ATTENTION: THIS AGREEMENT DESCRIBES THE Entrust MANAGED PKI SERVICES FOR EVALUATION PURPOSES AND CONTAINS LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES, AND LIABILITIES. IF YOU OBTAINED THE SERVICES IN THE UNITED STATES, "Entrust" SHALL MEAN ENTRUST, INC. IF YOU OBTAINED THE SERVICE OUTSIDE OF THE UNITED STATES, "Entrust" SHALL MEAN Entrust LIMITED.
IMPORTANT: ALL SOFTWARE IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. YOU REPRESENT AND WARRANT THAT (I) YOU ACCEPT THIS AGREEMENT AND ARE DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON YOUR ENTITY’S BEHALF AND ARE AUTHORIZED TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
THIS Entrust MANAGED PKI SERVICES EVALUATION AGREEMENT ("Agreement") is made and entered into as of the date You commence using the mPKI Services (as defined below) (the "Effective Date").
WHEREAS Entrust has developed a service which provides managed PKI services, including issuing, managing, revoking, and renewing certificates using proprietary Entrust computer software (hereinafter referred to as "mPKI Services"); and
WHEREAS, You desire to evaluate such mPKI Services; and
WHEREAS, You acknowledge that the mPKI Services and the Evaluation Materials are designed for time‐ limited evaluation use only and accordingly may not include all of the features and functionality of Entrust’s standard commercial mPKI Services offering.
NOW THEREFORE, in consideration of the mutual promises hereinafter set forth, Entrust and
You agree as follows:
As used in this Agreement, unless otherwise defined:
- "Certificate" means digital certificates issued by Entrust for evaluation purposes only (i.e. not for production use) and made available to You in connection with Your evaluation of the mPKI Services under this Agreement.
- "Confidential Information" means any business, marketing, technical, scientific or other information disclosed by Entrust (including its affiliates) which, at the time of disclosure is designated as confidential (or like designation), is disclosed in circumstances of confidence, or would be understood by You, exercising reasonable business judgment, to be confidential. Confidential Information of Entrust will include, without limitation, the Evaluation Materials. Confidential Information does not include information which is (i) already known by You without an obligation of confidentiality, (ii) publicly known or becomes publicly known through unauthorized act of You, (iii) rightfully received by You from a third party without obligation of confidentiality, (iv) disclosed without similar restrictions by Entrust to a third party, (v) approved by Entrust for disclosure, or (vi) required to be disclosed pursuant to a requirement of a governmental agency or law so long as You are provided with timely prior written notice of such requirement.
- "Documentation" means all printed or electronic documentation delivered to You by Entrust in connection with the mPKI Services.
- "Evaluation Materials" means the Software (if any), the Certificates and the Documentation.
- "Software" means the binary code version of the Entrust proprietary software that may be delivered by Entrust to You, or otherwise made available for use by You over the Internet, in connection with the mPKI Services (if any).
- GRANT OF LICENSES
- Subject to the terms and conditions of this Agreement, Entrust grants to You a non‐ exclusive, non‐transferable, no‐charge, limited‐term license to use the Evaluation Materials solely for internal testing and evaluation of the mPKI Services.
- You will not sell, assign, transfer, lease, license, rent, give, publish, disclose, display or otherwise make available to any third parties the Evaluation Materials (or any copies or partial copies thereof). You acquire only the right to use the Evaluation Materials as expressly provided herein, and all right, title and interest (including all intellectual property rights) in the Evaluation Materials (and all copies thereof) will at all times remain the property of Entrust.
- You will not engage in, cause, or permit the reverse engineering, disassembly, de‐compilation or any similar manipulation of the Evaluation Materials. You will not bypass, alter, or tamper with any security or lock‐out features of the Evaluation Materials. You will not remove or destroy any copyright or restricted rights or other proprietary notices (i) affixed to any media containing Evaluation Materials, or
- incorporated within the Evaluation Materials. You will reproduce any such copyright, restricted rights or proprietary notices in or on any copies of the Evaluation Materials (including any partial copies) created by You.
- You shall provide to Entrust the names of Your authorized contacts for the purposes of communication between Entrust and You with respect to the evaluation of the mPKI Services.
- TERM AND TERMINATION
The term of this Agreement will commence on the Effective Date and will terminate sixty (60) days thereafter unless terminated earlier hereunder. The parties may, however, extend this term at any time by written agreement.
- Either party may terminate this Agreement for any material breach of this Agreement which is not cured within five (5) days following notice from the non‐breaching party to the breaching party specifying such breach. Either party may terminate this Agreement for any reason upon ten (10) days prior written notice. Any unauthorized disclosure of Entrust Confidential Information will be cause for immediate termination of this Agreement. Termination of this Agreement will be without prejudice to or limitation of any other remedies or any accrued obligations of either party.
- Upon termination of this Agreement You will (i) immediately cease Your use of the mPKI Services and Evaluation Materials, and (ii) promptly destroy or return to Entrust all copies of the Evaluation Materials and, if requested to do so by Entrust, certify in writing its compliance with this obligation.
- In addition to this Article, Articles 1, 2(b), 2(c), 5, 6, and 7 will survive termination of this Agreement.
- TECHNICAL SUPPORT
- Entrust will be under no obligation to provide any technical support for the mPKI Services or Evaluation Materials. However, Entrust may in its sole discretion (i) fix reported errors, and
- provide You with support and consultation concerning the Evaluation Materials and mPKI Services.
- Entrust Confidential Information will be retained in confidence by You and will be used, disclosed, and copied solely for the purposes of, and in accordance with, this Agreement. You will only disclose Confidential Information to Your employees with a need to know such Confidential Information. You will use the same degree of care as You use to protect Your own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use, disclosure or publication of the Confidential Information.
- You agree and acknowledge that certain information of Yours may be stored in directories and/or other storage devices during the operation of the mPKI Services and may be viewed by third parties.
- WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY
- THE mPKI SERVICES AND EVALUATION MATERIALS ARE PROVIDED BY Entrust SOLELY ON AN "AS‐IS" BASIS. Entrust DISCLAIMS ALL REPRESENTATIONS, CONDITIONS OR WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING BY USAGE OF TRADE, OR OTHERWISE, WITH RESPECT TO THE mPKI SERVICES AND THE EVALUATION MATERIALS PROVIDED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, CONDITIONS OR WARRANTIES OF NON‐INFRINGEMENT, TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE.
- Entrust SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, RELIANCE, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOST BUSINESS, LOST SAVINGS, LOST DATA, AND LOST PROFITS, EVEN IF Entrust HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER OR NOT ANY SUCH DAMAGES ARE CONSTRUED AS ARISING FROM A BREACH OF THIS AGREEMENT OR A FUNDAMENTAL TERM HEREOF. IN NO EVENT SHALL Entrust’S TOTAL CUMULATIVE LIABILITY PURSUANT TO THIS AGREEMENT EXCEED ONE HUNDRED UNITED STATES DOLLARS (US$100.00). YOU ACKNOWLEDGE THAT THE EVALUATION MATERIALS MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED UPON EXPIRATION OF THIS AGREEMENT.
- No agency, partnership, joint venture or employment relationship is or will be created by virtue of this Agreement.
- This Agreement and the licenses granted hereunder may not be assigned, sublicensed or otherwise transferred by You (whether voluntarily, by operation of law, or otherwise) without the prior written consent of Entrust, and any attempt to do so without consent will be void. Entrust may assign this Agreement to any party which acquires all or substantially all of its related business by merger, sale of assets, or otherwise or to an affiliate or subsidiary of such party.
- No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing and signed by authorized representatives of the party against whom the waiver is asserted. No consent by either party to, or waiver of, a breach by the other party will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by such other party.
- In the event any proceeding or lawsuit is brought by You or Entrust in connection with this Agreement, the prevailing party will be entitled to recover its costs, including without limitation expert witness and attorney fees.
- Any and all notices or other information to be provided by one party to another will be in writing and will be deemed sufficiently given when sent to the attention of the other party’s Legal Department by prepaid registered or certified first‐class mail, email or facsimile transmission, or hand delivery as follows: If to You: the email address provided during the trial enrollment. If to Entrust: Two Lincoln Centre, 5420 LBJ Freeway, Suite 300, Dallas, Texas, USA 75240. Each party may designate a new notice address by giving the other party thirty (30) days prior written notice of such new notice address. Such notices will be deemed to have been received fifteen (15) business days after mailing if sent by prepaid registered or certified first‐class mail, and the following business day if sent by email or facsimile transmission or delivered by hand.
- The Evaluation Materials, including any Confidential Information, may be subject to export and import controls. You may not export or import the Software, Documentation, or Confidential Information without the appropriate government licenses. You will comply with all applicable export or import control laws.
- This Agreement constitutes the entire agreement between the parties and supersedes all other agreements between the parties concerning the subject matter herein. In the event any provision of this Agreement is found to be invalid, voidable or unenforceable, the parties agree that such invalidity, voidability or unenforceability will affect neither the validity of this Agreement nor the remaining portions herein, and that the provision in question will be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision.
- If Your company is organized according to the laws of the United States or any State therein, this Agreement will be governed by the laws of the State of Minnesota; otherwise, this Agreement will be governed by the laws of the Province of Ontario, Canada. No choice of laws provisions will apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties waive any right to a jury trial with respect to any action brought in connection with this Agreement. If Your company is organized according to the laws of the United States or any State therein, the United States District Court for the District of Minnesota or the District Courts of Hennepin County, Minnesota will have exclusive jurisdiction over any action or proceeding arising out of or relating to this Agreement; otherwise, the courts in Ottawa, Ontario, Canada will have exclusive jurisdiction over any action or proceeding arising out of or relating to this Agreement.
- S. GOVERNMENT END‐USERS. The Software is a "commercial item" as that term is defined at FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are defined in FAR 12.212, and is provided to the U.S. Government only as a commercial end item. Government end users acquire the rights set out in this Agreement for the Software consistent with: (1) for acquisition by or on behalf of civilian agencies, the terms set forth in FAR. 12.212; or (2) for acquisition by or on behalf of units of the Department of Defense, the terms set forth in DFARS 227.7202. Use of this Software and related documentation is further restricted by the terms and conditions of this Agreement.