Binaris Platform Terms and Conditions
THIS BINARIS PLATFORM TERMS OF SERVICE TERMS (THIS "AGREEMENT") IS A LEGAL AGREEMENT THAT GOVERNS YOUR USE OF THE BINARIS PLATFORM AND THE PROVISION OF RELATED SERVICES BY BINARIS, INC. ("BINARIS"). BY ACCEPTING THIS AGREEMENT, OR BY USING THE BINARIS PLATFORM, YOU ("CUSTOMER") AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS.
AGREEMENT AND MAY NOT USE THE BINARIS PLATFORM. BINARIS MAY MAKE CHANGES TO THE BINARIS PLATFORM AT ANY TIME. IN ADDITION, BINARIS MAY MAKE CHANGES TO THIS AGREEMENT AT ANY TIME, AND WILL POST NOTIFICATION OF SUCH CHANGES ON THE PLATFORM. CUSTOMER'S CONTINUED USE OF THE BINARIS PLATFORM AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY CUSTOMER'S ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS.
DEFINITIONS. The following terms shall have the meanings set forth below:
- "Ancillary Services" means implementation, training or consulting services that Binaris may perform as described in a SOW executed by the parties.
- "Binaris Platform" means Binaris' cloud-based serverless computing platform, but excludes any Open Source Software that may be used to provide the platform.
- "Customer Data" means any and all information, data, software code, text, and other material transmitted or provided by Customer to the Binaris Platform.
- "Documentation" means the printed, paper, electronic or online user instructions and help files made available by Binaris for use with the Binaris Platform, as may be updated from time to time by Binaris.
- "Effective Date" is the date on which Customer first orders the Services.
- "Open Source Software" means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).
- "Services" means the services provided hereunder, including Ancillary Services, Support (as defined below) and access to the Binaris Platform.
- "Statement of Work" or "SOW" means a written statement of work entered into and signed by the parties describing Ancillary Services to be provided by Binaris to Customer.
ORDERS, LICENSE AND RESTRICTIONS.
- Orders. Subject to the terms of this Agreement, Customer may register to use the Binaris Platform and other Services pursuant to the Binaris online registration form. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Binaris regarding any future functionality or features.
- License Grant. Subject to the terms and conditions of this Agreement (including payment of all applicable fees), and during the term of this Agreement, Binaris hereby grants to Customer, a limited, non-exclusive, non-transferable license (without the right to sublicense) to access and use the Binaris Platform for its personal or internal business use only. Customer's use of the Binaris Platform may be subject to certain limitations, such as, for example, limits on compute time. Any such limitations will be specified either in the Binaris Platform or in the Documentation.
- License Restrictions. Customer shall not, directly or indirectly, and Customer shall not permit any third party to, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Binaris Platform; (ii) modify, translate, or create derivative works based on any element of the Binaris Platform or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Binaris Platform; (iv) use the Binaris Platform for timesharing or service bureau purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer at the Facilities; (v) remove any proprietary notices from Binaris materials furnished or made available to Customer; (vi) publish or disclose to third parties any evaluation of the Binaris Platform without Binaris's prior written consent; or (vii) use the Binaris Platform for any purpose other than its intended purpose.
THIRD PARTY HOSTING. Binaris may use the services of one or more third parties to deliver any part of the Services. Binaris will pass-through any warranties to the extent that Binaris receives any from its then current third-party service provider that it can provide to Customer.
REGISTRATION; PASSWORDS; SECURITY.
- Registration. Customer agrees to provide complete, accurate and current information when registering an account to use the Binaris Platform and other Services, and shall update such registration information promptly should it change or become inaccurate.
- Passwords. Customer will create a user identification and associated password for access to and use of the Binaris Platform. Customer is responsible for maintaining the confidentiality of all user identifications and/or passwords and for ensuring that each user identification number and/or password is used only by Customer. Customer is solely responsible for any and all activities that occur under Customer's account and all charges incurred from use of the Binaris Platform accessed with such user identification and/or password. Customer will not share its password. Customer agrees to immediately notify Binaris of any unauthorized use of Customer's account, any user identification and/or password, or any other breach of security known to Customer. Binaris shall have no liability for any loss or damage arising from Customer's failure to comply with the terms set forth in this Section.
- Security. Binaris will deploy industry standard security precautions intended to protect against unauthorized access to any Customer Data stored on the Binaris Platform. Binaris will exercise commercially reasonable efforts to deploy corrections within the Binaris Platform for security breaches made known to Binaris.
- No Circumvention of Security. Customer may not circumvent or otherwise interfere with any user authentication or security of the Binaris Platform. Customer will immediately notify Binaris of any breach, or attempted breach, of security known to Customer.
- No Guaranty of Security. Customer acknowledges that, notwithstanding the security precautions deployed by Binaris, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Binaris Platform and Customer Data.
- Availability. Subject to the terms and conditions of this Agreement, Binaris will use commercially reasonable efforts to make the Binaris Platform available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which Binaris will use commercially reasonable efforts to provide at least 72 hours advance notice, and (b) any unavailability caused by circumstances of Force Majeure described in Section 17. Certain enhancements to the Binaris Platform made generally available at no cost to all subscribing customers during term of this Agreement will also be made available to Customer at no additional charge. However, the availability of some new enhancements to or features of the Binaris Platform may require the payment of additional fees, and Binaris will determine at its sole discretion whether access to any other such new enhancements will require an additional fee.
- Support. Binaris makes a variety of support services offerings available to its customers ("Support") and will provide Customer with the level of support to which Customer is entitled based on Customer's purchase as set forth on the Binaris website.
- Hardware/Software. Customer is responsible for (i) obtaining, deploying and maintaining all computer hardware, software and communications equipment needed to access and use the Binaris Platform, (ii) contracting with third parties that provide services related to Customer being able to access and use the Binaris Platform (e.g., ISP, telecommunications, etc.) and (iii) paying all third-party fees and access charges incurred while accessing and using the Binaris Platform. Binaris will not be required to supply any hardware, software or equipment to Customer by reason of this Agreement.
- Compliance with Laws. Each party represents and warrants, during the term of this Agreement, that it is in compliance with and will comply with all applicable laws and regulations applicable to its business and its performance of its obligations under this Agreement. Customer represents and warrants that its owns or has licenses to all Customer Data and has an unrestricted right to transfer such Customer Data to Binaris for purposes of providing Services under this Agreement. If applicable and to the extent Customer Data includes personal information, Customer has obtained all necessary consents and has complied with all applicable laws, rules, regulations and orders, including without limitation, all data privacy laws, in collecting, processing, using and transferring such personal information to Binaris for purposes of providing Services to Customer under this Agreement. Customer will indemnify, defend and hold harmless Binaris, its directors, officers, employees, agents, successors and assigns from any third party claims, actions, suits, liabilities, losses, damages, costs and expenses (including reasonable attorneys' fees) arising out of or related to (i) Customer's breach of this Section, (ii) the provision of Customer Data to Binaris or (iii) the storage, processing or display of Customer Data by the Binaris Platform.
- Conduct. Customer shall be solely responsible for its actions while using the Binaris Platform. Customer acknowledges and agrees (i) that Customer is responsible for selecting appropriate remediation for, and resolving, any issues found on Customer's network, hardware, software, or third party services relied on by Customer to access and use the Binaris Platform (collectively, "Customer Items"); and (ii) that Binaris is not liable for, or responsible to, remediate any issues found regarding Customer Items. Customer agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer's use of the Binaris Platform; (b) not to send or store data on or to the Binaris Platform which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain viruses, worms, Trojan Horses, corrupted files, or any other similar software or programs, harmful code or data that may damage the operation of the Binaris Platform or another's computer or mobile device; (d) not to use the Binaris Platform for illegal, fraudulent, unethical or inappropriate purposes; (e) not to interfere or disrupt networks connected to the Binaris Platform or interfere with other ability to access or use the Binaris Platform; (f) not to distribute, promote or transmit through the Binaris Platform any unlawful, harmful, defamatory, obscene, pornographic or otherwise objectionable material of any kind or nature; (g) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (h) not to interfere with another customer's use and enjoyment of the Binaris Platform or another person or entity's use and enjoyment of similar services; (i) not to use the Binaris Platform in any manner that impairs the Binaris Platform, including without limitation the servers and networks on which the Binaris Platform are provided; (j) not to run Maillist, Listserv, any form of auto-responder or "spam" on the Services, or that otherwise interfere with the proper working of the Binaris Platform (including by placing an unreasonable load on the Binaris Platform infrastructure); (k) not to launch any program that "crawls," "scrapes," or "spiders" any page, data, or portion of the Binaris Platform (through use of manual or automated means); and (l) to comply with all regulations, policies and procedures of networks connected to the Binaris Platform and Binaris's service providers. Customer acknowledges and agrees that Binaris neither endorses the contents of any Customer communications or Customer Data, nor does Binaris assume any responsibility for any offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby. Binaris may remove any violating content posted or stored using the Binaris Platform or transmitted through the Binaris Platform, without notice to Customer. Notwithstanding the foregoing, Binaris does not and is not obligated to verify, authenticate, monitor or edit the Customer Data or any other information or data input into or stored in the Binaris Platform for completeness, integrity, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data input into the Binaris Platform. Binaris does not guarantee or make any promises regarding the accuracy or completeness of the Customer Data, or any such other data or information.
ANCILLARY SERVICES. Binaris shall use commercially reasonable efforts to perform the Ancillary Services as set forth in applicable mutually executed SOWs. Each SOW will include, at a minimum: (a) a description of the scope of Ancillary Services, (b) any work product or other deliverables to be provided to Customer (each a "Deliverable"), (c) the schedule for the provision of Ancillary Services, and (d) the applicable fees and payment terms for such Ancillary Services. All SOWs shall be deemed part of and subject to this Agreement. If there is any inconsistency between an SOW and this Agreement, the SOW shall control. If either Customer or Binaris requests a change to the scope of Ancillary Services described in a SOW, the party seeking the change shall propose such change by written notice. Promptly following the other party's receipt of the written notice, the parties shall discuss and agree upon the proposed changes. Binaris will prepare a change order document describing the agreed changes to the SOW and any applicable change in fees and expenses (a "Change Order"). Change Orders are not binding unless and until executed by both parties. Executed Change Orders shall be deemed part of, and subject to, this Agreement. Binaris and Customer shall cooperate to enable Binaris to perform the Ancillary Services according to the dates of performance and delivery terms set forth in each SOW. In addition, Customer shall perform any Customer obligations specified in each SOW. In the event the Ancillary Services are not performed in accordance with the terms of the applicable SOW, Customer shall notify Binaris in writing no later than thirty (30) calendar days after performance of the affected Ancillary Services by Binaris, Customer's notice shall specify the basis for non-compliance with the SOW and Binaris shall re-perform the Ancillary Services at no additional charge to Customer or refund to Customer the applicable fees for the affected Deliverable or Ancillary Service. THE FOREGOING CONSTITUTES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND BINARIS' SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR NON-PERFORMANCE OF THE ANCILLARY SERVICES.
FEES AND TAXES.
- Fees. Customer agrees to pay all fees specified in applicable SOWs and all fees and charges set forth in the Binaris then current pricing schedule for access and use of the Binaris Platform and other Services (collectively, "Fees"). Except as provided for herein, all payment obligations are non-cancelable and fees paid are non-refundable.
- Payments. Customer agrees to provide a valid credit card or debit card to pay for monthly Fees and authorizes Binaris to charge such credit card or debit card on a monthly basis for the applicable Fees until the Services are terminated under this Agreement. Customer is responsible for providing complete and accurate billing and contact information to Binaris and notifying Binaris of any changes to such information.
- Taxes. The Fees are exclusive of all sales, use, value added and other taxes or duties and Customer shall pay all such taxes (excluding taxes based on Binaris's net income).
- Binaris Services. As between Binaris and Customer, all right, title and interest in the Services and any other Binaris materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Binaris Platform, including all copyright rights, patent rights, trademark rights, and other intellectual property rights in each of the foregoing, belong to and are retained solely by Binaris or Binaris's licensors and providers, as applicable. Customer hereby does and will irrevocably assign to Binaris all ideas, feedback and suggestions made by Customer to Binaris regarding the Binaris Platform (collectively, "Feedback") and all intellectual property rights in the Feedback. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Binaris may reasonably request, to perfect such ownership of the Feedback. To the extent any of the rights, title and interest in and to Feedback or intellectual property rights therein cannot be assigned by Customer to Binaris, Customer hereby grants to Binaris an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. Except for the express licenses granted in Section 2.2 (License Grant), there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in this Agreement are reserved by Binaris.
- Customer Data. As between Binaris and Customer, all right, title and interest in the Customer Data and all intellectual property rights in each of the foregoing, belong to and are retained solely by Customer. Binaris shall have a royalty- free, worldwide right to collect, store, retain, analyze and process Customer Data for the purposes of performing its obligations under the Agreement and in connection with Customer’s use of the Binaris Platform. In addition, Binaris may monitor Customer's use of the Services and use data and information related to such use and Customer Data in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between Binaris and Customer, all right, title and interest in the Aggregated Statistics and all intellectual property rights therein, belong to and are retained solely by Binaris. Binaris may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.
- Binaris Developments. All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of Binaris, whether solely or jointly, including without limitation, in connection with Binaris' performance of the Ancillary Services hereunder, including (unless otherwise expressly set forth in an applicable SOW) all Deliverables ("Binaris Developments") and all Intellectual Property Rights therein, shall be the sole and exclusive property of Binaris. Customer agrees that, except for Customer Confidential Information, to the extent that the ownership of any contribution by Customer or its employees to the creation of the Binaris Developments is not, by operation of law or otherwise, vested in Binaris, Customer hereby assigns and agrees to assign to Binaris all right, title and interest in and to such Binaris Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.
- Further Assurances. To the extent any of the rights, title and interest in and to Feedback or Binaris Developments or Intellectual Property Rights therein cannot be assigned by Customer to Binaris, Customer hereby grants to Binaris an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. If the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against Binaris those non-assignable and non-licensable rights, title and interest. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as Binaris may reasonably request, to perfect ownership of the Feedback and Binaris Developments. If Customer is unable or unwilling to execute any such document or take any such action, Binaris may execute such document and take such action on Customer's behalf as Customer's agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.
- License to Deliverables. Except for as expressly stated in an SOW and subject to Customer's compliance with this Agreement, Binaris hereby grants Customer a limited, non-exclusive, non-transferable license during the term of this Agreement to use the Deliverables solely in connection with Customer's authorized use of the Binaris Platform. Notwithstanding any other provision of this Agreement and except for as expressly stated in an SOW: (i) nothing herein shall be construed to assign or transfer any Intellectual Property Rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise ("Tools") used by Binaris to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (ii) the term "Deliverables" shall not include the Tools.
TERM AND TERMINATION.
- Term. The term of this Agreement commences on the Effective Date and continues until the Agreement is terminated as provided herein.
- Termination for Convenience. At any time, Customer shall have the right to terminate this Agreement and its use of the Binaris Platform by following the account cancellation procedure set forth on the Binaris website or by emailing Binaris customer support at email@example.com; provided, however, that under no circumstances shall Customer be entitled to any refund of any fees for its use of the Binaris Platform prior to the date of cancellation.
- Termination for Breach; Insolvency. Either party may terminate this Agreement upon written notice if the other party has breached a material term of this Agreement and has not cured such breach within thirty (30) days of receipt of written notice from the non-breaching party specifying the breach. Either party may terminate this Agreement if (i) the other party has a receiver appointed for it or its property; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency or debtor's relief law; or (iv) the other party is liquidated or dissolved.
- Failure to Pay/Customer Conduct. Binaris may suspend or terminate Customer's access to the Binaris Platform, at Binaris's sole option, with or without notice to Customer, if: (i) the Fees are not paid when due, (ii) any credit or debit card charge for Fees is declined; or (iii) if Customer breaches Section 6.2 (Compliance with Laws) or 6.3 (Conduct), and such suspension or termination will continue until the applicable issue is resolved.
- Effect of Termination. Upon termination of this Agreement, (a) Customer's use of and access to the Binaris Platform and Binaris' performance of all Support and Ancillary Services shall cease; (b) all and Statements of Work shall terminate; and (c) all fees and other amounts owed to Binaris shall be immediately due and payable by Customer, including without limitation, all fees incurred under any outstanding Statement of Work up through the date of termination for any Ancillary Services completed and a pro-rated portion of the Fees incurred for any partially completed Ancillary Services. Binaris shall have no obligation to maintain or provide any Customer Data and shall, unless legally prohibited from doing so, delete all Customer Data (but not Aggregated Statistics) in its systems or otherwise in its possession or under its control within ten (10) business days of the effective date of any termination of this Agreement. In addition, within ten (10) days of the effective date of termination each party shall: (a) return to the disclosing party, or at the disclosing party's option, the receiving party shall destroy, all items of Confidential Information (other than the Customer Data) then in the receiving party's possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to disclosing party that it has complied with the foregoing.
- Survival. The following Sections of this Agreement shall survive the termination of this Agreement: Sections 6.2 (Compliance with Laws, 8 (Fees and Taxes), 9 (Ownership) 10 (Term and Termination), 11 (Confidentiality), 12 (Warranty Disclaimer), 13 (Indemnification), 14 (Limitation of Liability), and 15 (General).
- Obligations. Each of the parties agrees to maintain in confidence any non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party ("Confidential Information"). The parties hereby agree that Binaris's Confidential Information includes the terms and conditions of this Agreement, and any discussions related thereto as well as the Binaris Platform and materials provided with respect to the Binaris Platform. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties' respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither party shall make Confidential Information available to any other person or entity without the prior written consent of the other party. Notwithstanding anything to the contrary, Customer may disclose the terms and conditions of this Agreement to a potential investor or acquirer in connection with a bona fide due diligence event
- Exclusions. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
- Destruction or Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party, or destroy, as the parties agree, all copies of the other party's Confidential Information. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving party in any form or for any reason.
WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BINARIS AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL, AND MAKE NO, WARRANTIES (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE ARISING IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE), INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. BINARIS DOES NOT WARRANT THAT THE BINARIS PLATFORM WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE BINARIS PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.
- Binaris Indemnity. Binaris shall defend, or at its option settle, any third party claims or suits against Customer based on a claim that the Binaris Platform infringes any third party intellectual property right; and Binaris shall pay any all damages, costs and expenses, including attorneys' fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such claim or suit or Binaris agreed to settlement amount; provided (a) Binaris is promptly notified by Customer in writing of such claim or suit, (b) Binaris or its designee has sole control of such defense and/or settlement, and (c) Customer gives all information and assistance requested by Binaris or such designee. To the extent that use of the Binaris Platform is enjoined, Binaris may at its option either (i) procure for Customer the right to use the Binaris Platform, (ii) replace the Binaris Platform with other suitable solution, or (iii) terminate this Agreement and refund to Customer the Fee(s) paid by Customer during the three (3) month period prior to the earlier of such termination or the unavailability of the Binaris Platform. Binaris shall have no liability under this Section or otherwise to the extent a claim or suit is based upon use of the Binaris Platform in combination with infringing Customer Data, software or hardware not provided by Binaris (other than third party software or hardware permitted by Binaris or that is intended to be used with the Binaris Platform), or any failure to use the Binaris Platform in accordance with any written instructions provided for such use. The terms in this Section shall be Customer's sole and exclusive remedy in connection with third party claims of intellectual property infringement.
- Customer Indemnity. Customer shall defend Binaris, its licensors and their respective officers, directors and employees ("Binaris Indemnified Parties") from and against any and all third-party claims which arise out of or relate to: (a) a claim or threat that the Customer Data (and/or the exercise by Binaris of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party's intellectual property rights; or (b) Customer's use or alleged use of the Binaris Platform other than as permitted under this Agreement. Customer shall pay all damages, costs and expenses, including attorneys' fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such claim. Customer's obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) Binaris providing all reasonable assistance (at Customer's expense and reasonable request) in the defense of such claim. Binaris may, at its own expense, engage separate counsel to advise Binaris regarding a third-party claim and to participate in the defense of the claim, subject to Customer's right to control the defense and settlement.
LIMITATION OF LIABILITY.
- Limitation on Direct Damages. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRIOR TO CLAIM, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, LESS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY BINARIS TO CUSTOMER IN SATISFACTION OF ANY LIABILITY UNDER THIS AGREEMENT.
- Waiver of Consequential Damages. IN NO EVENT SHALL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF PROFITS, OR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF BINARIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BINARIS WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
- Essential Purpose. Customer acknowledges that the terms in this Section 14 are an essential bases of the bargain described in this Agreement and that, were Binaris to assume any further liability, the Fees would out of necessity, be set much higher.
U.S. GOVERNMENT CUSTOMERS. If Customer is a Federal Government entity, Binaris provides the Binaris Platform, including related software and technology, for ultimate Federal Government end use solely in accordance with the following: Government technical data rights include only those rights customarily provided to the public with a commercial item or process and Government software rights related to the Binaris Platform include only those rights customarily provided to the public, as defined in this Agreement. The technical data rights and customary commercial software license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in this Agreement.
NOTICES. Binaris may give notice to Customer by means of a general notice through the Binaris Platform interface, electronic mail to Customer's e-mail address on record with Binaris, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer's address on record with Binaris. Customer may give notice to Binaris by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to Binaris, Inc., 15771 Loma Vista Ave., Los Gatos California 95032, Attention: Avner Braverman. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
GENERAL. Binaris may subcontract to third parties some or all of Binaris's obligations under this Agreement provided Binaris is liable for any act or omission of such subcontractors. This Agreement may not be assigned or transferred by Customer, without Binaris' prior written consent. Any assignment in derogation of the foregoing is null and void. Binaris may freely assign or transfer this Agreement. Notwithstanding anything to the contrary, Customer may assign this Agreement in connection with a merger, acquisition, or sale of all or substantially all of its assets or shares. This Agreement shall inure to the benefit of each party's successors and permitted assigns. This Agreement, together with all addenda, schedules, and exhibits, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements and understandings between the parties relating to the subject matter hereof. The failure of either Party to require performance by the other Party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Except as otherwise provided herein, this Agreement may be amended or superseded only by a written instrument signed by both parties. This Agreement shall be governed by the laws of the state of California, excluding its conflict of laws rules. The parties further agree that the exclusive venue and jurisdiction any dispute arising or relating to this Agreement shall be a court of competent jurisdiction located in San Francisco, California. Any provision of this Agreement held to be unenforceable shall not affect the enforceability of any other provisions of this Agreement. Neither party shall be in breach of this Agreement if its failure to perform any obligation under this Agreement, except for payment of Fees, is caused by events or conditions beyond that party's reasonable control, including, without limitation, acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or "hacker" attacks, acts of terrorism or governmental demands or requirements (each a "Force Majeure" event). Pre-printed terms and conditions on or attached to any Customer purchase order or other document shall be of no force or effect.
MARKETING. Binaris may not use Customer's name as part of a general list of customers or refer to Customer as a user and customer of the Binaris Platform in its general advertising and marketing materials, without the prior written consent of Customer.