprietary Information shall belong solely to Malwarebytes and includes, but is not limited to, the existence of the Evaluation Item, its features and mode of operation, this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data. In regard to this Proprietary Information:

(a) You shall use (except as expressly authorized by this Agreement) or disclose Proprietary Information without the prior written consent of Malwarebytes unless such Proprietary Information becomes part of the public domain without breach of this Agreement by You, its officers, directors, employees or agents.

(b) You agree to take reasonable measures to maintain the Proprietary Information and Evaluation Item in confidence.

(c) You will disclose the Evaluation Item and Proprietary Information only to those of its employees and consultants as are necessary for the use expressly and unambiguously licensed hereunder, and only after such employees and contractors have agreed in writing to be bound by the provisions of this Agreement. You shall not, without the prior written consent of Malwarebytes, disclose or otherwise make available the Evaluation Item or copies thereof to any third party.

(d) You will not remove or export the Evaluation Item or any Proprietary Information.

(e) You hereby assign to Malwarebytes any invention, work of authorship, mask work, idea, information, feedback or know-how (whether or not patentable) that is conceived, learned or reduced to practice in the course of performance under this Agreement and any patent rights, copyrights (including moral rights; provided that any non-assignable moral rights are waived to the extent permitted by law), trade secret rights, database rights and all other intellectual property rights with respect thereto. You agree to take any action reasonably requested by Malwarebytes to evidence, perfect, obtain, maintain, enforce, or defend the foregoing.

 

3. Reports. You agree to provide reports upon request, which reports will disclose: (1) which portions of the Evaluation Item have been used, (2) the nature of that use, (3) the extent or amount of use, (4) all errors or difficulties discovered and (5) the characteristic conditions and symptoms of the errors and difficulties, in sufficient detail to allow Malwarebytes to recreate the errors and difficulties itself.

 

4. Warranty Disclaimer. The Evaluation Item is provided "as is". You acknowledge that it is likely to present risks associated with its use. There is no warranty as to the results produced by the Evaluation Item. Similarly, in no event shall Malwarebytes be liable for any damage arising from the use of the Evaluation Item, including and not limited to loss of data. MALWAREBYTES DISCLAIMS ALL WARRANTIES RELATING TO THE EVALUATION ITEM, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Malwarebytes does not warrant that the Evaluation Item will meet Your requirements, that the Evaluation Item will operate in the combinations, on the operating system or in the environments that You may select for execution, that the operation of the Evaluation Item will be error-free or uninterrupted, or that all Evaluation Item errors will be corrected. Malwarebytes specifically disclaims any warranty or representation as to the Evaluation Item 's ability to eliminate any specific malware threats or the completeness of the database or protection modules. You are solely responsible for the data, software and other content carried on Your devices and for backing-up Your data, software and other content.

WARNING: THE EVALUATION COPY OF THE SOFTWARE CONTAINS A ROUTINE FUNCTION THAT WILL CAUSE THE SOFTWARE TO CEASE PROPER FUNCTIONING AFTER A CERTAIN PERIOD OF TIME. THIS MAY OCCUR BEFORE OR AFTER TERMINATION OF THE LICENSE, SO YOU MUST BE PREPARED FOR SUCH EVENT AT ALL TIMES AND MAY NOT RELY ON THE SOFTWARE.

 

5. Limitation of Remedies and Damage. MALWAREBYTES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS, CORRUPTION OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS. MALWAREBYTES SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL.

THE MAXIMUM YOU CAN RECOVER FROM MALWAREBYTES AND ITS SUPPLIERS UNDER THIS AGREEMENT SHALL BE DIRECT DAMAGES UP TO $5.00 USD.

 

6. Privacy. By entering into this Agreement, You agree to the terms of Malwarebytes’ privacy policy, which can be found at https://www.malwarebytes.com/privacy/ (as may be updated from time to time, the “Privacy Policy”). Notwithstanding the statement in the Privacy Policy indicating that Malwarebytes cloud-based products use AWS infrastructure, this particular Evaluation Item may use other infrastructure.

 

7. Non-assignability. Although fully assignable and transferable by Malwarebytes, neither the rights nor the obligations arising under this Agreement are assignable or transferable by You, and any such attempted assignment or transfer shall be void and without effect.

 

8. Execution of Agreement, Controlling Law, Severability. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflicts of laws provisions therein. If a 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.

 

9. Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties regarding the subject matter of this agreement are expressly cancelled. Any modifications of this Agreement must be in writing and signed by both parties.

 

10. Equitable Relief. You acknowledge and agree that due to the unique nature of Malwarebytes' Proprietary Information, there may be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow You or third parties to unfairly compete with Malwarebytes resulting in irreparable harm to Malwarebytes, and therefore, that upon any such breach or threat thereof, Malwarebytes shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.

 

11. Termination. This Agreement may be terminated by Malwarebytes for any reason or no reason upon 10 days' written notice to You via email, or immediately upon notice of any breach by You of the provisions of this Agreement, and in any case will automatically expire 30 days after execution unless otherwise agreed. Upon the earlier expiration or termination, the license granted hereunder shall terminate and You shall immediately return the Evaluation Item, together with any and all documents, notes and other materials regarding the Evaluation Item to Malwarebytes, including, without limitation, all Proprietary Information and all copies and extracts of the foregoing, but the terms of this Agreement will otherwise remain in effect, including, but not limited to those in sections 2, 4, and 5.

 

12. Basis of Bargain. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.

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