Binalyze Software Subscription Terms
(On-Premise)

 

• Introduction

Binalyze OÜ, a private limited company established under the laws of Estonia, Hobujaama 4, 10151, Tallinn (“Company”) and its customer as specified in the given Quote (“Customer”) agree upon the provision of the Binalyze Software and related Services by executing a Quote, each Party's rights and obligations regarding the provision of the Binalyze Software and related Service are exclusively governed by the following Binalyze Software Subscription Terms (On-Prem) (“General Terms”) and the accompanying Annexes listed below (“Services Terms”). The General Terms and the Service Terms only enter into effect once a corresponding Quote has been executed by both Parties. The Quote, the General Terms and the Service Terms shall together be referred to as the "Agreement". In the event of any conflict or inconsistency between the provisions of the General Terms and the provisions of any Quote or Service Terms, the provisions positioned higher in the following list shall take precedence only to the extent of any such conflict or inconsistency:

 

1. These General Terms
2. Services Terms

• Annex A – Data Processing Agreement
• Annex B – Support Policy 

1. Quote
2. Partner Addendum (if applicable)

 

Deviations to these General Terms in a Quote shall have precedence over the General Terms if the Parties have agreed expressly to such deviation in the specific Quote referring to the respective provision(s) in these General Terms. Any deviation(s) set forth in a Quote shall apply to that particular order only.

• Definitions 

Unless otherwise defined herein, the following terms shall have the meaning set out below:

 

• “Authorized Affiliate” has the meaning given to that term in Section “Use by Authorized Affiliates”

 

• “Binalyze Software” means a standard set of digital forensics and cybersecurity incident response software provided to Customer in digital executable form together with all Updates and the respective Documentation as further described in the applicable Quote.

 

• “Company Marks” means the trademarks, trade names, service marks, logos, and/or service names of the Company.

 

• “Confidential Information” has the meaning given to that term in Section “Confidential Information”.

 

• “Contract Year” means every 12-month period during the Term of a Quote or the Agreement, calculated from its Effective Date.

 

• “Contractual Use” means the use of the Binalyze Software for the permitted use cases or any further license volume description detailed in the given Quote. By way of example (but not limited to), a Quote may set forth the permitted number of end devices (endpoints), a certain number of forensic data acquisitions, or the physical locations at which the Binalyze Software may be used.

 

• “Customer’s Services” means Customer’s consultancy and professional services applied by Customer on its End Customers’ end devices utilizing the Binalyze Software provided to Customer for the performance of such services, such as but not limited to forensic investigation, endpoint security or cyber intrusion detection services, etc.

 

• “Customer Data” means any data conveyed to Binalyze via or uploaded into support tickets opened by or on behalf of Customer, Partner, Partner’s Reseller. End Customer or an Authorized Affiliate in the course of general software Support Services or made accessible for Binalyze in any other ways under this Agreement. To clarify, Service Generated Data is not Customer Data.

 

• “Customer Marks” means the trademarks, trade names, service marks, logos, and/or service names of the Customer.

 

• “Documentation” means the documentation for the Binalyze Software generally supplied by the Company to assist Customer in the use of the Binalyze Software and which includes user and functional reference manuals and other written materials, including application notes. Binalyze may but is not obligated to provide any such Documentation under this Agreement. 

 

• “Effective Date” means the date on which a Quote and the underlying General Terms and Services Terms enter into force. This is the date of the last signature on the Quote.

 

• “End Customer” means an individual or an entity who receives Customer’s Services or subscribes to Binalyze Software provided through a Partner or a Partner’s Reseller.

 

• “Excess Volume” has the meaning given to that term in Section “Volume Fees”. 

 

• “Export Laws” means all applicable export and re-export control laws and regulations, including but not limited to the European Commission, Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.

 

• “GDPR” means General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016.

 

• “Initial Term” means, unless specified otherwise in an applicable Quote, a period of one year, starting on the Effective Date of each Quote.

 

• “Intellectual Property Rights” or “IP” means intellectual property or proprietary rights, including but not limited to copyright rights (including rights in audiovisual works), moral rights, patent rights (including patent applications and disclosures), know-how, rights of priority, trademark rights, and trade secret rights recognized in any country or jurisdiction in the world.

 

• “IT Outsourcing Services” means hosting, system integrations, IT operations and/or other similar services provided purely for the benefit of Customer by its Affiliates, third party suppliers or other service providers based on a contractual agreement or as a distinct group function within a group of affiliated companies.

 

• “Partner” is the person or entity designated in a Partner Addendum complementing this Agreement. 

 

• “Partner’s Reseller” is a reseller appointed by Partner subject to the Partner Addendum, who is entitled to resale and sublicense Binalyze Software as set forth therein.

 

• “Payment Due Date” has the meaning given to that term in Section “License Fees”.

 

• “Person Day” means the efforts of one of Company’s employees conducted within 8 (eight) hours.

 

• “Price Change Notice Date” has the meaning given to that term in Section “Price List Updates”.

 

• “Price List” means the list of suggested retail pricing per Territory as provided by Company from time to time.

 

• “Professional Services” means consulting and professional services designed to help Customer use of the Binalyze Software and/or to obtain certain customization of the Binalyze Software (if any), as agreed upon under a Quote or Statement of Work.

 

• “Quote” means an order form issued by Binalyze and executed by Customer/Partner and Binalyze specifying the Binalyze Software and Services Binalyze will provide to Customer/Partner under this Agreement.

 

• “Renewal Term” has the meaning given to that term in Section “Quote Term”.

 

• “Services” means the provision of the Binalyze Support Services and Professional Services by Company (if any), as agreed upon in the applicable Quote.

 

• “Service Generated Data” means data or information about the operation, delivery, usage or performance of the Binalyze Software, including, for clarity, activity logs or other data or information about Customer’s, Partner’s, Partner’s Reseller’s and End Customer’s usage of the Binalyze Software. Such data or information may be generated or derived automatically by the Binalyze Software or tools associated with it and may be conveyed to Binalyze via the internet from time to time.

 

• “Separately Licensed Third Party Software” has the meaning given to that term in Section “Separate Licenses”.

 

• “Separate Terms” has the meaning given to that term in Section “Separate Licenses”.

 

• “Subscription” means the Customer subscribing to the Binalyze Software as well as accompanying Support Services under a Quote.

 

• “Subscription Fees” means the remuneration for the Subscription as specified in the given Quote.

 

• “Support” or “Support Services” means the provision of support services for Binalyze Software as further described in Section “Support Services” and Annex B.

 

• “Term” means the period in time during which a Quote and the underlying General Terms and Services Terms are in effect, subject to the provisions under Section “Term and Termination”.

 

• “Territory” means those countries where the Binalyze Software is available for resale and/or supply as described here in the applicable Quote and/or an applicable Partner Addendum. Territory excludes any countries where either Party is prohibited from providing the Binalyze Software due to applicable Export Laws.

 

• “Updates” means patch releases, updates, upgrades, new versions of the Binalyze Software as released by Company after the Effective Date and during the Term from time.

 

• “Volume Fees” means the amounts payable for usage of the Binalyze Software for Excess Volume, as specified in the applicable Quote.

• Proprietary Rights

• Retention of Rights 

Save as expressly set out in this Agreement, neither Party shall receive any right, title or interest in or to any Intellectual Property Rights owned by the other Party (including any modifications or enhancements made thereto). All rights not expressly granted in this Agreement are reserved by the Parties or their respective licensors. For the avoidance of doubt, Binalyze (or its suppliers, where applicable) owns and shall remain to own any Intellectual Property Rights in the Binalyze Software and the Documentation and all modifications, enhancements, improvements, derivative works, Updates, and other alterations of either of the foregoing (even if paid for, or requested or directed, by Customer), and Customer (or the relevant Authorized Affiliate) owns any right, title or interest, including any Intellectual Property Rights in Customer Data and Customer Marks. 

• Feedback License

Customer grants, and ensures that every Authorized Affiliate and any End Customer grants, to Binalyze a worldwide, royalty-free, transferable, sublicensable, irrevocable, perpetual license to use and incorporate into the Binalyze Software and the Documentation, and otherwise to freely exploit without restriction, any recommendations, enhancements, requests, corrections, suggestions or other feedback provided by or on behalf of Customer or an Authorized Affiliate or End Customer relating to the functionality or operation of the Binalyze Software and the Documentation.

• Separate Licenses

Binalyze Software may contain third party technology (including open source software) listed in a URLwhich will be made available to Customer as part of Binalyze Software or during the provision of Updates (“Separately Licensed Third Party Software”) and which are governed by separate license terms (“Separate Terms”). Customer’s rights to use Separately Licensed Third Party Technology under the Separate Terms are not restricted in any way by this Agreement. Company will provide indemnification for third party technology that is part of Binalyze Software and not Separately Licensed Third Party Technology to the same extent as Company is required to provide indemnification for Binalyze Software under the terms of this Agreement. Company shall inform Customer of any notices and other instructions that are related to third party software components that are included in Binalyze Software and will provide such notices and instructions in at least one of the following ways (i) automatically installed with the programs or in the installation details, or (ii) in the program documentation or read me files. Customer shall comply with all instructions and notices related to third party software components and shall reproduce all third party notices in an appropriate location in the application package and include any source code (to the extent source code is provided by Company) as required by the applicable notices or as otherwise directed by Company.

 

• Use of Customer’s Name  

Customer agrees that the Company may use Customer’s name and may disclose that Customer is a customer of the Company in advertising, press, promotion and similar public disclosures upon the prior written consent of Customer (such consent not to be unreasonably withheld or delayed).  Customer also hereby grants the Company a non-exclusive license during the Term of this Agreement and Company shall list Customer’s name and display Customer Marks on its home page and in the “partner,” “customer” or similar sections of the Company’s website.  The Company may also publicly issue and distribute a “case study” relating to this Agreement and the Company’s services performed on behalf of Customer, provided that it first obtains Customer’s prior written consent, such consent not to be unreasonably withheld or delayed.  Customer agrees to act as a “reference account” with respect to the Company’s marketing and promotional initiatives.

 

• Trademarks

Company may use the then current Customer Marks, provided that Company shall: (i) only use Customer Marks in the form and manner, and in accordance with the quality standards, that Customer prescribes (and which it may change from time to time) and (ii) upon termination of this Agreement for any reason, immediately cease all use of the Customer Marks.  All goodwill associated with Customer Marks and Company’s use of such Customer Marks shall inure to the Customer.  Company will not use, register or attempt to register, or take other action with respect to any name, logo, trademark, service mark, or other identifier used anywhere in the world by Customer (or a mark confusingly similar thereto), except to the extent authorized in writing by Customer in advance. For the avoidance of doubt, nothing in this Agreement grants Company any Intellectual Property Rights belonging to Customer.

• Right to Use

• License Grant 

Subject to Customer’s material compliance with its obligations under this Agreement, specifically but not limited to with its on-time payment obligations, as well as with the Documentation, Company grants Customer, a limited, non-exclusive and (except as set forth in Sections “Use by Authorized Affiliates” and “Appointment of End Customer by Partner or Partner’s Reseller”) non-transferable, revocable right to download, install and use the Binalyze Software, solely within the Territory and solely for its own Contractual Use or, if agreed upon in the applicable Quote, for the provision of Customer’s Services. Binalyze Software may contain Separately Licensed Third Party Software which is licensed under Separate Terms. As far as the Separate Terms supersede this Agreement, such Separate Terms will govern Customer’s use of that Separately Licensed Third Party Software.

• IT Outsourcing Services Use

Customer may allow to install and use the Binalyze Software in the course of IT Outsourcing Services, provided that: (i) such installation and/or use must be solely for the benefit of Customer and not for the benefit of that supplier, service provider or Affiliate, (ii) the supplier’s, service provider’s or Affiliate’s installation and/or use must be limited solely to what is required to provide its IT Outsourcing Services to Customer and otherwise in accordance with the Agreement, and (iii) any such use must not be intended, in whole or in part, to circumvent any of the license restrictions in this Agreement or the applicable Quote.

• Use by Authorized Affiliates 

If an specific affiliate or – in case Customer is a public authority – a subordinated authority is designated in a given Quote ("Authorized Affiliate"), Customer may allow such Authorized Affiliate to install and use the Binalyze Software, provided that: (i) such right is limited to the Contractual Use specified in the Quote in which the Authorized Affiliate is mentioned, (ii) such use is limited to use by that Authorized Affiliate for that Authorized Affiliate’s own Contractual Use and (iii) Customer ensures that the Authorized Affiliate will abide by all provisions of the Agreement, specifically with all use restrictions and obligations applicable to Customer. Customer is permitted to sub-license the Binalyze Software only for the purpose provided for herein. In that case, Customer shall be fully liable for the fault of its Authorized Affiliate to the same extent as for its own fault and shall be jointly liable with such Authorized Affiliate towards Company.

• Appointment of End Customers by Partners 

Subject to a Partner Addendum, as the case may be,  and if an End Customer or a Partner’s Reseller is designated in a given Quote, Partner may allow such End Customer or Partner’s Reseller to access and use the Binalyze Software, provided that: (i) such right is limited to the Contractual Use specified in the Quote in which the End Customer or Partner’s Reseller is mentioned, and (ii) the End Customer and Partner’s Reseller will abide by all use restrictions and obligations applicable to Partner and outlined in the Partner Addendum.

• Responsibility

Customer shall ensure Customer’s IT Outsourcing Service providers, Authorized Affiliates, Partners’s Reseller and End Customers are bound by written agreements incorporating terms and conditions that are at least as protective and restrictive as those in this Agreement. Customer will (a) keep copies of all such agreements; (b) track and keep records of all (online) acceptances of such agreements; and (c) provide such copies and/or online acceptance details to Company on Company’s request without undue delay.  Customer will enforce each agreement with at least the same degree of diligence used by Customer to enforce similar agreements for its own services, but in no event less than a reasonable degree of diligence. Customer shall be responsible and liable for the acts, defaults, omissions, and negligence of any such parties as fully as if they were Customer’s own acts, defaults, omissions or negligence.

• Restrictions  

Neither Customer nor any Authorized Affiliate, any Partner’s Reseller, End Customer nor any person acting on their behalf may use, directly or indirectly, the Binalyze Software, the Documentation, materials or intellectual property provided or accessed under this Agreement in any manner or for any purpose other than as permitted by this Agreement. Without limiting the foregoing, the following actions are prohibited (including any attempt to do any of the following): (i) reverse engineering, disassembling, or decompiling the Binalyze Software, or parts thereof or any underlying code, methodology or intellectual property, or applying any other process or procedure to derive the code of any software included in the Binalyze Software, (ii) using the Binalyze Software in a way intended to avoid incurring any applicable fees or charges or purchasing additional licenses or access rights, (iii) sublicensing, marketing, selling, leasing, lending or otherwise distributing or transferring the Binalyze Software, the Documentation or the license keys to any third party (except as explicitly permitted under this Agreement), (iv) using the Binalyze Software in any manner except in accordance with the Documentation and the Agreement, (v) modifying, translating, localizing, or creating derivative works of the Binalyze Software and/or the Documentation, (vi) encumbering or suffering to exist any lien or security interest on the Binalyze Software and/or the Documentation, (vii) knowingly taking any action that would cause the Binalyze Software and/or the Documentation to be placed in the public domain, (viii) incorporating, embedding or bundle the Binalyze Software, in whole or in part, with or into another product or other computer software code or permitting Customers to use Binalyze Software other than for the Contractual Use, (ix) copying or reproducing Binalyze Software, in whole or in part, other than a reasonable number of back-up copies, (x) removing, altering, covering or obscuring any proprietary rights notice, copyright notice or any other notice or Company Mark that appears on or within Binalyze Software, (xi) disclosing results of any benchmark tests without Company’s prior written consent, and/or (xii) misappropriating the Binalyze Software, Documentation or other Binalyze intellectual property.

• Use of Binalyze Software Non-Production Versions

If Company provides any test or non-production licenses to the Binalyze Software for purposes of proof of concept and or evaluation under a given Quote or subsequently, its use is limited solely to such non-productive evaluation purposes within Customer’s own business environment and must not be used on production systems. Company shall not be liable for any damages arising out of or in connection with a use in productive systems.

• Technical Measures against Excessive Use

Company reserves the right (but is under no obligation) to restrict the use of Binalyze Software to Contractual Use by means of technical measures.

• Modification to the Software and Terms

• General Modification Right

Company may update the Binalyze Software at any time, provided the Updates do not result in a material reduction of the functionality, performance, availability, or security of the Services.

• Discontinuance Right

Subject to Section “Deprecation Announcement”, Company may terminate any of the Binalyze Software features or functionality for any reason at any time without liability to Customer.

• Deprecation Announcement

If Company intends to discontinue or make backwards incompatible changes to the Binalyze Software, it will notify Customer of such intention at least six (6) months in advance. Company will then use commercially reasonable efforts to continue to operate those affected versions, features or functionalities without the noted changes for at least six (6) months after that announcement, unless (as Company determines in its reasonable good faith judgment) (i) required by law or third-party relationship (including if there is a change in applicable law or relationship), or (ii) such continued operation could create a security risk or substantial economic or material technical burden.

• Modification of the Software

In order to maintain a progressive and modern product experience and/or in order to keep up with good industry standards regarding security, reliability or regulatory compliance, Company reserves the right to make reasonable changes to the Binalyze Software from time to time. Such changes may relate to any features or functionality of the Binalyze Software. If Company makes a material change to the Binalyze Software, it will inform Customer reasonably in advance, but no later than 30 days before such change becomes effective. This does not apply in cases where such changes are required in order to solve security issues or to address regulatory changes or changes of the law or where such changes are applicable to new or pre-general availability functionality.

• Modification to the Terms

Company may update the General and/or Service Terms, provided the Updates do not (a) result in a material degradation of the overall security of the Binalyze Software, (b) expand the scope of or remove any restrictions on Binalyze’s processing of Customer Data as described in the Data Processing Agreement, or (c) have a material adverse impact on Customer’s rights under the General and/or Service Terms. Company will notify Customer of any material updates to General and/or Service Terms.

• Delivery of Binalyze Software

• Availability of Binalyze Software

Company shall provide Customer with the Binalyze Software in digital and executable form together with the Documentation and a user manual (if applicable) on a suitable machine-readable storage medium or for download via a URL specified after conclusion of the Agreement, at its own discretion. Customer has no right to receive and Company will not hand over any code of the Binalyze Software to Customer.

• License Key

If the Binalyze Software is subject to license key protection, Company will periodically provide Customer with altering license keys that will be delivered electronically (e.g. by email) and need to be entered into the Binalyze Software in order to (re-)activate its functionality (“License Keys”). The period for the renewal of a License Key will be determined by Company in its sole discretion.

• Installation of Binalyze Software 

Unless customization and/or integration by Company is specifically agreed in a separate agreement, it is Customer’s responsibility to integrate the Contractual Software into the current IT systems and technical infrastructure of Customer.

• Technical Requirements 

Customer shall be responsible for meeting the technical requirements for the use of Binalyze Software. The technical requirements are specified in the Documentation made available to the Customer. Customer acknowledges that the system requirements only refer to the use of Binalyze Software itself. Customer shall be responsible to identify and implement any deviating or additional system requirements for the intended use case, including, but limited to, sufficient server resources, an adequate Internet connection.

• Customer Data

• General

As between the Parties, Customer or, as the case may be, an Authorized Affiliate, a Partner’s Reseller or an End Customer owns all right, title and interest in and to all (End) Customer Data and shall have sole responsibility for the legality, accuracy and maintenance of Customer Data. Without limiting the foregoing, Customer shall obtain and maintain all necessary licenses, consents and other permissions (including those required under applicable laws), to authorize the processing of Customer Data (including any content protected by Intellectual Property Rights) by Company and Company’s sub-processors in accordance with the terms of this Agreement. Customer hereby authorizes Company and Company’s sub-processors to use, copy and process Customer Data for the purpose of providing the Binalyze Software, Professional Services and performing its obligations under this Agreement. 

• Service Generated Data

Notwithstanding anything to the contrary, Binalyze may aggregate, collect and analyze Service Generated Data and will be free (during and after the term of the Agreement) to: (i) use the Service Generated Data to develop and improve the Binalyze Software, Professional Services and any other Binalyze offerings, and for other internal business purposes from time to time, and (ii) disclose the Service Generated Data solely in an anonymized format that does not identify Customer or any individual.

• Backups

Customer acknowledges that the Binalyze Software does not produce regular backups of Customer Data. Thus, Customer is solely responsible for regular and sufficient backups of all Customer Data on an environment other than the Binalyze Software.

• Pricing

• Subscription Fees

Customer shall pay the Subscription Fees in accordance with the relevant Quote and this Agreement within thirty (30) days from the receipt of the invoice (“Payment Due Date”). Unless otherwise defined in a given Quote, Company will invoice the Subscription Fees annually in advance upon the Effective Date of each Quote and every anniversary thereof. Any special requirements of Customer regarding the form or content of invoices (including any required supporting documentation), or the process for issuing invoices, must explicitly be stated in the applicable Quote. Customer is not entitled to withhold or delay payment of any invoice on the grounds that Company has failed to comply with a requirement not stated in the applicable Quote. 

• Tax

All Subscription Fees exclude taxes, including VAT, GST or IVA, and any withholding tax, except for Company’s income taxes. If any withholding or deduction is required under applicable laws, Customer shall, when making payment of the Subscription Fees to which the withholding or deduction relates, pay to Company such additional amount as will ensure that Company receives the same total amount of the Subscription Fees that it would have received if no such withholding or deduction had been required.

• Invoice Disputes

Customer may dispute invoiced Subscription Fees if Customer believes in good faith that Subscription Fees were inaccurately invoiced (“Invoice Dispute”). Invoice Disputes must be submitted to finance@binalyze.com and identify all disputed amounts and the reasons for dispute. Company will review in good faith all Invoice Disputes, and will provide Customer an explanation of Subscription Fees due following such review (“Invoice Dispute Report”). If an Invoice Dispute is submitted before the Payment Due Date, then notwithstanding Section “Subscription Fees”, Customer must only pay the amounts not subject to the Invoice Dispute. Unpaid Subscription Fees determined in a Invoice Dispute Report to be accurately invoiced are due within 30 days after delivery of such report. If an Invoice Dispute is submitted after the Payment Due Date and the Parties determine that Subscription Fees were incorrectly invoiced, then Company will issue a credit equal to the agreed amount.

• Late Payment

If Customer fails to pay an invoice in a timely manner, Company will give Customer written notice. If such notice has been provided and payment has not been made within 5 (five) days of the receipt of the notice by Customer, then Company may charge Customer an interest at the rate of 8 percentage points above the base rate of Barclays Bank PLC per year (or the highest rate permitted by law, whichever is lower). If Company initiates efforts to collect any payment due to it under any Quote, Customer shall be responsible for and pay all costs and expenses incurred by Company, including reasonable attorneys’ fees.

• Volume Fees 

Unless otherwise agreed in a Quote, if Customer exceeds the Contractual Use specified in the Quote, Company will charge Customer at the Volume Fee rate specified in the Quote for any use of Binalyze Software over the Contractual Use (“Excess Volume”). Volume Fees for Excess Volume will be reviewed and invoiced regularly in arrears. Unless agreed upon otherwise in a Quote, Excess Volume will be reviewed annually at the end of each Contract Year, and following such review, the amount of Excess Volume will be automatically added to the Contractual Use, and the Subscription Fee will be increased by an amount equal to the associated Volume Fees, for all future Contract Years unless Customer notifies Company in writing, prior to the end of the relevant Contract Year, that Customer expects its usage volume will decrease under the Contractual Use level going forward.  For clarity, Volume Fees are annual fees and will be prorated accordingly. In case the Parties have not agreed upon Volume Fees in the applicable Quote, Customer shall promptly execute a Quote covering the Excess Volume.

• Price Revisions

Customer agrees that Company may increase any Subscription Fees under each Quote annually by the rate of inflation as reflected by the Consumer Price Index for All Urban Consumers (CPI-U); U.S. City Average; All items, not seasonally adjusted, 1982–1984=100 reference base. Company will notify Customer about any increase with 90 days’ prior written notice.

• Travel and Expenses 

Any Subscription Fees exclude travel and accommodation expenses for any business travel agreed by the Parties. Customer shall reimburse Company for reasonable and evidenced travel and accommodation cost upon Customer’s prior approval.

• Suspension of Services and Termination for Non-Payment

Company may suspend the provision of any Services, or terminate the Agreement for Customer’s breach (either immediately or after a period of suspension) without any liability to Customer, if Customer has failed to pay any Fees and the following conditions are met: (i) Company has served upon Customer two notices, each of which specifies the undisputed invoiced amount that is then unpaid and states Company's intention to suspend the Services or to terminate the Agreement for non-payment, and gives Customer 30 days to pay, with the second notice served no earlier than 30 days after the date of the first, (ii) 30 days have elapsed since the date of the second notice and Customer has failed to pay in full the undisputed invoiced amount specified in that notice. 

• Purchase Orders

If Customer requires a purchase order number on its invoice, Customer will provide a purchase order number in the Quote. If Customer does not provide a purchase order number, then (i) Company will invoice Customer without a purchase order number, and (ii) Customer will pay invoices without a purchase order number referenced. Any terms on a purchase order are void.

 

• Information Requests and Audits

• Information Requests

No more than once per 6-month period, Company may request the Customer to provide information in written form about (i) the scope of use of Binalyze Software including the necessary details to assess the Contractual Use and (ii) any Binalyze Software sub- licenses granted by Customer pursuant to “Use by Authorized Affiliates” or “Appointment of End Customer by Partner” including the commercials of such sub-licenses. Customer shall provide Company with the information within fifteen (15) days of written notice. 

• Audit Right

Should the Customer delay or fail to comply with the information obligation pursuant to Section “Information Requests”, or in cases of incomplete information or where Company has a reason to believe that an audit is necessary to ensure compliance with this Agreement be the Customer, Company or an independent certified public accountant selected by Company may, at Company’s sole expense, and no later than upon a five (5) days’ advance written notice to Customer and during Customer’s normal business hours, inspect the records of Customer related to its activities set forth in Section “Information Requests”.  If, upon performing such audit, it is determined that Customer has underpaid the Company by an amount greater than five (5) percent of the payments due to Company in the period being audited, Customer will bear all reasonable expenses and costs of such audit in addition to its obligation to make full payment under the given Quote.  Company shall use commercially reasonable efforts to minimize any interference with Customer’s business while such audit is conducted.

• Support and Professional Services

• Support Services

Company shall provide Support Services during the Subscription of each given Quote in accordance with Annex B and covered by the Subscription Fees.

• Additional Professional Services 

Customer may purchase additional services or order deliverables from Binalyze by executing a separate Statement of Work referencing these General Terms. The fees per Person Day shall be determined in each applicable Statement of Work. 

• Data Protection

Customer will be installing and operating the Binalyze Software on its own premises and/or cloud platforms. Company will not have any access to such deployments of the Binalyze Software. Service Generated Data will not contain any personal data, but only data related to the use metrics of the Binalyze Software. Company does not require Customer to convey any personal data to Company under this Agreement and such data transmission is not required to operate and to benefit from the Binalyze Software. Whenever Customer opens support requests with Company in the course of the receipt of Support Services, Customer shall ensure that no Personal Data is transferred within such requests.  In the event that Customer nevertheless transfers Personal Data to Company, Company’s processing of Customer’s Personal Data shall be governed by Annex A.  Company will act as a Processor, and will act on Customer instructions concerning the treatment of Customer’s Personal Data.  Customer agrees to provide any notices and obtain any consents related to Customer’s use of the Binalyze Software and Company’s provision of the Services, including those related to the collection, use, processing, transfer and disclosure of Personal Data.

• Confidentiality

• Confidential Information

As Confidential Information qualifies: (i) the non-public code portions of the Binalyze Software and any accompanying Documentation; and (ii) any business, financial or technical information of either Party communicated to the other in connection with this Agreement, including but not limited to any information relating to such Party’s product plans, designs, costs, product prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how.

 

• Exceptions

Confidential Information shall not include information that:  (i) is in or enters the public domain without breach of this Agreement through no fault of the receiving party; (ii) the receiving party was demonstrably in possession of prior to first receiving it from the disclosing party; (iii) the receiving party can demonstrate by objective evidence was developed by the receiving party independently and without use of or reference to the disclosing party's Confidential Information; or (iv) the receiving party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.  

• Obligations

Each Party will maintain the Confidential Information of the other Party in strict confidence and will exercise due care with respect to the handling and protection of such Confidential Information, consistent with its own policies concerning protection of its own Confidential Information of like importance (but in no event less than reasonable care).  Each Party will use and disclose the Confidential Information of the other Party only as expressly permitted herein, and will disclose such Confidential Information only to its employees and consultants as is reasonably required in connection with the exercise of its rights and obligations under this Agreement.  However, each Party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the receiving party gives reasonable notice to the other party to afford such Party an opportunity to intervene and contest such order or requirement.  Any such disclosure by the receiving party of the Confidential Information of the disclosing party, will, in no way, be deemed to change, affect or diminish the confidential and proprietary status of such Confidential Information.  The obligations of the Parties set forth in the Section “Confidentiality” shall survive the termination or expiration of this Agreement.

 

• Destruction or Deletion

Within fourteen (14) days of a termination or expiration of this Agreement, each Party will destroy all Confidential Information (and all copies and extracts thereof) of the other in its control or possession. Customer will certify to the Company that all copies of Confidential Information of the Company have been returned to the Company or destroyed, and the Company will certify to Customer that all copies of any Confidential Information of Customer have been returned to Customer or destroyed. Notwithstanding the foregoing, the receiving party may retain copies of Confidential Information stored on backup disks or in backup storage facilities automatically produced in the ordinary course  of  business  which  are  not,  in  the  ordinary  course  of  business,  accessible  from employee workstations. Any such Confidential Information so retained will be held subject to the confidentiality and use limitations of this Agreement and will not be accessed by any person except information technology systems administrators (if technically required) nor used for any purpose except necessary data storage systems maintenance.

 

• Injunctive Relief

Each Party acknowledges that the unauthorized use or disclosure of the Confidential Information of the other Party would cause substantial harm to such other Party that could not be remedied by the payment of damages alone.  Accordingly, the non-breaching Party will be entitled to seek preliminary and permanent injunctive relief and other equitable relief for any breach of the Section “Confidentiality”.

• Representations and Warranties

Each Party represents and warrants that it has full power and authority to enter into the Agreement. Each Party warrants that it will comply with all laws and regulations applicable to its provision, receipt, or use, of the Binalyze Software, as applicable. Company warrants that it will use reasonable care and skill in complying with its obligations under the Agreement. 

• Indemnification

• Indemnification by Company

Subject to the provisions of the Section “Indemnification”, if a third party makes a claim against Customer alleging that Binalyze Software (except for Separately Licensed Third Party Software) when used in accordance with its Documentation and this Agreement infringes the Intellectual Property Rights of any third party arising under U.S. or E.U. law, Binalyze shall defend Customer against the claim and shall pay all damages awarded by a court of competent jurisdiction or agreed to in settlement of the claim.

• Indemnification by Customer

Subject to the provisions of the Section “Indemnification”, if a third-party makes a claim against Company alleging that (i) Customer Marks, or Customer Data infringes or misappropriates that third party’s Intellectual Property Rights; (ii) a use of the Binalyze Software by Customer not in line with the Agreement infringes or misappropriates the Intellectual Property Rights of a third party or violates applicable law; (iii) any of Customer’s acts or omissions whenever Customer acts as a Partner subject to the Partner Addendum infringing any rights of of a third party, such as but not limited to unlawful usage of data, deployment of Binalyze Software on such third party’s infrastructure or devices without consent or unlawful data acquisitions; (iv) a suspension of Services or termination of the Agreement by Company subject to Section “Suspension of Services and Termination for Non-Payment” led to losses or damages of such third party; or (iv) that Company shall provide any remedies or liabilities for potential warranty claims directly to such third party due to Customer’s non-compliance with its obligation to enter into a sufficient license agreement with such third party as set forth in Section “Responsibility” Customer shall defend Binalyze against the claim and shall pay all damages awarded by a court of competent jurisdiction or agreed to in settlement of the claim.

• Exclusions and Procedure

1. In the event that Binalyze Software is likely to, in Company’s sole opinion, become the subject of a claim described in Section “Indemnification by Company”, Company shall, in its sole discretion, either (i) modify or replace Binalyze Software without loss of significant functionality, or (ii) procure a license for Customer to continue using Binalyze Software as licensed herein. If Company determines that neither of the foregoing is commercially practicable, Company may terminate this Agreement and all licenses granted hereunder by written notice to the Customer, and Customer will cease all use of Binalyze Software.  Company will have no liability to Customer as a result of such termination, except to pay back Customer any unused licenses fees on a pro-rata-temporis basis.

 

1. Binalyze shall have no liability for any claim or demand arising from (i) an allegation that does not state with specificity that Binalyze Software is the basis of the claim; (ii) the use or combination of Binalyze Software or any part thereof with software, hardware, or other materials not developed by Binalyze where Binalyze Software or use thereof would not constitute infringement but for said combination; (iii) modification of Binalyze Software by a party other than Binalyze, where the use of unmodified Binalyze Software would not constitute infringement; (iv) any situation where Customer continues the allegedly infringing activity after being notified thereof and is provided with reasonably acceptable modifications, replacements or other remedies that would have avoided the alleged infringement (v) an allegation that the Binalyze Software consists of a function, system or method that utilizes functionality that is in general use in the industry; or (vi) an allegation made against Customer prior to the execution of this Agreement or any allegation based upon actions taken by Customer prior to the execution of this Agreement, or relating to any patent that Customer was aware of prior to the execution of this Agreement.  Customer shall bring to Binalyze’s attention any such prior or existing or known patent or other intellectual property claims, demands or allegations made on it that are material to the Section “Indemnification”, in writing, prior to the execution of this Agreement.

 

1. The obligations under the Section “Indemnification” and any other indemnification obligations set forth in this Agreement shall be subject to the following conditions: (i) the indemnified Party shall notify the indemnifying Party in writing within ten (10) days of learning of any claim for which indemnification is sought, provided however, that any failure to provide such notice shall relieve the indemnifying Party of its indemnification obligations hereunder only to the extent of any demonstrable prejudice suffered by the indemnifying Party as a result of such failure; (ii) the indemnifying Party shall have sole control of the defense or settlement of such claim, provided that the indemnified Party shall have the right to participate in such defense or settlement with counsel of its selection and at its sole expense and provided further that neither Party shall enter into any settlement of any claim without the other Party’s prior, written approval, which approval shall not be unreasonably withheld, conditioned or delayed; and (iii) the indemnified Party shall reasonably cooperate with the indemnifying Party in the defense and settlement of the claim, at the Indemnifying Party’s expense. 

 

1. Subject to Section “Limitation of Liability”, the Section “Indemnification” states the sole remedy of Customer and the entire liability of Binalyze with respect to any infringement of Intellectual Property Rights.

• Warranty Disclaimer

No conditions, warranties or other terms apply to the provision of the Binalyze Software unless expressly described in the Agreement. No implied conditions, warranties or other terms apply (including any implied terms as to satisfactory quality, fitness for purpose or conformance with description). Company does not warrant that (i) operation of the Services or Software will be error-free or uninterrupted, (ii) Binalyze Software will meet Customer’s business requirements; or (iii) all deficiencies in Binalyze Software can be found or corrected. In cases of functional defects of the Binalyze Software, Customer’s remedies are limited to the ones provided for in Annex B – Support Policy.

• Limitation of Liability  

• Limited Liability

1. Liability Exclusions. Subject to Section “Unlimited Liabilities”, neither Party will have any liability arising out of or relating to the Agreement for any: 

1. loss of profits;  
2. loss of anticipated savings; 
3. loss of business opportunity; 
4. loss of reputation or goodwill; or
5. indirect or consequential losses.

 

1. Subject to Sections “Liability Exclusions” and “Unlimited Liabilities”, each Party's total liability for all claims arising out of or relating to each Quote or otherwise under the Agreement in any Contract Year is limited to the greater of: the total Fees paid by Customer in the relevant Contract Year for the applicable Services (if any) .

•      Unlimited Liability

Nothing in the Agreement excludes or limits either Party’s liability for:

1. death or personal injury resulting from its negligence or the negligence of its employees or agents; 
2. its fraud or fraudulent misrepresentation;
3. its infringements of the obligations set forth in Section “Responsibilities”; 
4. its payment obligations under the Agreement; or
5. matters for which liability cannot be excluded or limited under applicable law.

• Limitation of Action

Except for actions for non-payment or breach of either Party's intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either Party more than one (1) year after the cause of action has accrued.

• Term and Termination

• Agreement Term

This Agreement commences on the Effective Date and continues in force and effect until all Quotes have been terminated or have expired, subject to the termination rights under the Agreement.

• Quote Term

Subject to earlier termination as provided herein, each Quote shall be in force for the Initial Term.  Unless agreed upon otherwise in an applicable Quote, thereafter each Quote shall automatically renew on an annual basis on each anniversary of its Effective Date for one year periods (“Renewal Term”), unless a Party hereto provides written notification of its termination to the other Party no later than 90 days immediately preceding the date on which the Quote would otherwise renew or unless earlier terminated as provided herein.  During the Initial Term and Renewal Term an Quote can only be terminated in accordance with Section “Termination”.

• Termination 

Either Party may terminate this Agreement or a Quote for cause immediately by written notice upon the occurrence of any of the following events:

1. if the other Party ceases to do business, or otherwise terminates its business operations;
2. if the other Party is adjudicated as bankrupt, or if a petition in bankruptcy is filed against the other party and such petition is not discharged within sixty (60) days of such filing; or
3. if the other Party breaches any material provision of this Agreement and fails to fully cure such breach within thirty (30) days of written notice describing

• Effect of Termination

Termination shall not relieve Customer of the obligation to pay any Subscription Fees accrued or payable to Company prior to the effective date of termination. Upon termination or expiration of this Agreement and/or a Quote, the rights and licenses granted to Customer hereunder shall automatically terminate and Customer shall immediately cease and, in case of use by Authorized Affiliates, Partner’s Reseller and/or End Customers, ensure that those immediately cease the use of the Binalyze Software.   

• Separation Damages  

Upon expiration of this Agreement or termination in accordance with the Section “Term and Termination”, Customer shall not be entitled to any separation compensation or damages of any kind, including indemnification, compensation, reimbursement, or damages for loss of prospective compensation, goodwill or loss thereof, or expenditures, investments, leases, or any type of commitment made in connection with the business of such party or in reliance on the existence of this Agreement including, but not limited to advertising and promotion costs, costs of supplies, termination of employees, employee salaries, and other such costs and expenses.

• Survival

Termination or expiration of this Agreement shall not relieve either party of any payment or other obligation under this Agreement which was to have been performed by such party prior to the termination.  All provisions of this Agreement which by their nature are intended to survive the termination or expiration of this Agreement including, without limitation, the provisions of an applicable Quote and Sections “Information Requests and Audits”, “Confidentiality”, “Proprietary Rights”, “Indemnification”, “Representations and Warranties”, “Warranty Disclaimer”, “Limitation of Liability”, “Effect of Termination”, “Separation Damages”, “Survival” and “General” will survive the termination of this Agreement.

• General

• Compliance with the Law 

Customer is responsible for compliance with legal obligations, especially any regulatory and security requirements. 

• Embargo & Export Restrictions

The Parties are mutually obliged to comply with all export control, embargo and sanctions laws and regulations that are applicable under Estonian, UK and/or European Union (EU) law and restrict, prohibit or prescribe a licensing requirement for the import, export, re-export or transfer of goods, software, technology or data and the provision of services, directly or indirectly, to certain countries, for certain End Customers or to certain End Customers; this shall also apply with respect to applicable United States (US) and other national law to the extent that Estonian or European legal provisions do not conflict therewith (“Applicable Foreign Trade Law”).

 

In the event that restrictions apply to the sale, supply, transfer, making available and/or export of the Binalyze Software or related services due to an embargo imposed by the EU, Estonia, the UK or the US, the legally binding conclusion of this contract is subject to the condition precedent that a prior authorization is granted by the competent authority or the competent authorities.

 

Customer confirms, represents, and warrants that Customer is not subject to any sanctions, in particular, that Customer is not included in any list of persons, entities or bodies (“PEB”) with which business is restricted or prohibited. Customer also confirms, represents, and warrants that Customer is neither directly nor indirectly majority-owned, held or controlled by any such PEB. Such lists of PEB include, but are not limited to, those issued by the EU or any of its Member States, the United Nations (UN) Security Council, and/or the US Government, whereas these confirmations shall extend to sanctions lists relating to economic sanctions measures taken by one or more states against another state and issued by any body other than the UN, the EU, UK or Estonia only if the UN, the EU, the UK or Estonia have also adopted – albeit not identical – economic sanctions measures against that state (“Applicable Sanctions List”). Customer will inform Company immediately if Customer itself or one of the PEB holding or controlling the Customer is included in an Applicable Sanctions List. 

 

Notwithstanding the foregoing confirmations, representations and warranties, Customer agrees to promptly provide, upon request, all information and documentation that will enable Company to conduct a comprehensive sanctions list screening of Customer, including information on Customer’s shareholders, beneficial owners and board of directors.

 

Customer must not resale, supply, transfer or otherwise make available directly or indirectly any Binalyze Software or services obtained from Company to or for the benefit of any PEB that is subject to sanctions under Applicable Foreign Trade Law or directly or indirectly majority-owned, held or controlled by a PEB that is subject to sanctions under Applicable Foreign Trade Law.

 

If the Binalyze Software obtained from Company are listed in lists of goods and technology, whose sale, supply, transfer, making available or export to a certain country or region is prohibited or subject to an authorization requirement under Applicable Foreign Trade Law (“Embargoed Country or Region”), Customer must not directly or indirectly (re-)sell, (re-)export or otherwise supply or transfer the goods obtained from Company to a PEB in the Embargoed Country or Region or for use in the Embargoed Country or Region, unless a (General) License has been granted by the competent authority. This applies in particular, but not exclusively, to the provision of the Binalyze Software to PEBs based in Russia, including subsidiaries or other group companies based in Russia, that are owned by, or solely or jointly controlled by, a PEB which is incorporated or constituted under the law of an EU Member State, a country member of the European Economic Area (EEA), Switzerland, the US or a partner country. 

A breach of this Section is a material breach of the Agreement. Customer further agrees to comply with all laws and regulations of all jurisdictions in Customer’s use of the Binalyze Software. 

• Governing Law

The Agreement and any dispute (contractual or non-contractual) concerning the Agreement, or its subject matter or formation are governed by English law. Any legal action or proceeding with respect to this Agreement will be brought in the courts of London, United Kingdom.  By execution and delivery of this Agreement, each of the Parties hereto accepts for itself and in respect of its property, generally and unconditionally, the exclusive jurisdiction of the aforesaid courts.

• Assignment

This Agreement shall inure to benefit and bind the Parties hereto, their successors and assigns, but neither Party may assign this Agreement without written consent of the other, except that Company may assign without consent to a related entity or the successor of all or substantially all of the assignor’s business or assets to which this Agreement relates.  There are no third-party beneficiaries to this Agreement. A person who is not a party to this Agreement has no rights under the Contract (Rights of Third Parties) Act 1999 to enforce any term of this Agreement but this does not affect any right or remedy of a third party that exists or is available apart from that Act.

• Notices 

Company will provide notices under the Agreement to Customer by sending an email to the email address provided by Customer in the Quote. Customer will provide notices under the Agreement to Company by sending an email to contact@binalyze.com. Notice will be treated as received when the email is sent. Customer is responsible for keeping its notification email address current throughout the Term. The Parties may use emails to satisfy written approval and consent requirements under the Agreement.

• Severability

If any provision of this Agreement is found by any court, tribunal or administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from this Agreement and will be ineffective without, as far as is possible, modifying any other section or part of this Agreement, and the legality and enforceability of the other provisions of this Agreement will not be affected.

• Waiver

No failure of either Party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights.  

• Subcontracting

Company may subcontract obligations under the Agreement but will remain liable to Customer for any subcontracted obligations.

• Independent Contractors  

The Parties to this Agreement are independent contractors.  There is no relationship of partnership, joint venture, employment, franchise, or agency between the Parties.  Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.

• Entire Agreement

The Agreement states all terms agreed between the Parties, and supersedes any prior or contemporaneous agreements between the Parties, relating to the subject matter of the Agreement. In entering into the Agreement, neither Party has relied on, and neither Party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly described in the Agreement.

• Headers

Headings and captions used in the Agreement are for reference purposes only and will not have any effect on the interpretation of the Agreement.

• Force Majeure  

Neither Party will be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, war, riot, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes, or fuel crises, pandemics provided that such party gives prompt written notice thereof to the other Party.