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TENABLE MASTER AGREEMENT
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This Master Agreement (this “Agreement”) is made by and between Tenable (as defined below) and the customer licensing Products
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and/or receiving services (“Customer”) with an effective date as of the date Customer clicks to accept this Agreement (the “Effective
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Date”). Hereinafter, each of Tenable and Customer may be referred to collectively as the “Parties” or individually as a “Party”.
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1. Definitions.
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(a) “Affiliate” means any entity that controls, is controlled by, or is under common control with a Party. “Control” shall mean:
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(1) ownership (either directly or indirectly) of greater than fifty percent (50%) of the voting equity or other controlling equity of another
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entity; or (2) power of one entity to direct the management or policies of another entity, by contract or otherwise.
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(b) “Documentation” means the then-current official user manuals and/or documentation for the Products available at
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docs.tenable.com (or a successor location).
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(c) “Hosted Services” are a type of service offered through Tenable’s cloud-based software as a service (SaaS) platform and
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include Scans and access to and use of the hosted environment (the “Hosted Environment”).
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(d) “Product(s)” means any of the products that Tenable offers, including Software, Hosted Services, Hardware (if any),
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Support Services and Professional Services.
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(e) “Professional Services” means services purchased, including consulting services which are relevant to the implementation
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and configurations of Tenable Products as well as on-site or virtual training courses. Generally, Professional Services are defined either
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in a separate SOW or a Services Brief. Professional Services do not include the Hosted Services or Support Services.
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(f) “Scan(s)” are a function performed by the Software and/or the Hosted Services on Scan Targets, which are conducted in
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order to provide data to Customer regarding its network security. “PCI Scans” are a specific type of Scan designed to assess compliance
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with the Payment Card Industry Data Security Standard. “Scan Data” is the resulting information created by the Scan. “Scan Target(s)”
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are the targets or subjects of a Scan.
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(g) “Services Brief” means the document which outlines Tenable’s basic, pre-packaged installation or training Professional
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Services offered under a Tenable SKU and which do not require a separate SOW. Current versions of Services Briefs may be found at
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http://static.tenable.com/prod_docs/tenable_slas.html (or a successor location). For the avoidance of doubt, Customer may purchase
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commercial off the shelf SKU-based Professional Services without executing a separate Statement of Work. A “SOW” or “Statement
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of Work” shall further describe Professional Services, the terms of which may be customized and which shall require execution by the
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Customer.
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(h) “Software” means each software product made available by Tenable under this Agreement for download. Software
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includes patches, updates, improvements, additions, enhancements and other modifications or revised versions of the same that may be
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provided to Customer by Tenable from time to time.
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(i) “Technical Data” means data Customer uploads or runs through or on the Products, or is otherwise generated thereby,
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including information regarding licensing metrics and product behavioral data.
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(j) “Tenable” means: (i) Tenable, Inc., if Customer is a commercial entity or individual located in North or South America
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(Tenable, Inc. is a Delaware corporation having offices at 6100 Merriweather Drive, 12th Floor, Columbia, MD 21044); (ii) Tenable
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Public Sector LLC, if Customer is an agency or instrumentality of the United States Government, a commercial entity operating
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predominantly as a federal systems integrator for eventual sale or resale or for the benefit of the United States Government, or an agency
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or instrumentality of a State or local government within the United States (Tenable Public Sector LLC is a Delaware limited liability
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company having offices at 6100 Merriweather Drive, 12 th Floor, Columbia, MD 21044); or (iii) Tenable Network Security Ireland
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Limited, if Customer is located outside of North or South America (Tenable Network Security Ireland Limited is a private limited
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company having offices at 81b Campshires, Sir John Rogerson’s Quay, Dublin 2, Ireland).
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2. Orders and Transactions.
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(a) Reseller Transactions. If Customer purchases Tenable Products through an authorized Tenable reseller (a “Reseller”), all
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terms related to pricing, billing, invoicing and payment (“Payment Terms”) set forth in this Agreement (if any) shall not apply. For the
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avoidance of doubt, all such Payment Terms shall be as agreed to between Customer and Reseller. To place an order, Customer shall
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provide the Reseller with a purchase order (or other similar document acceptable to Reseller) in response to a valid quote from such
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Reseller. Following Reseller’s receipt of such purchase order, Tenable shall issue a sales order confirmation or other similar order
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acceptance document (the “Ordering Document”). No order shall be deemed accepted by Tenable until Tenable issues the Ordering
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Document. The Ordering Document shall set forth all Products (and corresponding licensing metrics) purchased by Customer.
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(b) Direct Transactions. If the Parties have agreed to transact directly, the following Payment Terms shall apply. Customer
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agrees to pay all amounts due as specified in a Tenable invoice. Fees for Hosted Services are charged for access to the Host Environment
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(as defined herein), not actual usage. Payment is due within thirty (30) days from the date of Tenable’s invoice to Customer. Customer
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will pay directly or reimburse Tenable for any taxes (including, sales or excise taxes, value added taxes, gross receipt taxes, landing
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fees, import duties and the like), however designated and whether foreign or domestic, imposed on or arising out of this Agreement.
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Notwithstanding the foregoing, Tenable will be solely responsible for its income tax obligations and all employer reporting and payment
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obligations with respect to its personnel. Customer agrees to pay Tenable without deducting any present or future taxes, withholdings
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or other charges except those deductions it is legally required to make. If Customer is legally required to make any deductions or
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withholding, Customer agrees to provide evidence of such withholding upon request. If a certificate of exemption or similar document
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or proceeding is necessary in order to exempt any transaction from a tax, Customer shall provide such certificate or document to Tenable.
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(c) Delivery and Installation. Delivery of Tenable Products (“Delivery”) shall be deemed to occur on the date of availability
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for electronic download or electronic access. Tenable has no duty to provide installation services for Tenable Products unless installation
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services are purchased separately.
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3. Term and Termination.
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(a) Agreement Term. This Agreement shall commence upon the Effective Date and continue until terminated in accordance
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with the terms set forth herein.
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(b) License Term and Renewals. The “License Term” is the term of the license or subscription for Products as set forth in the
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Ordering Document. If this Agreement has been signed by both Parties, then unless otherwise agreed to in writing, any License Term,
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including renewals, shall be governed by the terms set forth herein. If this Agreement has been accepted via shrinkwrap or clickthrough,
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upon any renewal of the License Term, the terms then available at http://static.tenable.com/prod_docs/tenable_slas.html (or a
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successor location) will govern such renewal. Customer agrees that use of the Products at the time of such renewal will be deemed full
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and adequate acceptance of the updated terms.
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(c) Termination for Cause. Either Party may terminate this Agreement for cause if the other Party materially breaches this
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Agreement provided that such breaching Party has received written notice of such breach and failed to cure such breach within thirty
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(30) days. If this Agreement is terminated for cause by either Party, Customer shall remove all copies of the Products from any Customer
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systems and cease to use any Software or Hosted Services purchased hereunder. Further, Customer shall certify to Tenable that it has
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returned or destroyed all copies of the Software. If this Agreement is terminated for cause by Tenable, Customer shall remain responsible
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for any outstanding payment obligations throughout the rest of the License Term.
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(d) Termination for Convenience. Customer may terminate this Agreement for any lawful reason upon ninety (90) days’ prior
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written notice to Tenable. If Customer terminates for convenience, Customer shall not receive a refund and shall remain obligated to
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pay for Products for which it has previously entered into a transaction as well as any additional payment obligations agreed upon prior
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to the termination date.
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4. Products.
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(a) Product-Specific Terms. Pursuant to this Agreement, Customer may receive the right to use various Products as further
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described in the attached schedules (each, a “Schedule”). Terms related to Customer’s use of Software are described in Schedule A
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(Software). Terms related to Customer’s use of Hosted Services are described in Schedule B (Hosted Services). Terms related to the
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provision of Professional Services are described in Schedule C (Professional Services). For each Product, Customer will have the right
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to use the corresponding Documentation.
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(b) Licensing Model. Product licenses shall be in accordance with the terms of the applicable licensing model as set forth in
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the Documentation and/or the Ordering Document, which may include limitations on Scan Targets, compute, storage, resource
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utilization, License Term, the number of users, seats, licenses and/or types of modules licensed. Product licenses shall commence upon
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Delivery and shall be either perpetual or subscription in nature. Tenable shall use commercially reasonable efforts to meter resource
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utilization and assess likeness or uniqueness of Scan Targets within each Product/module licensed. If Customer exceeds the license
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restrictions, Customer must purchase an upgraded license to allow for all actual or additional usage, and Tenable or its Reseller may
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promptly invoice Customer for any such overages at a price not to exceed Tenable’s then-current rates. Discrepancies in Scan Target
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or utilization count is the sole responsibility of the Customer to resolve.
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(c) Restrictions on Use. Customer shall not directly or indirectly: (i) decompile, disassemble, reverse engineer, or otherwise
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attempt to derive, obtain or modify the source code of the Products; (ii) reproduce, modify, translate or create derivative works of all or
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any part of the Products; (iii) remove, alter or obscure any proprietary notice, labels, or marks on the Products; (iv) without Tenable’s
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prior written consent, use the Products in a service bureau, application service provider or similar capacity; (v) without signing Tenable’s
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Managed Security Services Provider Addendum, use the Products to provide any managed service to a third party; (vi) use the Products
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in order to create competitive analysis or a competitive product or service; (vii) copy any ideas, features, functions or graphics in the
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Product; or (viii) without Tenable’s prior written consent, interfere with or disrupt performance of Hosted Services (e.g., perform
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penetration testing on Tenable systems). Customer may only use the Products to manage or gather information from Scan Targets
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owned or hosted by Customer or its Affiliates, or third parties for which Customer has received express authorization to Scan.
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(d) Intellectual Property in Products. This Agreement does not transfer to Customer any title to or any ownership right or
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interest in the Products. Any rights in the Products not expressly granted in this Agreement are reserved by Tenable. If Customer
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provides Tenable with any comments, suggestions, or other feedback regarding the Product, Customer hereby assigns to Tenable all
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right, title and interest in and to such feedback. For clarity, such feedback shall not contain Customer Confidential Information and shall
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not reference or identify Customer or its users.
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(e) Customer Requirements. In order to use the Products, Customer must meet or exceed the specifications found in the
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Documentation.
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(f) Product Features. Customer agrees that purchase of any Product is not contingent on the delivery of any future
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functionality or features, or dependent on any oral or written public comments made by Tenable regarding future functionality or
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features. Tenable reserves the right to withdraw features from future versions of the Products provided that: (i) the core functionality of
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the affected Product remains the same; or (ii) Customer is offered access to a product or service providing materially similar functionality
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as the functionality removed from the affected Product. The preceding remedies under this Section 4(f) are the sole remedies available
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if Tenable withdraws features from the Products.
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(g) Rights Granted to Tenable. Provided that Tenable shall not publicly disclose any Customer Confidential Information,
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Tenable may: (i) use Technical Data for reasonable business purposes, including Support Services, license validation, research and
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development, feature creation, and Product testing; (ii) include aggregated and anonymized Technical Data in public materials; and (iii)
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retain Technical Data which is anonymized after the termination of this Agreement.
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(h) Hardware. Any Hardware purchased under this Agreement (if any) will be subject to the terms and conditions of Schedule
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D located at http://static.tenable.com/prod_docs/tenable_slas.html (or a successor location).
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(i) Temporary Limitation. If Tenable reasonably believes: (i) Customer’s use of the Products places an unreasonable or
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disproportionate burden on the Products; (ii) Customer’s use of the Products poses a risk or threat to the Products (including any systems
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supporting the Products), Tenable, or a third party; or (iii) Customer’s usage exceeds the limitations of the license, then Tenable may
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temporarily limit Customer’s access to or use of the Products or any specific feature therein. Tenable may also suspend or limit access
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to the Products if Customer fails to make any payments related to this Agreement. Tenable will, to the extent practical under the
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circumstances, use commercially reasonable efforts to provide Customer with prior written notice of any such limitation (email or in
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product messaging shall be sufficient). When commercially reasonable, Tenable shall promptly restore access once the Customer has
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remediated the issue. For the avoidance of doubt, Customer is responsible for all normal fees during any period for which usage or
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access is limited pursuant to this section.
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(j) Additional Details on Use Restrictions for Tenable Security Network Ireland Limited. The following shall only apply for
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transactions with Tenable Security Network Ireland Limited. Notwithstanding anything in Section 4(c), decompiling the Product is
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permitted to the extent the laws of Customer’s jurisdiction give Customer the right to do so to obtain information necessary to render
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the Products interoperable with other software; provided, however, that Customer must first request such information from Tenable and
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Tenable may, in its discretion, either provide such information to Customer or impose reasonable conditions, including a reasonable fee,
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on such use of the Products to ensure that its proprietary rights in the Product are protected.
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5. Support.
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(a) Support Services. Tenable shall provide Customer with support services (the “Support Services”) in accordance with
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Tenable’s then-current Technical Support Plans (available at http://static.tenable.com/prod_docs/tenable_slas.html or a successor
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location) and consistent with Tenable’s End of Life and End of Sale definitions contained therein. The Support Services include bug
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fixes, updates (including new vulnerability plug-ins), or enhancements that Tenable makes generally available to users of the Products.
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The Support Services also include the provision of new minor (Example: 1.1.x to 1.2.x, etc.) and major version releases of the Products
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(Example: 1.x to 2.x, etc.).
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(b) Support Fees. Standard Support Services for Products licensed for a finite License Term will be provided at no additional
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charge beyond the license fee for the duration of the License Term. Support Services for Products licensed on a perpetual basis must
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be purchased separately in advance. In all cases, premium support may be purchased at an additional charge. If during the course of a
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perpetual license Customer terminates or fails to renew the Support Services, Customer may, at any time during the term of this
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Agreement, request that Tenable reinstate the Support Services provided that Customer pays for the lapsed Support Services in an
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amount equal to the total fees Customer would have paid for the Support Services between the time Customer’s Support Services lapsed
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and the then-current date.
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6. Confidentiality.
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(a) Definition. “Confidential Information” means information learned or disclosed by a Party under this Agreement that
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should reasonably be assumed to be confidential or proprietary, including the Products and the terms of this Agreement. Confidential
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Information will remain the property of the disclosing Party, and the receiving Party will not be deemed by virtue of this Agreement or
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any access to the Confidential Information to have acquired any right, title or interest in or to the Confidential Information.
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(b) Obligations. Each Party agrees to only use the Confidential Information in connection with this Agreement or a purchase
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hereunder. The receiving Party agrees to hold the disclosing Party’s Confidential Information confidential using at least the same level
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of protection against unauthorized disclosure or use as the receiving Party normally uses to protect its own information of a similar
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character, but in no event less than a reasonable degree of care. Each Party may share Confidential Information with its Affiliates or
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authorized contractors in the performance of its duties under this Agreement; provided, however, that each Party shall be responsible to
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ensure that such Affiliate or authorized contractors are bound by obligations of confidentiality at least as stringent as those set forth in
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this Agreement.
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(c) Exclusions. Confidential Information shall not include information that: (i) is already known to the receiving Party free of
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any confidentiality obligation; (ii) is or becomes publicly known through no wrongful act of the receiving Party; (iii) is rightfully
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received by the receiving Party from a third party without any restriction or confidentiality; or (iv) is independently developed by the
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receiving Party without reference to the Confidential Information. Confidential Information does not include Scan Data that has been
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aggregated or anonymized so that it is not attributable to the disclosing Party. If Customer requests or performs scans on third party
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Scan Targets, and such third party inquires with Tenable about the scan, Tenable shall inform Customer and allow Customer to resolve
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any disputes with the third party. If Customer fails to contact the third party, Customer agrees that Tenable may provide Customer’s
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business contact information to the owner of the Scan Targets as well as to relevant authorities, and such disclosure shall not be
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considered a breach of confidentiality.
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(d) Sensitive Information. The Parties agree that Customer’s disclosure of sensitive, personal information (e.g., social security
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numbers, national identity card numbers, personal credit card information, racial or ethnic origin, political opinions, religious or
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philosophical beliefs, trade union membership, genetic data, biometric data, and health care data) (“Sensitive Information”) is not
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required for Tenable to perform its duties under this Agreement or sell any Products hereunder. If Customer inadvertently or
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unintentionally discloses any Sensitive Information to Tenable, Customer shall identify to Tenable that it has disclosed Sensitive
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Information and Tenable shall promptly return and/or destroy such Sensitive Information.
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(e) Legal Disclosures; Remedies. The receiving Party may disclose Confidential Information if required to do so by law
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provided the receiving Party shall promptly notify the disclosing Party so that the disclosing Party may seek any appropriate protective
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order and/or take any other action to prevent or limit such disclosure. If required hereunder, the receiving Party shall furnish only that
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portion of the Confidential Information disclosure of which is legally required. The receiving Party acknowledges and agrees that the
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breach of any term, covenant or provision of this Agreement may cause irreparable harm to the disclosing Party and, accordingly, upon
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the threatened or actual breach by the receiving Party of any term, covenant or provision of this Agreement, the disclosing Party shall
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be entitled to seek injunctive relief, together with any other remedy available at law or in equity. The receiving Party will notify the
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disclosing Party promptly of any unauthorized use or disclosure of the disclosing Party’s Confidential Information.
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7. Representations and Warranties; Disclaimer.
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(a) Warranty of Authority. The Parties hereby represent and warrant that they have the full power and authority to enter into
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this Agreement.
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(b) Products. Product warranties and associated warranty periods are set forth in the relevant Schedules.
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(c) Antivirus Warranty. Tenable represents it has taken commercially reasonable efforts to ensure that the Products, at the
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time of Delivery, are free from any known and undisclosed virus, worm, trap door, back door, timer, clock, counter or other limiting
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routine, instruction or design that would erase data or programming or otherwise cause the Products to become inoperable or incapable
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of being used in the manner for which it was designed or in accordance with the Documentation.
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(d) Warranty Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND TO THE GREATEST
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EXTENT PERMITTED BY LAW, TENABLE OFFERS ITS PRODUCTS “AS-IS” AND MAKES NO OTHER WARRANTY OF
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ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF TITLE,
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NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, INTEGRATION,
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PERFORMANCE AND ACCURACY, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF
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DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. THE WARRANTIES SET FORTH IN THIS AGREEMENT
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ARE MADE TO CUSTOMER FOR CUSTOMER’S BENEFIT ONLY. CUSTOMER’S USE OF THE PRODUCTS IS AT
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CUSTOMER’S OWN RISK. CUSTOMER UNDERSTANDS THAT ASSESSING NETWORK SECURITY IS A COMPLEX
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PROCEDURE, AND TENABLE DOES NOT GUARANTEE THAT THE RESULTS OF THE PRODUCTS WILL BE ERROR-FREE
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OR PROVIDE A COMPLETE AND ACCURATE PICTURE OF CUSTOMER’S SECURITY FLAWS, AND CUSTOMER AGREES
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NOT TO RELY SOLELY ON SUCH PRODUCTS IN DEVELOPING ITS SECURITY STRATEGY. CUSTOMER
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ACKNOWLEDGES THAT THE PRODUCTS MAY RESULT IN LOSS OF SERVICE OR HAVE OTHER IMPACTS TO
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NETWORKS, ASSETS OR COMPUTERS (INCLUDING MODIFICATION OF SCAN TARGETS), AND CUSTOMER IS SOLELY
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RESPONSIBLE FOR ANY DAMAGES RELATING TO SUCH LOSS OR IMPACT.
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8. Limitation of Liability.
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(a) Direct Damages. The cumulative liability of one Party to the other for all claims arising from or relating to the Products
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or this Agreement (including without limitation, any cause of action sounding in contract, tort or strict liability) shall be limited to proven
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direct damages in an amount not to exceed, in the aggregate, the fees paid by Customer for the Products over the twelve (12) months
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immediately prior to the event giving rise to the claim.
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(b) Indirect Damages. Neither Party shall be liable to the other for any indirect, incidental, special, punitive, consequential or
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exemplary damages regardless of the nature of the claim. This prohibition on indirect damages shall include, but not be limited to, claims
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based on lost profits, cost of delay, any failure of Delivery, business interruption, cost of lost or damaged data, or liabilities to any third
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parties even if such Party is advised of the possibility thereof.
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(c) Carve Outs. The liability caps set forth in Sections 8(a) and 8(b) shall not apply to damages resulting from:
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(i) personal injury or death;
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(ii) fraud or willful misconduct;
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(iii) indemnification obligations set forth in Section 9 (Indemnification); or
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(iv) Customer’s breach of Section 4(c) (Restrictions on Use).
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(d) Limitations; Time Period. Each of the limitations set forth in this Section 8 shall be enforced to the fullest extent of the
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law. Any laws preventing such limitations shall only apply to the extent required by law and the remaining unaffected terms shall apply
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in full. Unless expressly prohibited by law, each Party shall have a period of no greater than twelve (12) months from the date the cause
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of action accrues to bring a claim against the other Party for such cause of action.
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9. Indemnification.
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(a) Indemnification Obligations.
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(i) By Tenable. Tenable shall (at its sole cost and expense): (i) defend and/or settle on behalf of Customer (including
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Customer’s officers, directors, employees, representatives and agents); and (ii) indemnify Customer for, any third party claims brought
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against Customer based upon a claim that Customer’s use of the Products in accordance with this Agreement infringes or misappropriates
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such third party’s intellectual property rights in a jurisdiction which is signatory to the Berne Convention.
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(ii) By Customer. Customer shall (at its sole cost and expense): (i) defend and/or settle on behalf of Tenable (including
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Tenable’s officers, directors, employees, representatives and agents) and (ii) indemnify Tenable for, any third party claims brought
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against Tenable arising out of or relating to Customer’s use of the Products to perform Scans on third party Scan Targets, except to the
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extent that any such claim or action is caused by a failure of the Products to materially comply with the Documentation.
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(b) In Case of Infringement. If Customer’s use of the Products is, or in Tenable’s opinion is likely to be, the subject of an
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infringement claim, Tenable may, in its sole discretion and expense: (i) modify or replace the infringing Products as necessary to avoid
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infringement, provided that the replacement Products are substantially similar in functionality; (ii) procure the right for Customer to
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continue using the infringing Products; or (iii) terminate this Agreement and, upon Customer’s return or certified destruction of the
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infringing Product, provide Customer a pro-rata refund calculated as follows: (x) for infringing Products licensed on a subscription
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basis, the refund shall consist of any prepaid but unused fees for the remainder of the applicable License Term; or (y) for infringing
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Software licensed on a perpetual basis or infringing Hardware, the refund shall consist of a straight line depreciation of the license fee
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based on a three (3) year useful life as well as any prepaid but unused fees for separately charged Support Services. This Section 9 sets
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forth Tenable’s sole and exclusive liability and Customer’s sole and exclusive remedy with respect to any claim of intellectual property
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infringement.
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(c) Exclusions. Tenable shall have no liability with respect to a third party intellectual property infringement claim arising out
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of: (i) modifications of the Product made by Customer or a party under its control to conform with Customer’s specifications; (ii)
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modifications of the Product made by anyone other than Tenable or a Tenable authorized third party; (iii) Customer’s use of the Product
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in combination with other products or services not provided by Tenable; (iv) Customer’s failure to use any updated versions of the
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Product made available by Tenable; or (v) Customer’s use of the Product in a manner not permitted by this Agreement or otherwise not
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in accordance with the Documentation.
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(d) Requirements. The indemnitor shall only be responsible for the indemnification obligations set forth in this Section 9 if
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the indemnitee: (i) provides the indemnitor prompt written notice of such action or claim; (ii) gives the indemnitor the right to control
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and direct the investigation, defense, and/or settlement of such action or claim; (iii) reasonably cooperates with the indemnitor in the
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defense of such a claim (at the indemnitor’s expense); and (iv) is not in breach of this Agreement. Nothing herein shall prevent the
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indemnitee from engaging in defense of any such claim with its own legal representation, provided that this does not materially prejudice
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|
the indemnitor’s defense. The indemnitor may not settle any claim on behalf of the indemnitee without obtaining the indemnitee’s prior
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written consent; provided, however, the indemnitor shall not be required to obtain consent to settle a claim which settlement consists
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|
solely of: (x) discontinued use of infringing Products and/or (y) the payment of money for which the indemnitor has a duty to indemnify.
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10. Legal Compliance.
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(a) Generally. The Products are intended solely for lawful purposes and use. Both Parties, and their agents and Affiliates,
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|
agree to perform their respective obligations in an ethical manner that complies with all applicable national, federal, state and local laws,
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|
|
statutes, ordinances, regulations and codes (“Applicable Laws”) including, without limitation, the Computer Fraud and Abuse Act
|
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|
|
(CFAA), 18 USC Sec. 1030, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and the UK Bribery Act of 2010. If Customer
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|
violates this Section 10, Tenable may terminate this Agreement immediately.
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(b) Trade Controls. Applicable Laws include U.S. export laws (including the International Traffic in Arms Regulation (ITAR),
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|
22 CFR 120-130, and the Export Administration Regulation (EAR), 15 CFR Parts 730 et seq.) and the anti-boycott rules implemented
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|
|
by the Departments of Commerce and Treasury. Information regarding export classifications of Tenable’s Products may be found on
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|
|
its website (www.tenable.com/export-controls or a successor location). Customer agrees that it will be the exporter of record any time
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|
it causes the Products to be accessed outside the United States or by a national of any country other than the United States. The Parties
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|
|
further agree to comply with trade and economic sanctions, rules, and regulations of the United States, European Union, EU member
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|
states, United Kingdom and other applicable government authorities and shall not engage in prohibited trade to persons or entities who
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|
are the subject of an active sanction, embargo, or executive order. Customer hereby acknowledges and confirms that Customer
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|
(including Customer’s officers, directors, employees, representatives and agents): (i) is not included on, owned or controlled by an
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|
individual or entity included on, or acting on behalf of an individual or entity included on any of the restricted party lists maintained by
|
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|
|
the U.S. Government (e.g., Specially Designated Nationals List, Foreign Sanctions Evader List, Sectoral Sanctions Identification List,
|
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|
|
Denied Persons List, Unverified List, Entity List or List of Statutorily Debarred Parties) (collectively, “Restricted Parties”); (ii) will not
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|
|
export, re-export, transfer, re-transfer or otherwise ship, directly or indirectly, the Products or related technology to or for use by or for
|
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|
|
Restricted Parties; (iii) will not export, re-export, transfer, re-transfer or otherwise ship, directly or indirectly, the Products or related
|
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|
|
technology to or for use in, by or for countries or territories subject to U.S. economic sanctions (e.g., Crimea, Cuba, Iran, North Korea,
|
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|
|
or Syria); or (iv) will not use or sell the Products for nuclear end-uses, rocket systems, unmanned air vehicles, chemical or biological
|
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|
|
weapons, maritime nuclear propulsion, weapons of mass destruction or other restricted end-uses except to the extent consistent with
|
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|
|
Trade Control Laws.
|
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|
(c) Data Processing Addendum. To the extent applicable, if Tenable is processing personal information on behalf of Customer
|
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|
|
under any applicable data protection law (e.g., the European Union’s General Data Protection Regulation 2016/679), then such
|
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|
|
processing shall be in accordance with Tenable’s Data Processing Addendum located at
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|
|
http://static.tenable.com/prod_docs/tenable_slas.html (or a successor location).
|
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|
11. Governing Law; Venue.
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(a) For transactions with Tenable, Inc. and Tenable Public Sector LLC, this Agreement shall be governed in all respects by
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|
|
the laws of the State of Delaware, USA, without regard to choice-of-law rules or principles. The Parties agree that: (i) no aspect or
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|
provision of the Uniform Computer Information Transactions Act shall apply to this Agreement; and (ii) this Agreement shall not be
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|
governed by the U.N. Convention on Contracts for the International Sale of Goods. The Parties hereby submit to the exclusive
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|
|
jurisdiction of the courts of Howard County, Maryland, and the United States District Court for Maryland, Baltimore Division, for any
|
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|
|
question or dispute arising out of or relating to this Agreement. Due to the high costs and time involved in commercial litigation before
|
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|
|
a jury, the Parties waive all right to a jury trial with respect to any issues in any action or proceeding arising out of or related to this
|
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|
|
Agreement.
|
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|
(b) For transactions with Tenable Network Security Ireland Limited, this Agreement and any issues, disputes or claims arising
|
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|
|
out of or in connection with it (whether contractual or non-contractual in nature such as claims in tort, from breach of statute or regulation
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|
|
|
or otherwise) (“Disputes”) shall be governed by, and construed in accordance with, the laws of Ireland. Customer expressly agrees with
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|
Tenable that this Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the
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|
|
application of which is expressly excluded. All Disputes arising out of or relating to this Agreement shall be subject to arbitration within
|
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|
|
the meaning of the Arbitration Act 2010 or any legislation amending or repealing that act and shall be an arbitration conducted in Dublin,
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|
|
Ireland in the English language and shall be governed by the Arbitration Act 2010. Notwithstanding the foregoing, nothing in this
|
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|
|
Agreement shall limit the right of either Party to seek any injunctive, equitable or other interlocutory relief as it may be entitled to in the
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|
Courts of Ireland.
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12. Other Legal Clauses.
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|
(a) Third Parties. Customer may permit a third party (“Customer’s Agent”) to use the Products to perform security services
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|
for and on behalf of Customer but solely for Customer’s benefit and solely for Customer’s internal business purposes. Customer shall
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|
|
be fully responsible for Customer’s Agent’s use of the Products, including liability for any breach of this Agreement or use beyond the
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|
|
licensed quantities set forth in the Ordering Document. If Customer elects to utilize a Customer’s Agent to perform Scans on its behalf,
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|
|
then only Customer’s Agent (and not Customer) will be permitted to contact Tenable Support Services. Tenable shall have the right to
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|
|
withdraw its consent to the use of any Customer’s Agent in its reasonable discretion.
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(b) Notices. Any legal notices or other communication pursuant to this Agreement must be in writing, in English, and will be
|
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|
|
deemed to have been duly given when delivered if delivered personally or sent by recognized overnight express courier. All notices to
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|
Tenable must be sent to the address described in this Agreement to the attention of the Legal Department (unless otherwise specified by
|
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|
|
Tenable). All notices Tenable sends to Customer shall be at the physical address referenced in this Agreement (or otherwise provided
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|
to Tenable). Tenable may provide notices with regard to Products via the email address Customer provided during Product registration
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|
and Customer hereby consents to receive such communications from Tenable in an electronic form.
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(c) Assignment. Neither Party may assign or otherwise transfer this Agreement without the other Party’s prior written consent,
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|
|
which will not be unreasonably withheld; provided, however, either Party may transfer this Agreement to an Affiliate or in connection
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|
|
with a merger or sale of all (or substantially all) of the stock or other ownership units of such Party. Customer must complete Tenable’s
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|
License Assignment Request Form (to be provided upon request) in order to complete assignment of this Agreement.
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(d) Force Majeure. With the exception of payment, neither Party shall be liable for any loss or delay (including failure to meet
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|
|
the service level commitment) resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster,
|
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|
terrorism, labor stoppage, Internet service provider failures or delays, civil unrest, war or military hostilities, or criminal acts of third
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|
parties, and any Delivery date shall be extended to the extent of any resulting delay.
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(e) Language. The language of this Agreement is English and all invoices and other documents given under this Agreement
|
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|
|
must be in English to be effective. No translation, if any, of this Agreement or any notice will be of any effect in the interpretation of
|
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|
|
this Agreement or in determining the intent of the parties. The Parties have expressly agreed that all invoices and related documents be
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|
drafted in English. The following shall apply solely for Agreements which are under French Canadian jurisdiction: C’est la volonté
|
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|
expresse des parties que la presente convention ainsi que les documents qui s’y rattacent soient rediges en anglais.
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13. Evaluations and NFR Licenses.
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(a) Evaluations. If Customer wants to conduct an evaluation, proof of value or other similar trial of Tenable Products
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|
(“Evaluation Products”), Tenable may (in its sole discretion) provide evaluation licenses for such Evaluation Products in accordance
|
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|
|
with the following: (i) Customer shall have no obligation to make payment for such Evaluation Product for such evaluation usage; (ii)
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|
the license term will expire at the end of the agreed-upon evaluation period, at which time Customer must either return or destroy the
|
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|
|
Software and cease access to the Hosted Services; and (iii) Tenable shall have no obligation to provide Support Services.
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|
Notwithstanding the foregoing, to facilitate a transition from an evaluation to a paid subscription, in certain cases Tenable may allow
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|
|
Customer to continue to use containers (or otherwise migrate data) generated during an evaluation period. Customers may not use the
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|
Evaluation Products to scan third party Scan Targets or provide a service to Customer’s clients.
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(b) Container Access. Customer acknowledges that a Tenable employee may request access to the Evaluation Products in
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|
|
the Customer environment (which may occur in a production container) in order to maximize the effectiveness of the Evaluation
|
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|
Products and to set up certain configurations, and this may be done without the Customer being present but will be subject to prior
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written consent from Customer.
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(c) Early Access. Tenable may make some versions of Products available to Customer on an alpha, beta, or early access
|
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|
basis (each, an “Early Access Product”). Customer’s access to the Early Access Product may be discontinued at any time. Early
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|
|
Access Products remain subject to all applicable license restrictions. Tenable may not offer Support Services for Early Access
|
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|
|
Products. No warranty or service level commitment made under this Agreement will apply to Early Access Products.
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|
(d) Technology Partners. Tenable in its sole discretion may allow Customers who are technology partners (a “Technology
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|
|
Partner”) to obtain an Evaluation license and use such evaluation license to create an interoperability (“Interoperability”) between
|
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|
|
Tenable Products and their own products. At the conclusion of the Evaluation Term, Customer may apply for an NFR license at which
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|
|
time Tenable may convert the Evaluation license to an NFR license. Tenable’s conversion to an NFR license shall be at Tenable’s sole
|
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|
discretion and may require Interoperability validation by Tenable.
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|
(e) NFR. If Customer is a sales partner or Technology Partner to whom a “Not For Resale” or “NFR” license has been granted,
|
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|
|
Customer’s license to the Product will commence upon Delivery and continue for a period of one year (unless the Ordering Document
|
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|
|
sets forth a different term) and shall automatically renew for consecutive one (1) year terms unless either Party provides the other Party
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|
with written notice of its non-renewal of the NFR license at least thirty (30) days before the expiration of the then-current term.
|
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|
Notwithstanding the foregoing, Tenable may terminate Customer’s NFR license for its convenience upon thirty (30) days’ notice, or
|
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|
immediately should Customer breach any obligations under this Agreement.
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(f) NFR Customer Prohibitions. Customer shall not purport to take on any obligation or responsibility, or make any
|
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|
|
representations, warranties, guarantees or endorsements to anyone on behalf of Tenable, including without limitation, relating to Tenable
|
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|
products, software, or services. Except as specifically permitted in this Agreement, Customer shall not state or imply that any of
|
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|
|
Customer’s products have been endorsed, reviewed, certified or otherwise approved by Tenable. Customer may not use Products
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|
|
provided under an NFR license: (i) in a production environment, (ii) to protect its own networks, (iii) as part of a service provided to its
|
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|
|
customers, or (iv) to perform customer evaluations.
|
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|
(g) NFR Customer Representations. Customer hereby represent and warrant to Tenable that: (i) Customer will not intentionally
|
|
|
|
|
harm the reputation or goodwill of Tenable through any act or omission, and (ii) Customer have used commercially reasonable efforts
|
|
|
|
|
to ensure that any software, code, algorithm, API, etc., transferred to Tenable is free from any time bomb, virus, drop dead device,
|
|
|
|
|
worm, Trojan horse, or trap door that is designed to delete, disable, deactivate, interfere with, or otherwise harm hardware, data, or other
|
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|
|
programs or that is intended to provide access or produce modifications not authorized by Tenable.
|
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|
(h) NFR Customer Responsibilities. Customer shall, at its sole cost and expense, defend (or at its option, settle) and indemnify
|
|
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|
|
Tenable and Tenable’s subsidiaries and affiliates, and their officers, directors, employees, representatives and agents, from and against
|
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any and all third party claims brought against Tenable based upon a claim that use of Customer’s software or Customer’s product in
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accordance with this Agreement infringes such third party’s patent, copyright or trademark or misappropriates any trade secret, and shall
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pay all settlements entered into and damages awarded to the extent based on such claim or action.
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14. General.
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This Agreement constitutes the entire agreement between the Parties, and supersedes all other prior or contemporaneous
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communications between the Parties (whether written or oral) relating to the subject matter of this Agreement. No Customer document,
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purchase order, request for proposal, or other specifications requirement shall modify, supersede, or become part of this Agreement, or
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otherwise contractually bind Tenable unless signed by Tenable. The provisions of this Agreement will be deemed severable, and the
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unenforceability of any one or more provisions will not affect the enforceability of any other provisions. If any provision of this
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Agreement, for any reason, is declared to be unenforceable, the Parties will substitute an enforceable provision that, to the maximum
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extent possible under applicable law, preserves the original intentions and economic positions of the Parties. Section headings are for
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convenience only and shall not be considered in the interpretation of this Agreement. Customer agrees that Tenable may use Customer’s
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name or logo in a customer list. Customer may not use Tenable’s name or logo without prior written consent and in accordance with
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Tenable’s guidelines. No failure or delay by a Party in exercising any right, power or remedy will operate as a waiver of that right,
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power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving Party. If a Party waives any right,
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power or remedy, the waiver will not waive any successive or other right, power or remedy the Party may have under this Agreement.
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The Parties are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment,
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franchise or agency between the Parties. Nothing in this Agreement shall prevent Tenable from subcontracting any of its obligations
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hereunder; provided, however, that Tenable’s use of a subcontractor shall not release Tenable from any duty or liability to fulfill its
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obligations under this Agreement and Tenable shall be liable for any act or omission of a subcontractor to the same extent as if the act
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or omission had been made by Tenable. This Agreement is not intended nor will it be interpreted to confer any benefit, right or privilege
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in any person or entity not a party to this Agreement. Any party who is not a party to this Agreement has no right under any law to
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enforce any term of this Agreement. Any provision of this Agreement that imposes or contemplates continuing obligations on a Party
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and any section which by its nature is intended to survive will survive the expiration or termination of this Agreement, including Sections
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3, 4, 6, 8, 9 and 11.
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15. Government Entities. This Section 15 shall only apply to Government Customers, as defined below.
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If Customer is an agency or instrumentality of a sovereign government (a “Government Customer”), all Government Customer
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end users acquire the rights to use and/or access the Products and or Services with only those rights set forth herein (consistent with 48
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C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4). The terms and conditions of this Agreement govern Government
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Customer’s use and disclosure of the Products and supersede any conflicting terms and conditions that may be applicable through the
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Government Customer’s procurement regulations. If this Agreement fails to meet the Government Customer’s needs or is inconsistent
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in any way with federal law, the government must return the Product, unused, to Tenable. If Customer is prohibited by law, regulation,
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or relevant attorney general opinion from agreeing to any clause of this Agreement (collectively, “Restrictions”), the Agreement shall
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be modified to the extent required under such Restrictions. Each of the components that constitute the Product is a “commercial item”
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as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and/or “commercial computer software
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documentation” as such terms are used in 48 C.F.R. 12.212.
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SCHEDULE A: SOFTWARE
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This Schedule for Tenable Software is subject to and made part of the Agreement.
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1. General. This Schedule governs Customer’s license of Software.
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2. License; Right to Use. Subject to the terms of the Agreement and payment of the applicable license fees, Tenable grants
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Customer for the duration of the License Term a non-exclusive, non-transferable, non-sublicensable license to use the Software
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(in object code form only) solely for Customer’s or Customer’s Affiliates own internal business purposes. Customer’s right to
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install such Software is limited to use with the computers or machines for which the Software is registered for use. Customer
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is permitted to make one copy of the Software for backup or archival purposes.
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3. Warranty. Tenable warrants that the Software shall materially conform to the Documentation for a period of thirty (30) days
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after Delivery. Customer’s sole and exclusive remedy for breach of this warranty shall be for Tenable to, at its sole option: (i)
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use commercially reasonable efforts to modify or correct the Software such that in all material respects it conforms to the
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functionality described in the Documentation; or (ii) if Tenable is unable to restore such functionality within sixty (60) days,
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Customer shall be entitled to a refund for the non-conforming Software.
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4. Open Source and Third Party Software. Any code or other intellectual property included as part of the Software that was
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licensed to Tenable by third parties that is not marked as copyrighted by Tenable is subject to other license terms that are
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specified in the Documentation available on Tenable’s website at https://docs.tenable.com/licensedeclarations/ (or a successor
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location). Customer agrees to be bound by such other license terms.
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5. Compliance Rights. Tenable may, by itself or through an independent third party, review Customer’s usage of the Software to
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confirm compliance with this Agreement or the applicable Ordering Document. Tenable shall: (i) provide Customer with
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reasonable advance notice of the review; (ii) not request such review more than once per year; and (iii) not unreasonably
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interfere with Customer’s business activities when conducting the review.
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SCHEDULE B: HOSTED SERVICES
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This Schedule for Tenable Hosted Services is subject to and made part of the Agreement.
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1. General. This Schedule governs Customer’s use of the Hosted Services.
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2. License; Right to Use. Subject to the terms of the Agreement and payment of the applicable license fees, Tenable grants
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Customer for the duration of the License Term a non-exclusive, non-transferable, non-sublicensable right to access the Hosted
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Environment and use those modules of the Hosted Services set forth on a valid Ordering Document solely for Customer’s or
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Customer’s Affiliates own internal business purposes.
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3. Warranty. Tenable warrants that the Hosted Services will materially comply with the functionality described in the
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Documentation. Customer’s sole and exclusive remedy for breach of this warranty shall be for Tenable to use commercially
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reasonable efforts to modify the Hosted Services to provide in all material respects the functionality described in the
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Documentation. If Tenable is unable to restore such functionality within sixty (60) days, Customer shall be entitled to terminate
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the Agreement and receive a pro-rata refund of any prepaid but unused fees for the nonconforming Hosted Services. Tenable
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shall have no obligation with respect to a warranty claim hereunder unless Customer notifies Tenable of such claim within
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thirty (30) days of the date the underlying condition first arose. This warranty shall only apply if the applicable Hosted Service
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has been utilized in accordance with the Agreement and the Documentation.
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4. Acknowledgements. By initiating a Scan, Customer authorizes Tenable to access the Scan Targets in the context of the Scans.
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Customer understands and acknowledges that the Scans may originate or appear to originate from a Tenable URL which could
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cause Customer (or the owner of the Scan Targets) to believe they are under attack. Customer agrees not to pursue any claims
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against Tenable as a result of any access to Scan Targets when such access was made in connection with an authorized Scan
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unless such a claim is based on the gross negligence or willful misconduct of Tenable.
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5. Usage Requirements. Customer must provide current and accurate information in all submissions made in connection with the
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Hosted Services, including registration information and the location of the Scan Targets to be Scanned. Tenable may, in its
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reasonable discretion, prohibit or suspend access of certain users of the Hosted Services. In the event Tenable suspects or
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anticipates such suspension, Tenable will, to the extent practical under the circumstances, use commercially reasonable efforts
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to provide Customer with prior written notice of the suspension and an opportunity to cure the issue prior to (and in avoidance
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of) suspension. Customer acknowledges that under certain circumstances such prior notice and/or cure period may not be
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possible or practical. Customer agrees to safeguard and maintain the confidentiality of all user names and passwords. Customer
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further agrees to use best efforts to ensure that no unauthorized parties have access to the Hosted Services through Customer’s
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account and/or log-in credentials. Customer will promptly notify Tenable of any unauthorized access of which Customer is
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aware or reasonably suspects. Customer is responsible for compliance with this Agreement and all use of the Hosted Services
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through Customer’s account.
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6. PCI Scans. Tenable makes no guarantee that a successful completion of a PCI Scan will make Customer compliant with the
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Payment Card Industry Data Security Standard.
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7. Data Retention Policy. Customer has the option to select the duration of the data retention period of Scan Data in the Hosted
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Environment in accordance with the limitations described in the Documentation. Customer acknowledges that Tenable is in
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no way responsible for any of Customer’s data retention compliance requirements. Tenable’s data retention policy with respect
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to PCI Scans will match then-current requirements set forth by the PCI Security Standards Council.
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8. Service Level Agreement. Tenable commits to make access to the Hosted Environment available in accordance with Tenable’s
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then-current service level agreement, available at http://static.tenable.com/prod_docs/Service_Level_Agreement.pdf (or a
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successor location).
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SCHEDULE C: PROFESSIONAL SERVICES
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This Schedule for Tenable Professional Services is subject to and made part of the Agreement.
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1. General. The Parties may agree, from time to time, on the purchase and sale of Tenable Professional Services, which may be
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further described in a separate SOW or Services Brief. Except as otherwise agreed to by the Parties in writing, all Services
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Briefs or SOWs will be governed by this Agreement. In the event of inconsistency between the Agreement and a signed SOW,
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the signed SOW shall govern.
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2. Type of Services. Tenable offers a range of Professional Services; provided, however, unless otherwise agreed upon in writing,
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Tenable does not offer creation of custom intellectual property. Tenable is not obligated to provide any Professional Services
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except as mutually agreed in a Services Brief or SOW.
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3. Deliverables. “Deliverable(s)” means the reports, analysis, codes, scripts, slides, documents, examples and other written
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materials or work results provided as part of the Professional Services.
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4. Intellectual Property Rights.
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(a) Grant of License in Deliverables. Tenable grants Customer a non-exclusive, non-transferable, irrevocable (except in case of
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breach of the Agreement or SOW) perpetual right to use, copy and create derivative works from the Deliverables (without the
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right to sublicense) for Customer’s or Customer’s Affiliates internal business operations, as contemplated by the applicable
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SOW or Services Brief.
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(b) Reservation of Rights. Except for the rights expressly granted herein to Customer, Tenable expressly reserve all other rights
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in and to the Professional Services and Deliverables. Notwithstanding anything to the contrary in this Schedule, nothing shall
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prevent Tenable from providing similar Professional Services to other customers and nothing in this Schedule shall be construed
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to provide any intellectual property rights whatsoever in the Products (or any modifications or enhancements thereto) that
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Tenable develops or makes generally available for sale to its customers.
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(c) Pre-Existing Materials. Any pre-existing materials, proprietary item or intellectual property rights of either Party which is
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disclosed or used in performing the Professional Services shall remain fully vested in such Party. Nothing in this Schedule
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shall transfer any rights whatsoever in Tenable’s Products. Customer hereby grants to Tenable the intellectual property rights
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(if any) required for Tenable to perform the Professional Services.
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5. Warranty. Tenable warrants that all Professional Services shall be performed in a professional manner and in accordance with
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industry standards. Tenable further warrants for a period of ten (10) days from the service completion date that the Professional
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Services shall materially conform to the applicable SOW or Services Brief. If Customer provides written notice of a nonconformity
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during this warranty period, Tenable shall promptly confirm the non-conformity and upon confirmation, Tenable’s
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entire liability and Customer’s exclusive remedy shall be for Tenable to use commercially reasonable efforts to re-perform the
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Professional Services within a reasonable amount of time. If Tenable is unable to re-perform the Professional Services, then
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Tenable may elect to refund amounts paid by Customer for the non-conforming Professional Services.
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6. Scheduling; Cancellation. Professional Services must be scheduled within nine (9) months of the date of the Ordering
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Document under which such Professional Services were purchased and completed within twelve (12) months of the Ordering
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Document. If Customer does not schedule the Professional Services within this time frame, Tenable shall have no obligation
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to perform the Professional Services or provide a refund. Tenable shall have no obligation to perform the Professional Services
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or provide a refund if Customer or Customer’s designated attendees do not attend a scheduled training session or cancel a
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Professional Services engagement without providing proper notice. Customer must provide Tenable at least five (5) business
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days’ notice to reschedule any Professional Services. Tenable reserves the right, directly or through a Reseller, to invoice
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Customer monthly for travel expenses incurred in the prior month.
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7. Customer Responsibilities. For Professional Services occurring on Customer’s site, Tenable agrees to comply with applicable
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and reasonable security procedures provided Customer provides Tenable with such written procedures in advance. Some of
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the Professional Services may require Customer to have specialized knowledge or meet particular software or hardware
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requirements (for example, appropriate computers or appliances, stable Internet connection or up-to-date web browsers or
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operating system, etc.). If technical issues arise during the Professional Services, Tenable will use commercially reasonable
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efforts to resolve such issues, but will have no liability based on Customer’s failure to meet technical requirements. Tenable
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will not provide any refund based on Customer’s failure to meet these prerequisites.
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8. Changes. Either Party may request that a change be made to the Professional Services. Tenable reserves the right to charge a
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fee for any material changes to the Professional Services. No changes shall be binding unless executed by both Parties.
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9. Non-Solicitation. During the term that Professional Services are being provided and for a period of one (1) year after their
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completion, Customer will not, either directly or indirectly, solicit for employment any person employed by Tenable or any of
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its Affiliates that have provided Customer Professional Services under this Agreement. For the avoidance of doubt, this
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restriction shall not prevent Customer from hiring based on a response to Customer’s advertising in good faith to the general
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public a position or vacancy to which an employee or worker of Tenable responds, provided that no such advertisement shall
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be intended to specifically target Tenable personnel.
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Tenable Confidential and Proprietary Tenable Master Agreement v.6 2.2023
|
root
1 year ago