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End User License Agreement

END USER LICENSE AGREEMENT

VENAFI CLOUD SERVICE

*** IMPORTANT ***

Last updated on June 18, 2020

PLEASE READ CAREFULLY BEFORE CONTINUING WITH REGISTRATION AND/OR ACTIVATION OF THE VENAFI CLOUD SERVICE (THE “SERVICE”).

THIS IS A LEGALLY-BINDING AGREEMENT BETWEEN 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 VENAFI CLOUD SERVICE FOR WHICH YOU HAVE REGISTERED, 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 THESE TERMS AND CONDITIONS, 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 protection services or compliance monitoring 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 agree that You shall only access and use the Service for bona fide machine identity protection services and compliance monitoring.

This Agreement is effective between You and Venafi as of the date of Your accepting this Agreement. 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 https://www.venafi.com/venafi-cloud-EULA. 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 Services. Your continued use of the Services following any revision to this Agreement constitutes Your complete and irrevocable acceptance of any and all such changes.

The Venafi Cloud service includes several products that are operated by Venafi as software as a service, 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 for which you use, access or for which you have registered.

1. Definitions

1.1 “Agreement” means this End User License Agreement, as the same may be modified from time to time.

1.2 “Documentation” means the user documentation that accompanies the Service.

1.3 “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.

1.4 “License” means the applicable license granted to You as expressly set forth herein.

1.5 “License Term” means the applicable term set forth in Section 2.2.

1.6 “Paid Account” means an account not within the Free Trial Period that is subscribed to the Service and not in default.

1.7 “Service” means, as applicable, each Venafi Cloud Service, or a particular subservice or tier thereof, that you may use, access or for which you have registered.

1.8 “Venafi Cloud Service” means the cloud-based services offered by Venafi, which includes DevOpsACCELERATE and OutagePREDICT, as well any other cloud-based service which Venafi may offer from time to time.

1.9 “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.

2. License Grants and Restrictions

2.1 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 during the applicable License Term set out in Section 2.2 below, 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.

2.2 License Term.

2.2.1 General. Your right to access and use the Service shall continue for so long as you are within a Free Trial Period or maintain a Paid Account and shall, at all times, be subject to the termination rights set forth in Section 7.

2.2.2 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 convert your account to a Paid Account or otherwise renew or extend your account with Venafi.

2.3 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:

2.3.1 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. The use of DigiCert, Inc. issued certificates shall be subject to the Certificate Service Agreement and other terms and agreements published by DigiCert at https://www.digicert.com/legal-repository/, which applicable terms are hereby incorporated by reference. The use of GlobalSign, Inc. issued certificates shall be subject to the Certificate Service Agreement and other terms and agreements published by DigiCert at https://www.globalsign.com/en/repository/, which applicable terms are hereby incorporated by reference.

2.3.2 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.

2.3.3 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.

2.3.4 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.

2.3.5 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).

2.4 Use of Data.

2.4.1 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.

2.4.2 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 to facilitate the provision of software updates, product support, and other Service related to the Service. Venafi may use this information in an anonymized form to improve its products or to provide Service or technologies.

2.4.3 No Personally Identifiable Information: 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 to facilitate the provision of software updates, product support, and other Service related to the Service. Venafi may use this information in an anonymized form to improve its products or to provide Service or technologies.

2.4.4 External Service. The Service may enable access to third-party Service and websites (collectively, the “External Service”). You agree to use the External Service at Your sole risk. 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.

3. Ownership

3.1 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.

3.2 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.

4. Limited Release

You understand and agree that the versions of the Service for which You are registered are a limited pre-release and the functionality in a full release version of the Services or any interim version of the Services may differ significantly from the version provided to You at any time. You further acknowledge and agree that a full release version of the Service may never be completed or provided to You. The collection, use and treatment of Your Data pursuant to the Services may vary significantly in future versions of the Services. Without limiting the general disclaimer of warranty in Section 5 below, VENAFI EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, THAT THE SERVICES AS PROVIDED TO YOUR, 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 the Service and related Documentation provided to You hereunder. Venafi may modify the 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 the Service at any time and for any reason, including for the business convenience of Venafi and in the event of such a termination, Venafi shall refund to You a pro-rated portion of the license fee paid to Venafi by You for the Service if you maintain a Paid Account.

5. Limitation of Liability; Disclaimer of Warranty

5.1 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.

5.2 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.

6. Indemnification

You shall indemnify, defend, and hold Venafi and Venafi’s its officers, agents and employees harmless from any and all claims, losses and liabilities accruing or resulting to any person, firm or corporation for personal injury or tangible property damage by reason of Your or Your affiliates’ negligence, gross negligence or willful misconduct in (i) performance of this Agreement or (ii) with respect to Your accessing or using the Services.

7. Termination

This License is effective until terminated as set forth herein or the License Term expires and is not otherwise renewed by the parties. Venafi may terminate this Agreement and/or the License at any time with or without written notice to You if You fail to comply with any term or condition of this Agreement or if Venafi ceases to make the Service available to end users. You may terminate this Agreement at any time on written notice to Venafi. 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 fail to maintain a Paid Account at any time outside of the Free Trial Period. 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.

8. Compliance With Laws

8.1 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.

8.2 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 are not located in, under the control of, or a national or resident of any such country or on any such list.

9. Confidentiality

9.1 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 thirty 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.

9.2 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.

10. Governing Law; Injunctive Relief

10.1 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.

10.2 Injunctive Relief. Notwithstanding the provisions of Section 10.1 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 9 (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 12 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.

11. General

11.1 This Agreement is binding on You as well as Your 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 is the entire agreement between You and Venafi with regard to the License granted hereunder, and You agree 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 You relied in entering into this Agreement. This Agreement supersedes any other understandings or agreements, including, but not limited to, advertising, with respect to the Service. 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.

11.2 Survival. The parties agree that the rights and obligations set forth in the above-referenced Sections 1 (Definitions), 3 (Ownership), 4 (Limited Release), 5 (Limitation of Liability; Disclaimer of Warranty), 6 (Indemnification), 8 (Compliance with Laws), 9 (Confidentiality), 10 (Governing Law; Injunctive Relief), and 11 (General) shall survive the termination of this Agreement for any reason and enforcement thereof shall not be subject to any conditions precedent.

11.3 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.

For questions concerning this Agreement, please contact Venafi at 175 E. 400 South, Suite 300, Salt Lake City, Utah 84111 USA.

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