Terms of Use for Cloud Services
VENAFI END USER LICENSE AGREEMENT
For Venafi applications and cloud services
Effective March 25, 2024
*** IMPORTANT ***
PLEASE SCROLL THROUGH AND READ THIS AGREEMENT CAREFULLY IN ITS ENTIRETY BEFORE CONTINUING WITH THIS INSTALLATION, REGISTRATION, AND/OR ACTIVATION.
ANY SIGNED WRITING BETWEEN YOU AND VENAFI THAT RELATES TO THE LICENSING OF THIS SOFTWARE PROGRAM OR SERVICE SHALL TAKE PRECEDENCE OVER THIS AGREEMENT. IF THE FOREGOING DOES NOT APPLY, THEN 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 ( “YOU” OR “LICENSEE”), AND VENAFI, INC. ( “VENAFI”). BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY ACTIVATING, ACCESSING, INSTALLING OR USING THIS SOFTWARE PROGRAM OR 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 “LICENSEE” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. BY INDICATING THAT YOU ACCEPT THE TERMS OF THIS END-USER LICENSE AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, OR YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR COMPANY OR OTHER LEGAL ENTITY TO THIS AGREEMENT, PLEASE INDICATE THAT YOU DO NOT ACCEPT THE TERMS OF THIS LICENSE AGREEMENT AND DISCONTINUE THE INSTALLATION/ACTIVATION PROCESS.
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Binding Legal Agreement; No Access by Competitors
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This is a legal agreement between You and Venafi. This End User License Agreement (“Agreement”) states the terms and conditions upon which Venafi offers to license software to You consisting of software in object code and/or a software-as-a-service or multitenant-application-over-the-Internet service (the “Licensed Software and Services”), together with all related written documentation made available to licensees of the software (“Documentation”). The Licensed Software and Services may include several products, applications, or services that are offered to You by Venafi, each of which is separately licensed pursuant to the terms and conditions of this Agreement. This Agreement applies to each such software, application, or service among the Licensed Software and Services, subservice or product Licensee uses, accesses or downloads, or for which Licensee has registered. By using the Licensed Software and Services or accessing, downloading, deploying, or hosting this program or parts of it, you agree to be bound by the terms of this Agreement.
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You shall not download, install, access or attempt to access the Licensed Software and Services if You are a competitor of Venafi or Venafi’s affiliated group companies (“Affiliates”), or if You are acting as a representative or agent of a competitor, except with Venafi’s 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 or its Affiliates. In addition, You shall not access the Licensed Software and Services for purposes of monitoring its performance or functionality, or for any other benchmarking or competitive purposes. You shall not attempt to “hack” or reverse engineer the Licensed Software and Services or any Venafi system. You shall not perform security vulnerability assessments or penetration tests without the express written consent of Venafi.
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License Grants and Restrictions
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License Grant by Venafi to Licensee. Venafi hereby grants to Licensee, and Licensee hereby accepts, subject to the terms and conditions of this Agreement, a nonexclusive, nontransferable and non-assignable, limited license, without the right to sublicense (the “License”), to: (1) use the Licensed Software and Services solely for Licensee’s own internal use during the License Term as defined in Section 2.2 below, subject to the payment of all applicable fees and any product licensing parameters or licensing metrics that may be set forth in an Order Form (where “Order Form” is defined to mean an applicable ordering document, quote, or purchase agreement applicable to Licensee’s use of the Licensed Software and Services that was agreed to in writing by Venafi or its authorized reseller); and (2) copy the Licensed Software and Services solely for the purposes expressly authorized under this Section. In addition, Venafi grants to Licensee the right to use the Documentation only in connection with the use of the Licensed Software and Services as allowed hereunder. Licensee may make a reasonable number of copies of the Documentation for its internal use only in connection with its use of the Licensed Software and Services, provided Licensee also reproduces any copyright, trademark or other proprietary markings and notices contained on the Documentation and does not remove any such marks from the original. 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 Licensed Software and Services and Documentation are licensed to Licensee and are not sold. Rights not granted in this Agreement are reserved by Venafi.
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License Term. The License Term is defined as three years from the date of delivery of the Licensed Software and Services, subject to the payment of annual subscription license fees and renewing automatically with the renewal of an applicable Order Form, unless otherwise agreed by Venafi or its authorized reseller in writing in an applicable Order Form or as otherwise set forth in Venafi’s quotation to Licensee or Venafi’s authorized reseller. Licensee’s right to access and use the Licensed Software and Services during the applicable term shall apply solely with respect to the subservices or products set forth in such Order Form. The three-year term does not apply to free trials or free tiers; if You have been given free access to the Licensed Software and Services, then the license term, and Your obligation to be bound by the terms of this Agreement, extends unless and until Your license for the applicable Licensed Software and Services is discontinued as specified in Section 2.4.
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Restrictions on Use. The grant of rights stated in Section 2.1 above is subject to the following restrictions and limitations:
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Licensee shall not use (or cause to be used) the Licensed Software and Services 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 similar.
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Licensee shall not distribute the Licensed Software and Services, in whole or in any part, to any third party or parties. Licensee shall not permit sublicensing, leasing, or other transfer of the Licensed Software and Services.
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Licensee shall not, either directly or through a third party, modify or create derivative works of the Licensed Software and Services, or reverse engineer, disassemble or decompile any Licensed Software and Services, or make any attempt in any fashion to obtain the source code to any Licensed Software and Services (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 source components included with the Licensed Software and Services).
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Licensee shall not (a) access or use the Licensed Software and Services or Documentation if Licensee is a Venafi competitor or if Licensee is acting as a representative or agent of a competitor, except with Venafi prior written consent, or (b) use information obtained from the Licensed Software and Services and the Documentation to compete with Venafi, or for any purpose other than bona fide machine identity management services and compliance monitoring.
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If any License Affiliates (hereinafter defined) are licensed to use the Licensed Software and Services, unless such Licensee Affiliates enter into an independent Agreement with Venafi or a Venafi authorized reseller, Licensee shall be responsible and liable for Licensee Affiliates’ acts and omissions as if such acts and omissions were the acts and omissions of Licensee, and Licensee shall be responsible for paying any fees due under this Agreement for Licensee Affiliates. “Licensee Affiliate” means an entity owned or controlled by Licensee, where “controlled” means the ownership, directly or indirectly, of more than fifty percent (50%) of the shares entitled to vote for the election of directors.
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Any license granted under this Agreement, an Order Form, or other written agreement that is not restricted to managing a specified finite number of licenses (e.g., an enterprise license) shall not extend to any entity acquired by, merged with or into or otherwise combined with Licensee if, upon such combination, the combined annual revenues (based on most recent audited reports) or head count is greater by ten percent (10%) or more than Licensee’s annual revenues or head count, respectively, prior to such transaction.
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Free Trial or Free Tier. Venafi may agree to provide You with a free trial or access to a free tier of the Licensed Software and Services. In such instance, Venafi will make the Licensed Software and Services available to You on a trial basis free of charge until the earlier of either: (a) the end of the free trial or free tier period as specified by Venafi, or if no period is specified, any date on which Venafi discontinues your access to the free trial or free tier, or (b) the start date of any purchased licenses and/or subscriptions ordered by You for such Licensed Software and Services. ANY DATA LICENSEE MAY PROVIDE IN CONNECTION WITH A FREE TIER OR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS LICENSEE PURCHASES A SUBSCRIPTION TO AN APPLICABLE TIER OF SERVICE PRIOR TO THE EXPIRATION OR DISCONTINUATION OF THE FREE TRIAL OR FREE TIER. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, FOR ANY FREE TRIAL OR FREE TIER, SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND VENAFI SHALL HAVE NO LIABILITY NOR INDEMNIFICATION OBLIGATIONS OF ANY TYPE WITH RESPECT TO THE FREE TIER OR FREE TRIAL UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE VENAFI’S TOTAL LIABILITY WITH RESPECT TO THE FREE TIER OR FREE TRIAL SHALL IN NO EVENT EXCEED $1,000.00 UNDER ANY THEORY OF LIABILITY AND IN AGGREGATING ALL CLAIMS LICENSEE OR LICENSEE AFFILIATES MAY HAVE AGAINST VENAFI OR AFFILIATES.
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Third-Party Software. The Licensed Software and Services may contain third-party software that requires notices or additional terms and conditions. Required third-party software notices and/or additional terms that are provided in Venafi’s Documentation are made a part of and incorporated by reference into this License. By accepting this License, Licensee is also accepting the additional terms and conditions, if any, set forth therein. VENAFI MAKES NO WARRANTIES AND ACCEPTS NO LIABILITY WITH RESPONSE TO THIRD-PARTY SOFTWARE. THIRD-PARTY SOFTWARE IS PROVIDED AS-IS.
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Third-Party Services. The Licensed Software and Services may enable access to third-party services and websites (collectively, “External Service”) including, without limitation, those of any Certification Authority (“CA”). Licensee agrees to use any External Service at Licensee’s sole risk and expense. Venafi is not liable for any External Service and is not responsible for its content or accuracy. Licensee 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 intellectual property rights. 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 Licensee.
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Scripts for Interoperability. In the event Venafi provides You with a Script (as hereinafter defined), whether bundled in with the Licensed Software and Services or provided separately by Venafi to You, Your use of such Script shall be strictly limited to use solely in conjunction with the Licensed Software and Services. You are not permitted to distribute the Script in any manner, modify the Script in any way, or extract snippets of the Script(s) for use outside of the Licensed Software and Services. For sake of clarity as used in this Agreement, a “Script” is an uncompiled computer program or sequence of instructions that is interpreted or carried out by the Licensed Software and Services for the purpose of enabling interoperability between the Licensed Software and Services and a third-party product.
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Intellectual Property and Data Use
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Venafi Materials. Venafi and/or its suppliers or licensors has and shall retain ownership of all right, title and interest in and to the Licensed Software and Services and the Documentation and all intellectual property rights embodied in the Licensed Software and Services and Documentation, including without limitation patents, copyrights, trademarks and trade secrets in the Licensed Software and Services and any modifications and/or derivatives thereof, whether or not made at Licensee’s request, and all know-how, concepts, methods, programming tools, inventions, and computer source code developed by Venafi (collectively, “Venafi Materials”). For the avoidance of doubt, any copy that Licensee makes of Venafi Materials, in whole or in part, is and shall remain Venafi Materials.
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Limited Feedback License. Licensee hereby grants to Venafi, at no charge, a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license under Licensee’s intellectual property rights in and to suggestions, comments and other forms of feedback (“ Feedback”) regarding the Software provided by or on behalf of Licensee 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 Software. Feedback is provided “as is” without warranty of any kind and shall not include any confidential information of Licensee.
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Licensee Data. Licensee retains right, title and interest in and to materials which Licensee may provide Venafi under this Agreement, including electronic data and information submitted by or for Licensee to the Licensed Software and Services (“Licensee Data”). Licensee represents and warrants that it has the right to provide Venafi with Licensee Data for use under the Agreement and Licensee grants to Venafi and its Affiliates and service providers, as applicable, a worldwide, royalty-free license to host, copy, transmit and display Licensee Data for purposes stated in the Agreement. Subject to the limited licenses granted herein, Venafi acquires no right, title or interest from Licensee or any Licensee suppliers or licensors under this Agreement in or to Licensee Data.
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Consent to Data Collection and Processing. Licensee agrees that Venafi and its Affiliates and authorized service providers may create and/or process anonymous (non-personally identifying) technical, telemetry or other data that either (a) enables the provision of product analytics; (b) contributes to service updates, upgrades or improvements for the Licensed Software and Services; or (c) enables Venafi to confirm license compliance by Licensee.
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Licensee Personal Data (SaaS). This Section applies to the subset of the Licensed Software and Services that consists of a software-as-a-service or multitenant application-over-the Internet service or any subservice or tier thereof (“SaaS”), which may necessitate processing of Licensee Data that relates to an identified or identifiable natural person (“Licensee Personal Data”).
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Limited Processing of Licensee Personal Data. Venafi’s processing of Licensee Personal Data for SaaS is limited to the following data: names, email addresses, and contact information of Licensee users of SaaS, as well as user IP addresses and digital identifiers, to the extent these are considered Licensee Personal Data.
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Use of Licensee Personal Data. Licensee authorizes processing Licensee Personal Data for the following purposes: providing, securing, and supporting or improving SaaS; sending product communications and information; and ensuring license compliance.
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No Other Personal Data. Licensee agrees that Licensee will not provide extraneous or unstructured personally identifiable information to Venafi or to the SaaS.
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Venafi Data Processing Addendum. Licensee’s use of the Licensed Software and Services is governed by the Venafi Privacy Policy and any data privacy policies specific to the Licensed Software and Services as in effect from time to time, available at venafi.com/privacy. Unless Licensee and Venafi have a separate signed Data Processing Addendum (“DPA”) as required by the General Data Protection Regulation 2016/679 (“GDPR”) UK GDPR, or similar data protection laws, the processing of Licensee Personal Data under the Agreement is governed by the Venafi DPA, available at venafi.com/dpa, which is incorporated into this Agreement as if set forth herein. Venafi shall process data on behalf of Licensee in the course of providing the Licensed Software and Services as described in the Venafi DPA and may transfer data internationally including to the United States as described in the Venafi DPA.
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Feedback License. Licensee may provide Venafi with bug reports or suggestions, comments and other forms of feedback regarding features, usability and use (collectively, “Feedback”). If so Licensee grants to Venafi, at no charge, a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license to reproduce, perform, display, and create derivative works of Feedback and to distribute such Feedback and/or derivative works in the Licensed Software and Services. Feedback is provided “as is” without warranty of any kind and shall not include any confidential information of Licensee.
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Enterprise Support and Service Levels
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Enterprise Support. Licensee’s paid subscription to the Licensed Software and Services includes access to Venafi Enterprise Support, available at https://support.venafi.com/. Enterprise Support fees are included in the subscription license fee and are not separately priced. Licensee agrees to submit support and maintenance requests pursuant to instructions provided by Venafi in the support portal or by emailing support@venafi.com. Venafi will make commercially reasonable efforts to address requests in accordance with the service levels and response times provided at https://support.venafi.com and included in Licensee’s license certificate
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Service Availability Levels; Sole Remedy (SaaS Only). Venafi will use commercially reasonable efforts to make the SaaS available for Licensee use least 99.9% of the time in each month, excluding downtime for emergency maintenance (not to exceed 8 hours per month) and scheduled downtime for maintenance that is preceded by reasonable notice from Venafi (not to exceed 12 hours per month). If, excepting emergency and scheduled downtime and circumstances beyond Venafi’s reasonable control, the availability of any SaaS falls below 99.9% in a given calendar month of Licensee’s License Term (not including free tiers and free trials), then Venafi’s sole obligation in relation thereto and Licensee’s sole and exclusive remedy therefor, is that Licensee shall be eligible to request service credits for future subscriptions of the same SaaS, according to a credit percentage schedule set by Venafi. Licensee must file a support ticket within 30 days setting out the date(s) and time(s) of unavailability and Venafi must validate the unavailability in order to issue such a credit.
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Limited Warranties and Disclaimer
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Software Warranty. This Section 5 applies solely to Licensed Applications, defined to mean the subset of the Licensed Software and Services, if any, that is not SaaS and consists of object code form of software to be deployed in a datacenter hosted by Licensee or Licensee’s designated hosting provider. Venafi warrants that, for thirty (30) days following initial delivery of the Licensed Application to Licensee, the Licensed Application (not including updates or upgrades to the Licensed Application generally made available by Venafi at no additional charge to its customers), under normal use and service, will perform in all material respects the functions described in the Documentation. If a Licensed Application fails to comply with the foregoing warranty, Licensee shall send written notice to Venafi prior to the expiration of the warranty period set forth above describing in reasonable detail the nature of the breach. In such event, such Licensed Application may be returned to Venafi within ten (10) days after the end of the warranty period for replacement by Venafi without charge. If Venafi is unable to replace the Licensed Application, then Venafi may terminate the licenses granted in this Agreement with respect to such Licensed Application and refund to Licensee the license fees paid for such Licensed Application. THE REMEDY SET FORTH IN THIS SECTION SHALL BE LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND VENAFI’S SOLE OBLIGATION FOR ANY BREACH OF THE WARRANTY SET FORTH IN THIS SECTION. FAILURE TO COMPLY WITH THIS WARRANTY SHALL NOT PROVIDE LICENSEE WITH ANY GROUNDS TO TERMINATE LICENSE AGREEMENTS OTHER THAN THIS AGREEMENT, OR SEEK REFUND OF LICENSE FEES PAID FOR OTHER VENAFI SOFTWARE AND SERVICES NOT LICENSED UNDER THIS AGREEMENT OR SUBJECT TO THIS WARRANTY.
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Exclusions. The foregoing warranty for Licensed Applications shall not apply if (i) repair or replacement is required as a result of causes other than normal use, including, without limitation, repair, maintenance or modification of the Licensed Application by persons other than Venafi-authorized personnel; accident, fault or negligence of the Licensee; operator error; use of the Licensed Application other than as set forth in the Documentation; or causes external to the Licensed Application such as, but not limited to, failure of electrical power or fire or water damage; or (ii) the Licensed Application are used with software or equipment other than that for which they were designed as set forth in the Documentation.
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Disclaimer of Warranties. THE EXPRESS WARRANTIES STATED IN SECTION 5.1 (LIMITED WARRANTIES), WITH THE EXCLUSIONS STATED IN SECTION 5.2, ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY VENAFI UNDER THIS AGREEMENT OR RELATING TO THE SOFTWARE, DOCUMENTATION, OR ANY MAINTENANCE SERVICES PROVIDED BY VENAFI TO LICENSEE IN SUPPORT OF THE LICENSED SOFTWARE AND SERVICES. THERE ARE NO OTHER WARRANTIES WITH RESPECT TO THE LICENSED SOFTWARE AND SERVICES, ITS AVAILABILITY, DOCUMENTATION, MAINTENANCE SERVICES OR OTHER SERVICES PROVIDED UNDER THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY, RELIABILITY, NON-INFRINGEMENT, OR WHETHER ARISING FROM COURSE OF DEALING, USAGE, TRADE PRACTICE OR ANY OTHER MANNER. NO AGENT OF VENAFI IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF VENAFI AS SET FORTH HEREIN. VENAFI DOES NOT WARRANT THAT THE LICENSED SOFTWARE AND SERVICES IS OR WILL BE ERROR FREE OR BUG FREE. VENAFI DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS. 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.
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Indemnification
Licensee shall indemnify, defend, and hold Venafi and Venafi’s 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) Licensee or Licensee Affiliates’ gross negligence or willful misconduct (i) in the performance of this Agreement or (ii) with respect to Licensee accessing or using the Licensed Software and Services or (b) Licensee or Licensee Affiliates’ breach of Section 3.1 (Venafi Materials) or Section 10 (Confidentiality) hereof.
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Limitation of Liability
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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. IN NO EVENT WILL VENAFI BE LIABLE FOR DAMAGES IF LICENSEE (A) IS NOT OPERATING UNDER THE MOST CURRENT VERSION OF THE LICENSED SOFTWARE; AND/OR (B) HAS NOT INSTALLED A VENAFI-ISSUED PATCH THAT ADDRESSES A VULNERABILITY OR SECURITY ISSUE IN THE LICENSED SOFTWARE. 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 LICENSEE 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 LICENSEE FOR THE LICENSED SOFTWARE AND SERVICES UNDER ANY THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT LICENSEE PAYMENT OBLIGATIONS FOR SERVICE FEES OR LICENSEE 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.
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The parties acknowledge that the limitations set forth in this Section 7 are integral to the amount of fees levied in connection with the license and provision of the Software and Documentation and any services rendered hereunder and that, were Venafi to assume any further liability other than as set forth herein, such fees would of necessity be set substantially higher. The limitations set forth in this Section 7 (Limitation of Liability) (i) shall apply to the maximum extent permitted by applicable law, (ii) shall apply even if an exclusive or limited remedy stated herein fails of its essential purpose and (iii) are an essential element of the basis of the bargain between the parties.
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Termination
This Agreement is effective until terminated as set forth herein or until each applicable License Term expires and is not otherwise renewed by the parties.
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Termination for Breach. Limited term and/or subscription-based licenses are non-cancellable by Licensee during the License Term except for breach by Venafi. Either party may terminate the Agreement or any Licenses due to an uncured material breach by the other party if such breach is not cured within thirty (30) days from receipt of written notice of the breach. If Licensee breaches Section 2.3 (Restrictions on Use) by using the Licensed Software and Services to compete with Venafi or assist a Venafi competitor, Venafi may suspend access to the Licensed Software and Services concurrently with its notice to Licensee. If Venafi terminates due to Licensee’s uncured breach of the Agreement, Licensee will not receive a refund of any prepaid amounts and will still be obligated to pay Venafi or its unauthorized reseller all unpaid amounts that were set forth in any Order Form.
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Effect of Termination. Upon any termination or expiration of this Agreement or the License, Licensee agrees to cease all use of the Licensed Software and Services if the License is not otherwise renewed or reinstated. Not later than ten (10) days after any termination of this Agreement or the License herein, You shall return to Venafi or Venafi's authorized reseller (or at Venafi’s option, destroy and certify in writing to Venafi that You have destroyed), the original and all copies, in whole or in part, in any form, including partial copies, of the Licensed Software and Services and Documentation. 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.
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Compliance With Laws
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Violation of Laws. Licensee shall not knowingly take any action or omit to take any action where the reasonably predictable result would be to cause Venafi or its suppliers or Affiliates to violate any applicable law, rule, regulation or policy.
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Export and Access Controls. Licensee’s use of the Licensed Software and Services is conditioned on Licensee’s compliance with all applicable export and import restrictions and regulations of the United States or foreign agency or authority, as well as additional restrictions imposed by this Section. Notwithstanding anything else in this Agreement to the contrary, the Licensed Software and Services may not be accessed from, exported to, re-exported to, or otherwise used by or accessed from: (i) any country to which the United States has embargoed goods; (ii) Cuba, the Democratic People’s Republic of Korea, Iran, Syria, Sudan, or the Crimea region; (iii) anyone on the U.S. Treasury Department’s List of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders; (iv) any country or destination for which an export license or import license or other governmental approval is required without first having obtained such license or other approval; or (v) Belarus, Russia, or territory determined by the United States to be controlled by Russia, unless Licensee first obtains written permission from Venafi. Licensee represents and warrants that Licensee and Licensee financial institutions, or any party that owns or controls Licensee or Licensee 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 U.K. government, the European Union or its Member States, or other applicable government authority.
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Confidentiality
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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 Licensee 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.
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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.
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Governing Law; Injunctive Relief
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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.
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Injunctive Relief. Notwithstanding the provisions of Section 11.1 above, or anything contained in this Agreement to the contrary, Venafi and Licensee 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 3.1 (Ownership of Venafi Materials) and Section 10 (Confidentiality). Accordingly, Venafi and Licensee hereby agree that Venafi and/or Licensee 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 Licensee 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 11.2 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.
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License Review
Venafi is entitled to review Licensee’s use of the Licensed Software and Services to determine compliance with any applicable fee requirements, product licensing parameters, or licensing metrics and may, with reasonable advance notice not more than once per year, request reports on license usage from Licensee if such reports are reasonably accessible to Licensee. If Venafi reasonably determines that Licensee has used Licensed Software and Services outside the scope of the License granted herein, including using more than the purchased number and/or type of licenses, then Venafi or Venafi’s authorized reseller (as applicable) shall invoice Licensee for such additional use.
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General
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Binding Agreement; Enforceability. This Agreement is binding on Licensee as well as Licensee employees, employers, contractors and agents, and on any permitted successors and assignees. Except if otherwise superseded in writing by a separately executed agreement, this Agreement, together with any applicable Order Forms, is the entire agreement between Licensee and Venafi with regard to the License granted hereunder, and Licensee agrees that Venafi will not have any liability for any statement or representation made by it, its agents or anyone else (whether innocently or negligently) upon which Licensee relied in entering into this Agreement. This Agreement supersedes any other understandings or agreements, including, but not limited to, advertising, with respect to the Licensed Software and Services. If any provision of this Agreement is deemed invalid or unenforceable by any court or arbiter, that particular provision will be deemed modified to the extent necessary to make the provision valid and enforceable and the remaining provisions will remain in full force and effect. Venafi’s breach of any Service Level Agreement or similar agreement between Licensee and Venafi, or otherwise issued by Venafi, shall not constitute a breach of this Agreement or of any Order Form.
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Survival. The parties agree that the rights and obligations set forth in the above-referenced Sections 3.1 (Ownership of Venafi Materials), 5.3 (Disclaimer of Warranty), 6 (Indemnification), 7 (Limitation of Liability), 9 (Compliance with Laws), 10 (Confidentiality), 11 (Governing Law; Injunctive Relief), and 13 (General) shall survive the termination of this Agreement for any reason and enforcement thereof shall not be subject to any conditions precedent.
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Notice. Any notice shall be considered delivered two business days after delivery by email or two business days after depositing as first-class mail within the United States. 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 or email address shown on the relevant Order Form. In the absence of such an address or email address, Licensee may make notice to Venafi 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 Licensee at any email address or physical address Licensee may have provided to Venafi in connection with Licensee use of or access to the Service.
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Assignment. This Agreement shall be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns. Licensee shall not assign this Agreement or any of Licensee rights or obligations hereunder without the prior written consent of Venafi and any such attempted assignment shall be void. For questions concerning this Agreement, please contact your Venafi account representative or the Venafi authorized reseller through whom you purchased licenses.
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