End User License Agreement
Last updated on April 26, 2021
PLEASE READ CAREFULLY BEFORE CONTINUING WITH REGISTRATION AND/OR ACTIVATION OF VENAFI-AS-A-SERVICE (THE “SERVICE”).
THIS IS A LEGALLY-BINDING AGREEMENT BETWEEN THE ENTITY YOU REPRESENT OR, IF YOU DO NOT REPRESENT AN ENTITY IN CONNECTION WITH YOUR USE OF THE SERVICE, YOU AS THE END-USER OF THE SERVICE (“YOU” OR “YOUR”) AND VENAFI, INC. (“VENAFI” OR “OUR”). BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE AND/OR ACTIVATING AND USING THE SERVICE, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR ¬”YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE. ANY SIGNED WRITING BETWEEN YOU AND VENAFI OR SEPARATE CLICK THROUGH AGREEMENT BETWEEN YOU AND VENAFI THAT RELATES TO THE SERVICE SHALL TAKE PRECEDENCE OVER THIS AGREEMENT.
You shall not access the Service if You are Our competitor or if You are acting as a representative or agent of a competitor, except with Our prior written consent. For the purposes of this Agreement, a “competitor” is a provider of machine identity management, public key infrastructure management, certificate lifecycle management, or related compliance monitoring services other than Venafi. In addition, You shall not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes, and You shall not perform security vulnerability assessments or penetration tests without the express written consent of Venafi. You shall not attempt to “hack”the Service or any Venafi system. You agree that You shall only access and use the Service for bona fide machine identity management services and compliance monitoring.
This Agreement is effective between You and Venafi as of the date of Your accepting this Agreement or the start date of the subscription set forth on any Order Form, whichever is sooner. Venafi reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this Agreement for any reason. Such changes will be effective with or, as applicable, without prior notice to You. You can review the most current version of this Agreement at www.venafi.com/vaas-terms-of-use. You are responsible for checking this Agreement periodically for changes. If any future changes to this Agreement are unacceptable to You or cause You to no longer be in agreement or compliance with this Agreement, You may terminate this Agreement in accordance with Section 8 and must immediately discontinue Your use of the Service. Your continued use of the Service following any revision to this Agreement constitutes Your complete and irrevocable acceptance of any and all such changes.
The Service may include several products that are operated by Venafi, each of which is separately licensed pursuant to the terms and conditions of this Agreement and each of which is considered a Service under this Agreement. This Agreement applies to each such Service, subservice or product You use or access or for which You have registered. Your rights to access and use each subservice or product shall be set forth in one or more Order Forms or Trial Agreements (each as defined below) between You and Venafi.
- “Documentation” means the user documentation that accompanies the Service.
- “Free Trial Period” means the period during which Venafi offers to You a free trial of a particular Service, as set forth at the time You sign up for the Service, or as Venafi may otherwise communicate to You.
- “License” means the applicable license granted to You as expressly set forth herein.
- “License Term” means the applicable term set forth in Section 2.2.1.
- “Order Form” means each order form between You and Venafi relating to the Service, which may be in the form of a written quote from Venafi to You.
- “Service” means, as applicable, Venafi-as-a-Service, or a particular subservice or tier thereof, including, without limitation, any that may be described in a Venafi Service Level Agreement, that You may use, access or for which You have registered.
- Trial Agreement” means any agreement between You and Venafi governingYour use of the Service during a respective Free Trial Period.
- “Venafi-as-a-Service” means any of the Venafi-hosted services to which you subscribe under this Agreement.
- “Your Data” means electronic data and information submitted by or for You to the Service or collected and processed by or for You using the Service.
- License Grants and Restrictions
- License Grant by Venafi to You. Venafi grants to You a non-exclusive, non-transferable, non-assignable, revocable, limited license to access and use the Service or a particular subservice thereof as set forth on an applicable Order Form or Trial Agreement, during the applicable License Term, and in accordance with the instructions contained in the Documentation. Venafi hereby grants to You the right to use the Documentation solely in connection with the exercise of Your rights under this Agreement. Other than as explicitly set forth in this Agreement, no right to use, modify, distribute, copy, display, or print the Documentation, in whole or in part, is granted. This license grant is limited to internal use by You. This License is conditioned upon Your compliance with all of Your obligations under this Agreement. Except for the express licenses granted in this Section, no other rights or licenses are granted by Venafi, expressly, by implication, by way of estoppel or otherwise. The Service and Documentation are licensed to You and are not sold. Rights not granted in this Agreement are reserved by Venafi.
- License Term. Your right to access and use the Service shall continue during (1) the term of any Order Form or (2) the Free Trial Period under a Trial Agreement, and shall apply solely with respect to the subservices or products set forth in such Order Form or Trial Agreement. Such term shall, in each case, be subject to the termination rights set forth in Section 7. The term of an Order Form shall be specified therein and shall automatically renew for successive terms, unless You give Us at least 60 days’ written notice of nonrenewal at the end of the applicable term, and except as otherwise expressly set forth therein.
- Termination. This Agreement is effective until terminated as set forth herein or each applicable License Term expires and is not otherwise renewed by the parties. Termination for Breach. Either party may terminate this Agreement and/or the License at any time with or without written notice if the other party failsto comply with any term or condition of this Agreement in a material manner and such failure to comply is not cured within 30 days of notice thereof. If You terminate due to Venafi’s breach, You will receive a refund of any amounts prepaid amounts pursuant to an Order Form, pro-rated for the remaining unused term thereunder. If Venafi terminates due to Your breach, You will not receive a refund of any amounts prepaid under any Order Form, nor will You be relieved of the obligation to pay any unpaid amounts set forth in any Order Form. Termination for Convenience. You may terminate this Agreement at any time on written notice to Venafi, but in such case, You will not receive a refund of any amounts prepaid under any Order Form, nor will You be relieved of the obligation to pay any unpaid amounts set forth in any Order Form. Terimation for Convenience. You may terminate this Agreement at any time on written notice to Venafi, but, in such case, You will receive a refund of any amounts prepaid under any Order Form, nor will You be relieved of the obligation to pay any unpaid amounts set forth in any Order Form. Effect of Termination. Upon any termination or expiration of this Agreement or the License, You agree to cease all use of the Service if the License is not otherwise renewed or reinstated including if You do not have an outstanding Order Form and are not within a Free Trial Period. If, upon termination, You later subscribe to the Service, including by entering into a Free Trial Period, You shall have deemed to have agreed to the form of this Agreement as then in effect upon the beginning of such subscription. Upon termination, Venafi may also enforce any rights provided by law. The provisions of this Agreement that protect the proprietary rights of Venafi will continue in force after termination. If You are in a Free Trial Period, Venafi may terminate this Agreement and any License granted to You with respect to such Free Trial Period at any time and for any reason.
- Free Trial. If You are within the Free Trial Period, notwithstanding anything to the contrary in Section 2.2.1, Your right to access and use the Service shall expire at the conclusion of the Free Trial Period unless You enter into an Order Form with Venafi.
ANY DATA YOU MAY PROVIDE IN CONNECTION WITH THE SERVICE DURING A FREE TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO AN APPLICABLE TIER OF SERVICE PRIOR TO THE EXPIRATION OF SUCH FREE TRIAL PERIOD. NOTWITHSTANDING THE TERMS HEREOF, DURING ANY FREE TRIAL PERIOD, THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND VENAFI SHALL HAVE NO LIABILITY NOR INDEMNIFICATION OBLIGATIONS OF ANY TYPE WITH RESPECT TO THE SERVICE FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE VENAFI’S TOTAL LIABILITY WITH RESPECT TO THE SERVICE PROVIDED DURING THE FREE TRIAL PERIOD SHALL IN NO EVENT EXCEED $1,000.00 UNDER ANY THEORY OF LIABILITY AND IN AGGREGATING ALL CLAIMS YOU OR YOUR AFFILIATES MAY HAVE AGAINST VENAFI OR ITS AFFILIATES.
- Restrictions on Use. The grant of rights to You pursuant to Sections 2.1 and 2.2 is subject to the following restrictions and limitations:
- If You are registered with a public Certification Authority (“CA”) supported by the Service and have valid credentials issued by such CA with which You can subscribe to such CA’s SSL/TLS certificates on a fee bearing basis for use in any environment, You may request such certificates through the applicable interface present in the Service by using such credentials. In such instance, the fee bearing certificate(s) will be issued to You by the CA and any access to or use of such certificates by You will be subject to the terms and conditions set out by the CA. No fees will be paid to or processed by Venafi in this case.
- You shall not use (or cause to be used) the Service for the benefit of any third party, including without limitation by rental, in the operation of an Applications Service Provider (ASP) service offering or as a service bureau, or any similar means.
- You shall not distribute access to the Service, in whole or in any part, to any third party or parties. You shall not permit sublicensing, leasing, or other transfer of the Service.
- You shall not (a) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, (b) attempt to gain unauthorized access to the Service or its related systems or networks, (c) permit direct or indirect access to or use of the Service in a way that circumvents a contractual usage limit, or (d) access the Service in order to build a competitive product or service.
- You may not copy, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Service).
- Use of Data.
- License Grant by You. You grant to Venafi and its affiliates, as applicable, a worldwide, royalty-free and irrevocable license to host, copy, transmit and display Your Data as necessary for Venafi to provide the Service in accordance with this Agreement. Subject to the limited licenses granted herein, Venafi acquires no right, title or interest from You or any of Your suppliers or licensors under this Agreement in or to Your Data.
- Consent to Use of Data: You agree that Venafi may collect and use technical data and related information (other than personally identifiable information), including, but not limited to, technical information about Your system and user, that is gathered periodically solely to facilitate the provision of software updates, product support, and other Service related to the Service. Venafi may use this information solely in an anonymized form to improve its products or to provide Service or technologies.
- No Personally Identifiable Information: You agree that you will not provide any personally identifiable Information to the Service except for your name, email address and similar personal information reasonably necessary for you to access the Service.
- External Service. The Service may enable access to third-party Services and websites (collectively, the “External Service”) including, without limitation, those of any CA. You agree to use the External Service at Your sole risk and expense. Venafi is not responsible for examining or evaluating the content or accuracy of any External Service, and shall not be liable for any such External Service. You will not use the External Service in any manner that is inconsistent with the terms of this Agreement and the agreements governing the uses of such External Service, or that infringes the intellectual property rights of Venafi or any third party. Venafi reserves the right to change, suspend, remove, disable or impose access restrictions or limits on any External Service at any time without notice or liability to You.
- Venafi Materials. Venafi and/or its suppliers have and shall retain ownership of all right, title and interest in and to the Service and the Documentation and all intellectual property rights embodied in the Service and Documentation, including without limitation any patents, copyrights, trademarks and trade secrets in the Service and any modifications and/or derivatives thereof, whether or not made at Your request, and all know-how, concepts, methods, programming tools, inventions, and computer source code developed by Venafi.
- Limited Feedback License. You hereby grant to Venafi, at no charge, a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license under Your intellectual property rights in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the Service provided by or on behalf of You to Venafi, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in the Service. Feedback is provided “as is” without warranty of any kind and shall not include any of Your confidential information.
- Limited Releases
You understand and agree that from time to time Venafi may offer versions of software licensed as part of the Service on a limited pre-release or “beta” basis (each, a “Beta Service”), marked as such, and, in such cases, the functionality in a full release version of the Service or any interim version of the Service may differ significantly from the Beta Service. You further acknowledge and agree that a full release version of a Beta Service may never be completed or provided to You. The collection, use and treatment of Your Data pursuant to a Beta Service may vary significantly in future versions of the Service. Without limiting the general disclaimer of warranty in Section 5 below, VENAFI EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, THAT ANY BETA SERVICES AS PROVIDED TO YOU, OR AS MAY BE PROVIDED TO YOU IN THE FUTURE, ARE COMPLETE, VERIFIED, TESTED OR WITHOUT BUGS OR ERRORS, OR FIT FOR ANY PURPOSE, WHETHER OR NOT YOU ARE WITHIN THE FREE TRIAL PERIOD. THE SERVICE IS PROVIDED AT ALL RELEVANT TIMES AS IS, INCLUDING ALL OF ITS FAULTS, AS AVAILABLE with respect to any Beta Services and related Documentation provided to You hereunder. Venafi may modify a Beta Service for any reason or without any specific reason, at any time and at its entire discretion, in particular for technical reasons such as updates, maintenance operations and/or resets to improve and/or optimize the Service. Without limiting the general limitation of liability in Section 5 below, Venafi may terminate a Beta Service at any time and for any reason, including for the business convenience of Venafi. In the event of Venafi’s termination for convenience, Venafi shall refund to You a pro-rated portion of the license fee paid to Venafi by You for such Beta Service, if any, under each applicable Order Form.
- Limitation of Liability; Disclaimer of Warranty
- Limitation of Liability. IN NO EVENT WILL VENAFI OR ITS SUPPLIERS BE LIABLE FOR ANY LOST REVENUE, PROFIT, OR DATA, OR FOR DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY ARISING OUT OF THE USE OF OR INABILITY TO USE THE SERVICE EVEN IF VENAFI OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. A PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THE AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICE IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL A PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT (REGARDLESS OF THE NUMBER OF INDIVIDUAL INCIDENTS GIVING RISE TO LIABILITY) EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICE UNDER ANY THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS FOR SERVICE FEES OR YOUR LIABILITY UNDER SECTION 6 (INDEMNIFICATION). Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages and to the extent that is the case the above limitation or exclusion shall apply to the maximum extent allowable in such jurisdiction.
- Disclaimer of Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 5, THE SERVICE AND DOCUMENTATION ARE PROVIDED “AS-IS,” WITH “ALL FAULTS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, RELIABILITY, OR NONINFRINGEMENT WHETHER ARISING FROM COURSE OF DEALING, USAGE, TRADE PRACTICE OR ANY OTHER MANNER. VENAFI IS NOT OBLIGATED TO PROVIDE ANY UPDATES, UPGRADES OR TECHNICAL SUPPORT FOR THE SERVICE. VENAFI DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. In no event does Venafi warrant that the Service is error free or that Licensee will be able to operate the Service without problems or interruptions. Some jurisdictions do not allow the exclusion of implied warranties and to the extent that is the case the above exclusion shall apply to the maximum extent allowable in such jurisdiction.
- Prior Versions. If any component, plug-in or similar related software, including, without limitation, Your operating system(s), used in conjunction with the Service requires updating, including, without limitation, patching or reinstalling, per the instructions of Venafi or the provider of such software, You expressly acknowledge and agree that You are responsible for making or allowing such updates and in no event will Venafi be liable for any damages under any theory of liability caused by or relating to such failure to update.
You shall indemnify, defend, and hold Venafi and Venafi’s its directors, officers, agents, affiliates, contractors and employees harmless from any and all third-party claims, losses and liabilities accruing or resulting by reason of (a) Your or Your affiliates’ negligence, gross negligence or willful misconduct (i) in the performance of this Agreement or (ii) with respect to Your accessing or using the Service or (b) Your of Your affiliates’ breach of Section 3 (Ownership) or Section 8 (Confidentiality) hereof.
- Compliance With Laws
- Violation of Laws. You shall not knowingly take any action or omit to take any action where the reasonably predictable result would be to cause Venafi or its affiliates to violate any applicable law, rule, regulation or policy and, to the extent not inconsistent therewith, any other applicable law, rule, regulation and policy.
- Export Controls. The Service is subject to all applicable export restrictions. You must comply with all export and import laws and restrictions and regulations of any United States and foreign agency or authority relating to the Product and Your use of the Product. The Service may not be re-exported, accessed or otherwise exported to, or used by a national or resident of, any country to which the United States has embargoed goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. You represent and warrant that You and Your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any applicable list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.
- Definition. “Confidential Information” as used in this Agreement shall mean any and all information intended by a party to be treated as confidential that either (a) is marked conspicuously as “Confidential” or “Proprietary” or with another similarly restrictive legend; (b) is disclosed orally or is visually identified as confidential at the time of disclosure and designated in a written memorandum as such within 30 days of disclosure; or (c) is, due to its character or nature, information that a reasonable person in a like position and under like circumstances would treat as confidential or proprietary. From time to time, Venafi or You may find it necessary to provide to the other party such Confidential Information. Notwithstanding the foregoing, Confidential Information of a party shall not include information that the other party can establish by written documentation (a) to have been publicly known prior to disclosure of such information by the disclosing party to the receiving party; (b) to have become publicly known, without the fault of the receiving party, subsequent to disclosure of such information by the disclosing party to the receiving party; (c) to have been received by the receiving party at any time from a source, other than the disclosing party, rightfully having possession of and the right to disclose such information; (d) to have been otherwise known by the receiving party prior to disclosure of such information by the disclosing party to the receiving party; or (e) to have been independently developed by employees or agents on behalf of the receiving party without access to or use of such information disclosed by the disclosing party to the receiving party.
- Obligations. During the term of this Agreement, and for a period of five (5) years following the expiration or earlier termination hereof, each party shall maintain in confidence all Confidential Information disclosed by the other party and shall not use, grant the use of or disclose to any third party the Confidential Information of the other party other than for the purpose of exercising rights under this Agreement or as expressly permitted hereby. Without limiting the foregoing, each of the parties shall use at least the same degree of care it uses to prevent the disclosure of its own confidential information of like importance, which care shall be no less than reasonable care, to prevent the disclosure of Confidential Information of the other party. Each party shall notify the other promptly upon discovery of any unauthorized use or disclosure of the other party’s Confidential Information.
- Governing Law; Injunctive Relief
- Applicable Law. This Agreement shall be governed by the laws of the State of New York, excluding (a) its conflicts of laws principles; (b) the United Nations Convention on Contracts for the International Sale of Goods; (c) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (d) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in San Jose, California before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
- Injunctive Relief. Notwithstanding the provisions of Section 9.1 above, or anything contained in this Agreement to the contrary, Venafi and You hereby acknowledge and agree that damages at law may be an inadequate remedy for the breach of any of the covenants, promise and contracts contained in Section 2.3 (Restrictions on Use), Section 3 (Ownership) and Section 8 (Confidentiality). Accordingly, Venafi and You hereby agree that Venafi and/or You shall be entitled to temporary and permanent injunctive relief with respect to any such breach without the necessity of proving actual damages, including specific performance of such covenants, promises or contracts or any order enjoining Venafi or You from any threatened, or from the continuation of any actual, breach of covenants, promises or contracts, and may seek provision or enforcement of any such injunctive relief in any competent court having jurisdiction. The rights set forth in this Section 9 shall be in addition to any other rights which the parties may have at law or in equity, subject to the terms and conditions in this Agreement.
- Survival. The parties agree that the rights and obligations set forth in the above-referenced Sections 1 (Definitions), 3 (Ownership), 4 (Limited Releases), 5 (Limitation of Liability; Disclaimer of Warranty), 6 (Indemnification), 7 (Compliance with Laws), 8 (Confidentiality), 9 (Governing Law; Injunctive Relief), and 10 (General) shall survive the termination of this Agreement for any reason and enforcement thereof shall not be subject to any conditions precedent.
- Notice. Any notice shall be considered delivered two business hours after delivery by email or two business days after depositing as first class mail with the United States Postal Service, or with a domestic courier service. All notices required hereunder (or under any Order Form or any related agreement) must be made in writing, which may be by email, at the respective address shown on the relevant Order Form. In the absence of such an address, You may make notice to Venafi solely at [email protected] or by writing to Venafi, Inc. at 175 E. 400 South, Suite 300, Salt Lake City, Utah 84111, Attn: Legal Department and Venafi may make notice to You at any email address or physical address You may have provided to Venafi in connection with Your use of or access to the Service.
- Assignment. This Agreement shall be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns. You shall not assign this Agreement or any of Your rights or obligations hereunder without the prior written consent of Venafi and any such attempted assignment shall be void.