BinaDox, Inc. End User License Agreement

PLEASE READ THIS LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE ATTEMPTING TO INSTALL OR USE THE SOFTWARE OR THE SOFTWARE AS A SERVICE.  BY INSTALLING OR OTHERWISE USING THE SOFTWARE OR THE SOFTWARE AS A SERVICE, YOU, ON BEHALF OF YOURSELF AND YOUR EMPLOYER (collectively “YOU”), ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS.  IF YOU ARE ENABLING ANY OTHER PERSON TO BE AN AUTHORIZED USER OF A SEAT LICENSE OR THE SOFTWARE AS A SERVICE SUBSCRIPTION, YOU HEREBY AGREE TO BE RESPONSIBLE FOR ALL SUCH PERSON’S COMPLIANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND YOU WILL BE LIABLE FOR THER FAILURE TO COMPLY. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE SOFTWARE OR THE SOFTWARE AS A SERVICE, AS THE CASE MAY BE, AND DISCONTINUE THE INSTALLATION OR SUBSCRIPTION PROCESS.

Invoice Terms Legally Binding: The BinaDox invoice will specify the terms of Your license rights:

·       Evaluation License (Sec, 2), Registered License (Sec. 3), or Software As a Service (Sec. 4).

·       Duration or term.

·       Number of seats, authorized users, servers, and other details.

You agree to be bound to the terms of the BinaDox invoice, with full acceptance of the invoice upon Your payment.

Effective Date:   That date upon which the Software has first been downloaded and activated using the activation key, or cloud-based subscription service has been activated for You, as applicable.

1. DEFINITIONS

1.1. " BinaDox" means BinaDox, Inc., a Delaware corporation with its principal offices located at 3040 78th Ave SE Suite #282, Mercer Island, WA 98040, telephone (206) 420-6610. BinaDox's web address is www.BinaDox.com. BinaDox can also be contacted by e-mail at sales@BinaDox.com.  “BinaDox” is a trademark of BinaDox Technologies, Inc., and BinaDox hereby reserves all rights associated therewith.  

1.2. "Software" means BinaDox’s proprietary software provided to or made available for use by You by BinaDox either (a) in Java byte code or object code format only, and all associated files, including, without limitation, any Documentation, or (b) in Software As A Service, each in any and all versions which BinaDox in its sole option elects to provide to You, unless such subsequent version(s) are governed by a different license agreement.

1.3. "Documentation" means the written or on-line instructions, help information, and other written reference materials related to the Software, provided to You by BinaDox.

1.4. “Fee” means the license fee for one (1) seat license download for each database server, or the annual subscription fee for one (1) subscription seat license to use the Software As A Service, as the case may be, within the scope of the License as those terms are defined herein, on the terms and conditions as provided in this Agreement. Number of seat licenses and the corresponding Fees, or the annual subscription Fee, as the case may be, are reflected in BinaDox’s invoice. 

1.5. “Annual Support Fee” means the annual fee for support, as described in Section 11.

1.8. “Evaluation Version” means the Software, downloaded or Software As A Service, for which You have not paid the Fee, but have received permission form BinaDox to use the Software on a temporary basis for evaluation purposes, on the terms and conditions of Section 2 below.

1.9.  Software As A Service” or “SAAS” means a service offered by BinaDox or a third party by subscription through which the primary functionality of the Software may be accessed online.


2.  EVALUATION VERSION TERMS AND CONDITIONS

2.1. Acknowledgment.  The provisions of Articles 2, 4, 8, 9, 11, 12 and 13 and Sections 3.2, 3.3 of this Agreement apply to the Evaluation Version (the “Evaluation License Terms”).  You acknowledge and agree that if You have download or use the Evaluation Version, that the Evaluation Version is being supplied to You on a limited basis without charge in exchange for Your evaluation of the Software for subsequent license of Registered Software.  You further acknowledge and agree that if You subsequently purchase a seat license or subscription license to the Registered Software, any and all such copies of Registered Software downloaded, and the Software As A Service, will thereafter be subject to all of the terms and conditions of this Agreement except this Section 2, and You agree to be bound by and comply with such terms and conditions.

2.2. Grant of License for Evaluation Version.  BinaDox grants You a limited, royalty-free, nonexclusive, nonsublicensable and nontransferable license to use the Evaluation Version, subject to all terms and conditions of the Evaluation License Terms, for Your own internal evaluation purposes only, and not for any commercial purpose whatsoever.  The Evaluation Version is "NOT FOR PRODUCTION USE."  You may not demonstrate, test, examine, evaluate or otherwise use the Evaluation Version of the Software in a live operating environment or with data that has not been sufficiently backed up. 

2.3. Term of Evaluation Version License.  Your right to use the Evaluation Version of the Software shall be effective from either (a) the date You first download and install the Evaluation Version of the Software, or (b) You first use the Evaluation Software As A Service, for a period of thirty (30) days.  The Evaluation Version is time sensitive and will not function upon expiration of the 30-day period.  Notice of expiration will not actively be given, so You need to plan for the expiration date and make a copy of and remove Your important data before expiration.  If You desire to use the Software after Your evaluation is completed, You will need to pay the applicable Fee and acquire a validly licensed copy of Registered Software or Subscription to the Software As A Service.

2.4. Feedback.  You agree to use and evaluate the Evaluation Version of the Software, and to provide BinaDox at its request with feedback describing the results of Your use and evaluation of the Software, including any defects found in the Software and any information necessary for BinaDox to evaluate such defects.

2.5. No Obligation to Support Evaluation Version.  BinaDox has no obligation under this Agreement to correct any bugs, defects or errors in the Evaluation Version or to otherwise support or maintain Evaluation Version.

2.6. No Warranty.  You agree that the Software and the Software As A Service are provided "AS IS" and that BinaDox DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED TO THE EVALUATION VERSION, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS AGREEMENT.

3.  REGISTERED SOFTWARE – LICENSE GRANT

3.1. License Grant. Upon payment by You of the download license Fee (and, if You choose to opt for annual support, payment of the Support Fee), and subject to the terms and conditions set forth in this Agreement, BinaDox hereby grants You a limited, non-exclusive, non-transferable, non-sublicensable, revocable license (the “License”) to use the Software for one year or such other period specified in BinaDox’s invoice unless terminated in accordance with this Agreement. For downloaded Software, You may save and use one (1) copy of the Software on the hard disk of a single computer, which copy can be used only by one (1) individual; and (b) make one copy of the Software for archival purposes (does not apply to Software As A Service);

3.2. Limitations On License. Except as expressly authorized in Section 3.1, You and/or any person(s) acting with or for You may not:

(a) directly or indirectly sell, lease, rent, license, sublicense, redistribute, lend, give, transfer or otherwise distribute the Software; (b) modify, translate, or create derivative works from the Software, assign or otherwise transfer rights to the Software or use the Software for timesharing or service bureau purposes; (c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Software or any subsequent version thereof or any part thereof; (d) use copies of the Software to develop firewall or other security products to circumvent the single user intent of Section 3.1 and Section 4; or, (e) install and run the Software from a network server, or use the Software on different computers, unless You acquire a separate license for each separate computer on which the Software runs.  In the event that You are permitted by applicable law to reverse engineer any portion of the Software for the purpose of achieving interoperability with other software despite the foregoing restriction, You shall provide prior written notice to BinaDox of your intent to reverse engineer the Software and You shall provide BinaDox a reasonable opportunity to supply, in BinaDox’s discretion, such information with respect to the Software as may be required to achieve such interoperability.  In the event that BinaDox supplies such information, you shall not reverse engineer the Software.

BinaDox hereby retains any and all rights in the Software not granted pursuant to this Agreement.

3.3. Source Code. Nothing in this Agreement grants You and/or any person(s) acting with or for You any rights, license or interest with respect to the source code of the Software, and BinaDox retains all right, title and interest therein.

4. SOFTWARE AS A SERVICE

4.1 License Grant.  Upon the payment of the annual SAAS subscription Fee, and subject to the terms and conditions of this Agreement, BinaDox grants You the right to enable the authorized user(s) identified on BinaDox’s invoice (“Authorized User”) to access and use the SAAS in accordance with this Agreement. This SAAS license will commence on the first date You access the SAAS, and end on the first anniversary after, unless earlier terminated as provided herein or unless a different term is specified in BinaDox’s invoice. Your subscription will automatically renew for additional 1-year periods, unless either Party gives the other notice of non-renewal at least 30 days before the end of the then current term. BinaDox reserves the right to increase the annual subscription fee during any renewal term with notice to You; provided You shall have the right to terminate the affected service by written notice to BinaDox within 30 days following notice of fee increase.

4.2  Authorized Users. The Agreement does not include the right to enable any person or entity other than the Authorized User to access and use the Software. All references to obligations of You in this Agreement are also obligations of each Authorized User, and You are responsible for and guarantee the compliance with this Agreement of all Authorized Users. You shall be responsible for all account activity and the acts and omissions of its Authorized Users. Except when Your account number/password is obtained by a third party as a result of a breach of BinaDox’s or its hosting vendor’s physical or computer system security, You agree that You are solely responsible for maintaining the confidentiality of username, account number and passwords. You agree to immediately notify BinaDox of any unauthorized use of Your account of which You become aware.

4.3  Content and User Data. You agree to be solely responsible for all Your content and data or any other material (“Content”) that any user displays, uploads, exchanges, or transmits on, through or by Your account(s). BinaDox may analyze its customers’ use of the Software, and all analytical data generated by BinaDox from the Software shall be owned by BinaDox, provided always that such data is in aggregate form in a manner such that individual data or results cannot be ascertained.

4.4  Use of the Software. You may use the Software only as permitted under the terms and conditions of this Agreement. You alone may use the Software, and You are absolutely precluded from making the Software available to any other individual or to any entity. You will not resell, distribute, use on a timeshare or service bureau basis, or otherwise directly generate income from the Software. You will not modify, make derivative works of, disassemble, decompile or reverse engineer the Software or any component thereof (except to the extent expressly permitted by law). Because use of SAAS involves hardware, software, and Internet access, Your ability to use the Software may be affected by the performance of these elements. You acknowledge and agree that such system requirements, which may change from time to time, are Customer’s responsibility.

4.5  Retained Rights. BinaDox hereby retains any and all rights in the Software not granted pursuant to this Agreement.

5.   OWNERSHIP/PROPRIETARY RIGHTS

5.1. Ownership. Your rights in and to the Software are solely as set forth in Section 2 or Section 3 or Section 4, as applicable, and do not include any rights of ownership. You agree that the Software is licensed, not sold.  You agree that BinaDox owns and retains all right, title and interest (including, but not limited to, ideas, know-how, copyright, patent, trademark, trade secret and other intellectual property rights of any type or nature) to the Software, including any and all modifications, enhancements, derivative works and other alterations by any person or entity.  Without prejudice to the prohibition on modification set forth in Section 3.2(b) and Section 4.4, by executing this Agreement, You irrevocably assign to BinaDox, all rights, titles and interests You may claim in or to any modifications You develop or assist in developing, including all intellectual property rights.  You agree to execute such documents and take such actions as BinaDox may request to assist in effecting this assignment and/or to effectuate any such registration in any such modifications in the sole name of BinaDox.

5.2. Intellectual Property Rights.  The Software, the structure, organization and code embodied in the Software are the valuable and confidential trade secrets of BinaDox and are protected by intellectual property laws and treaties. You agree to take all reasonable measures to protect BinaDox's intellectual property rights and to abide by all applicable laws.

5.3. Copyright Notices. You agree not to remove, alter, or destroy any proprietary, trademark or copyright markings or notices placed upon or contained within the Software or any related materials.

5.4. Modifications. BinaDox reserves the right to modify or discontinue the Software at any time without prior notice to or consent by You.

6. PRICE AND PAYMENT

You agree to pay the license fee and Annual Support Fee, or the subscription Fee, as applicable.  BinaDox reserves the right to change its prices for future additional licenses of the Software at any time or from time to time as solely determined by BinaDox. All Fees, including annual subscription Fee for SAAS are non-cancellable and non-refundable, except in the case of Your termination for material breach by BinaDox in which case a pro-rated portion of any pre-paid fees shall be refunded.

6. REPRESENTATIONS AND WARRANTY

6.1. You represent and warrant that (i) You have the right to enter into this Agreement, (ii) Your use of the Software will not violate any applicable local, state, national or international law, and (iii) You shall only represent to third parties such information and material about the Software as BinaDox states in its published product descriptions, advertising and promotional materials or as may be stated in other non-confidential written material generally furnished by BinaDox, as modified from time to time.

6.2. If You have paid the Fee for a Registered copy of the Software, then for a period of thirty (30) days from the date of registration of the Software, BinaDox warrants the Software against any defects resulting from the electronic transmission process, and any Software media supplied by BinaDox will be free from defects in materials and workmanship.

8. DISCLAIMER OF WARRANTIES

8.1. BinaDox's entire liability and Your exclusive remedy shall be, at BinaDox's option, either (i) return of the Software and refund of the price paid, or (ii) repair or replacement of the Software that does not meet BinaDox's limited warranty. This limited warranty is void if failure of the Software has resulted from accident, abuse, or misapplication.  Any replacement Software will be warranted for an additional thirty (30) days. Outside the United States, neither these remedies nor any product support services offered by BinaDox are available without proof of license from an authorized source.

8.2. EXCEPT FOR THE FOREGOING, THE SOFTWARE IS PROVIDED AS IS AND BINADOX MAKES NO REPRESENTATIONS OR WARRANTIES (WRITTEN OR ORAL). TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BINADOX, AND ITS SUPPLIERS AND RESELLERS, DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER AND TO ANY PERSON OR ENTITY, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE IN TRADE. NO WARRANTY IS MADE THAT ANY ERRORS OR DEFECTS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS.

8.3. BinaDox reserves the right at any time to cease the support of the Software and to alter prices, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics of the Software.

9. LIMITATION OF LIABILITY

9.1. IN NO EVENT SHALL BINADOX OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, OR SUPPLIERS BE LIABLE FOR BREACH OR ANY OTHER CLAIM, ARISING UNDER, OR RELATED TO THIS AGREEMENT OR THE SOFTWARE OR SERVICE PROVIDED HEREUNDER, UNDER ANY THEORY, FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SIMILAR DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR DATA, OR ANY OTHER LOSS) WHETHER FORESEEABLE OR NOT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLEGENCE), STRICT LIABILITY OR OTHERWISE.

9.2. IN ANY CASE, BINADOX'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO AMOUNT ACTUALLY PAID BY YOU FOR THE SOFTWARE.

10. PROTECTION FROM UNAUTHORIZED USE

IN ORDER TO PROTECT THE SOFTWARE FROM UNAUTHORIZED USE, THE SOFTWARE CONTAINS A TRANSPARENT VALIDATION PROCEDURE.  IF THE SOFTWARE DETECTS ANY VIOLATION OF THE TERMS OF THIS AGREEMENT, YOU MAY BE UNABLE TO USE THE SOFTWARE AND/OR CREATE UNRESTRICTED SECURITY PRODUCTS UNTIL THE PROBLEM IS CORRECTED.  IF THIS OCCURS, YOU SHOULD IMMEDIATELY CONTACT BINADOX.

11. SUPPORT

For downloaded Software only, if You choose to pay the Annual Support Fee, BinaDox will provide technical support and updates for a period of one (1) year, as follows: (i) unlimited email support for “bug” fixes and other similar problem and error corrections, resolutions and/or work arounds for the Software, and (ii) You will be entitled to receive any upgrades, modifications or other enhancements (other than major enhancements that would reasonably qualify as a new version of the Software) to the version of the Software covered by this Agreement that BinaDox, in its sole discretion, may choose to provide at any time. Upgrades do not include newly released versions of the Software (e.g. from Version 2.0 to Version 3.0).

12. TERMINATION

12.1. This Agreement (and the License granted herein to You) will terminate immediately if You provide any false information to BinaDox or if You fail to materially comply with the terms and conditions of this Agreement. You may terminate this Agreement at any time by notifying BinaDox. Upon the termination of this Agreement by either party for any reason, You must discontinue use of the Software and delete all copies of the Software from Your computer and archives, and must return or destroy any Documentation in Your possession.

12.2. YOU AGREE THAT UPON TERMINATION OR YOUR BREACH OF THIS AGREEMENT FOR ANY REASON, BINADOX MAY TAKE ACTIONS SO THAT THE SOFTWARE NO LONGER OPERATES OR IS UNABLE TO PRODUCE UNRESTRICTED SECURITY PRODUCTS, WITHOUT PREJUDICE TO OTHER REMEDIES AVAILABLE.

12.3. Survival of certain terms: The following Articles shall survive any expiration or termination: 1-DEFINITIONS, 4-OWNERSHIP/PROPRIETARY RIGHTS, 8-LIMITATION OF LIABILITY, 11-TERMINATION, and 13-MISCELLANEOUS PROVISIONS and any obligations arising prior to the effective date of termination shall survive.

13. MARKETING

You agree to be identified as a customer of BinaDox and You agree that BinaDox may refer to You by name, trade name and trademark, if applicable, and may briefly describe Your business in BinaDox 's marketing materials and web site. You grant BinaDox a license to use Your name and any of Your tradenames and trademarks solely in connection with the rights granted to BinaDox pursuant to this paragraph.

14. MISCELLANEOUS PROVISIONS

14.1. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of Washington, irrespective of its choice of law principles.  The parties agree to submit to the exclusive jurisdiction of the Washington state courts in and for King County or the United States District Court for the Washington Western District of Washington.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

14.2. Assignability. This Agreement is personal to You and shall not be assignable by You, by operation of law or otherwise, without the prior written consent of BinaDox (at BinaDox’s sole discretion).  BinaDox may assign or transfer this Agreement or any of its rights or obligations hereunder at any time. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties, their respective successors and permitted assigns.

14.3. Confidential Information. You agree that the Software and any information concerning the Software, including its nature and existence, and any other information disclosed by BinaDox to You, will be considered and referred to collectively in this Agreement as "Confidential Information."

Confidential Information, however, does not include information that: (i) is now or subsequently becomes generally available to the public through no action of Yours; (ii) You can demonstrate to have had rightfully in Your possession prior to disclosure to You by BinaDox; (iii) is independently developed by You without the use of any Confidential Information; or (iv) You rightfully obtain from a third party who has the right to transfer or disclose it.

You agree not to disclose, publish, or disseminate Confidential Information to anyone other than Your employees and contractors or other third parties providing services to You who agree to use the Software solely for your benefit and be bound by the terms of this Agreement.  All Confidential Information remains the sole property of BinaDox.  You agree to take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of Confidential Information without the prior written approval of BinaDox in each instance.  You have no implied licenses or other rights in the Confidential Information not specifically granted in this Agreement.

When requesting and receiving technical support, You will not provide BinaDox with any information that is confidential to You or any third party. 

14.4.  Subcontractors and Vendors. You agree that BinaDox has and/or may sublicense or delegate its performance obligations to one or more third party vendors, such as cloud hosting service providers, and that You agrees that BinaDox may provide Your data and information to such third parties for such purposes. In connection with ordinary functioning of the Software, BinaDox and its third party vendors or subcontractors may gain access or possession of information about You or third parties. You represent, warrant and covenant that (a) You have the authority to deploy the Software in connection with all computer equipment or networks as You intend, (b) You have secured all approvals, consents, rights and authority from anyone who owns, controls or uses such computer equipment or networks to deploy the Software and to provide information to BinaDox, or allow BinaDox to collect information, relating to any use of the computer equipment or networks, which may include personally identifiable information.  You agree on behalf of Yourself and all such third parties who own, control or use such equipment or networks that all personal information shall be subject to BinaDox’s Privay Policy posted at www.binadox.com. You agrees to indemnify, defend and hold harmless BinaDox against any and all claims by any third party (including Your employees or others who own, control or use computer equipment or networks on which You deploy the Software) arising from or relating to Your deployment or use of the Software, including any claims of privacy violations.

14.5   Other Provisions. This Agreement constitutes the entire understanding and agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous purchase orders, agreements, representations and understandings between the parties regarding the subject matter hereof, and any pre-printed terms and conditions contained in Your company’s purchase order are null and void. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived, only by a writing signed by the party to be bound.  If any provision of this Agreement is found to be invalid or unenforceable, such provision shall be severed from the Agreement and the remainder of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties hereto. All headings herein are not to be considered in the construction or interpretation of any provision of this Agreement. BinaDox and You are independent contractors. Failure of either BinaDox or You to insist on performance of any term or condition of this Agreement or to exercise any right or privilege thereunder shall not be construed as a continuing or future waiver of such term, condition, right or privilege.

14.5. Export Controls: You agree to comply with all applicable U.S. export control laws and regulations, including without limitation, the laws and
regulations administered by the United States Department of Commerce and the United States Department of State.