End User License Agreement
PLEASE NOTE THAT THE TERMS OF THIS END USER LICENSE AGREEMENT SHALL GOVERN YOUR USE OF THE SOFTWARE, REGARDLESS OF ANY TERMS THAT MAY APPEAR DURING THE INSTALLATION OF THE SOFTWARE.
IMPORTANT-READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE TO THE VENDOR FROM WHICH YOU ACQUIRED IT WITHIN THIRTY (30) DAYS AND REQUEST A REFUND OF THE LICENSE FEE IF ANY, THAT YOU PAID FOR THE SOFTWARE.
EVALUATION LICENSE. If You are licensing the Software for evaluation purposes, Your use of the Software is only permitted in a non-production environment and for the period limited by the License Key. Notwithstanding any other provision in this EULA, an Evaluation License of the Software is provided “AS-IS” without indemnification, support, or warranty of any kind expressed or implied.
1.1. “Affiliate” means, with respect to a party at a given time, an entity that then is directly or indirectly controlled by, is under common control with, or controls that party, and here “control” means an ownership, voting, or similar interest representing fifty percent (50%) or more of the total interests then outstanding of that entity.
1.2. “Documentation” means that documentation that is generally provided to You by Binalyze with the Software, as revised by Binalyze from time to time, and which may include end-user manuals, operation instructions, installation guides, release notes, and online help files regarding the use of the Software.
1.3. “Guest Operating Systems” means instances of third-party operating systems licensed by You, installed in a Virtual Machine, and run using the Software.
1.4. “Intellectual Property Rights” means all worldwide intellectual property rights, including without limitation, copyrights, trademarks, service marks, trade secrets, know-how, inventions, patents, patent applications, moral rights, and all other proprietary rights, whether registered or unregistered.
1.5. “License” means a license granted under Section 2.1 (General License Grant).
1.6. “License Key” means a serial number that enables You to activate and use the Software.
1.7. “License Term” means the duration of a License as specified in the Order.
1.8. “License Type” means the type of License applicable to the Software, as more fully described in the Order.
1.9. “Open Source Software” or “OSS” means software components embedded in the Software and provided under separate license terms.
1.10. “Order” means a purchase order, enterprise license agreement, or other ordering document issued by You to Binalyzeor a Binalyze authorized reseller that references and incorporates this EULA and is accepted by Binalyze as set forth in Section 4 (Order).
1.11. “Product Guide” means the current version of the Binalyze Product Guide at the time of Your Order, copies of which are found at www.binalyze.com/download/eula.
1.12. “Support Services Terms” means Binalyze’s then-current support policies, copies of which are posted at www.binalyze.com/support/policies.
1.13. “Software” means the Binalyze tools and the Binalyze computer programs listed on Binalyze’s commercial price list to which You acquire a license under an Order, together with any software code relating to the foregoing that is provided to You pursuant to a support and subscription service contract and that is not subject to a separate license agreement.
1.14. “Territory” means the country or countries in which You have been invoiced; provided, however, that if You have been invoiced within any of the European Economic Area member states, You may deploy the corresponding Software throughout the European Economic Area.
1.15. “Third Party Agent” means a third party delivering information technology services to You pursuant to a written contract with You.
1.16. “Virtual Machine” means a software container that can run its own operating system and execute applications like a physical machine.
1.17. “Binalyze” means Binalyze OÜ, a company organized and existing under the laws of Estonia.
2.0 License Grant
2.1. General License Grant. Binalyze grants to You a non-exclusive, non-transferable (except as set forth in Section 12.1 (Transfers; Assignment)) license to use the Software and the Documentation during the period of the license and within the Territory, solely for Your internal business operations, and subject to the provisions of the Product Guide. Unless otherwise indicated in the Order, licenses granted to You will be for 12 months, will be for use of object code only, and will commence on either delivery of the physical media or the date You are notified of availability for electronic download.
2.2. Third Party Agents. Under the License granted to You in Section 2.1 (General License Grant) above, You may permit Your Third Party Agents to access, use and/or operate the Software on Your behalf for the sole purpose of delivering services to You, provided that You will be fully responsible for Your Third-Party Agents’ compliance with terms and conditions of this EULA and any breach of this EULA by a Third Party Agent shall be deemed to be a breach by You.
2.3. Copying Permitted. You may copy the Software and Documentation as necessary to install and run the quantity of copies licensed, but otherwise for archival purposes only.
2.4. Benchmarking. You may use the Software to conduct internal performance testing and benchmarking studies. You may only publish or otherwise distribute the results of such studies to third parties only if Binlayze has reviewed and approved the methodology, assumptions, and other parameters of the study (please contact Binlayze at email@example.com to request such review and approval) prior to such publication and distribution.
2.5. Binalyze Products. You may distribute the Binalyze products to third parties solely when installed in a Guest Operating System within a Virtual Machine. You are liable for compliance by those third parties with the terms and conditions of this EULA.
2.6. Open Source Software. Notwithstanding anything herein to the contrary, Open Source Software is licensed to You under such OSS’s own applicable license terms, which can be found in our product Documentation or as applicable, the corresponding source files for the Software. These OSS license terms are consistent with the license granted in Section 2 (License Grant) and may contain additional rights benefiting You. The OSS license terms shall take precedence over this EULA to the extent that this EULA imposes greater restrictions on You than the applicable OSS license terms.
3.0 Restrictions, Ownership
3.1. License Restrictions. Without Binalyze’s prior written consent, You must not, and must not allow any third party to:
(a) use Software in an application services provider, service bureau, or similar capacity for third parties, except that You may use the Software to deliver hosted services to Your Affiliates;
(b) disclose to any third party the results of any benchmarking testing or comparative or competitive analyses of Binalyze’s Software done by or on behalf of You, except as specified in Section 2.4 (Benchmarking);
(c) make available Software in any form to anyone other than Your employees or contractors reasonably acceptable to Binalyze and require access to use Software on behalf of You in a matter permitted by this EULA, except as specified in Section 2.2 (Third Party Agents);
(d) transfer or sublicense Software or Documentation to an Affiliate or any third party, except as expressly permitted in Section 12.1 (Transfers; Assignment);
(e) use Software in conflict with the terms and restrictions of the Software’s licensing model and other requirements specified in Product Guide and/or Binalyze quote;
(f) except to the extent permitted by applicable mandatory law, modify, translate, enhance, or create derivative works from the Software, or reverse engineer, decompile, or otherwise attempt to derive source code from the Software, except as specified in Section 3.2 (Decompilation);
(g) remove any copyright or other proprietary notices on or in any copies of Software; or
(h) violate or circumvent any technological restrictions within the Software or specified in this EULA, such as via software or services.
3.2. Decompilation. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of the Territory give You the express right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, You must first request such information from Binalyze, provide all reasonably requested information to allow Binalyze to assess Your claim, and Binalyze may, in its discretion, either provide such interoperability information to You, impose reasonable conditions, including a reasonable fee, on such use of the Software, or offer to provide alternatives to ensure that Binalyze’s proprietary rights in the Software are protected and to reduce any adverse impact on Binalyze’s proprietary rights.
3.3. Ownership. The Software and Documentation, all copies and portions thereof, and all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein, are and shall remain the sole and exclusive property of Binalyze and its licensors. Your rights to use the Software and Documentation shall be limited to those expressly granted in this EULA and any applicable Order. No other rights with respect to the Software or any related Intellectual Property Rights are implied. You are not authorized to use (and shall not permit any third party to use) the Software, Documentation, or any portion thereof except as expressly authorized by this EULA or the applicable Order. Binalyze reserves all rights not expressly granted to You. Binalyze does not transfer any ownership rights in any Software.
3.4. Guest Operating Systems. Certain Software allows Guest Operating Systems and application programs to run on a computer system. You acknowledge that You are responsible for obtaining and complying with any licenses necessary to operate any such third-party software.
4.1. Your Order is subject to this EULA. No Orders are binding on Binalyze until accepted by Binalyze. Orders for Software are deemed to be accepted upon Binalyze’s delivery of the Software included in such Order. Orders issued to Binalyze do not have to be signed to be valid and enforceable.
5.0 Records and Audit
5.1. During the License Term for Software and for two (2) years after its expiration or termination, You will maintain accurate records of Your use of the Software sufficient to show compliance with the terms of this EULA. During this period, Binalyze will have the right to audit Your use of the Software to confirm compliance with the terms of this EULA. That audit is subject to reasonable notice by Binalyze and will not unreasonably interfere with Your business activities. Binalyze may conduct no more than one (1) audit in any twelve (12) month period, and only during normal business hours. You will reasonably cooperate with Binalyze and any third-party auditor and will, without prejudice to other rights of Binalyze, address any non-compliance identified by the audit by promptly paying additional fees. You will promptly reimburse Binalyze for all reasonable costs of the audit if the audit reveals either underpayment of more than five (5%) percent of the Software fees payable by You for the period audited, or that You have materially failed to maintain accurate records of Software use.
6.0 Support and Subscription Services
6.1. Except as expressly specified in the Product Guide, Binalyze does not provide any support or subscription services for the Software under this EULA. You have no rights to any updates, upgrades or extensions, or enhancements to the Software developed by Binalyze unless you separately purchase Binalyze support or subscription services. These support or subscription services are subject to the Support Services Terms.
7.1. Software Warranty, Duration, and Remedy. Binalyze warrants to You that the Software will, for a period of one (1) year following notice of availability for electronic download or delivery (“Warranty Period”), substantially conform to the applicable Documentation, provided that the Software:
(a) has been properly installed and used at all times in accordance with the applicable Documentation; and
(b) has not been modified or added to by persons other than Binalyze or its authorized representative.
Binalyze will, at its own expense and as its sole obligation and Your exclusive remedy for any breach of this warranty, either replace that Software or correct any reproducible error in that Software reported to Binalyze by You in writing during the Warranty Period. If Binalyze determines that it is unable to correct the error or replace the Software, Binalyze will refund to You the amount paid by You for that Software, in which case the License for that Software will terminate.
7.2. Software Disclaimer of Warranty. OTHER THAN THE WARRANTY ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BINALYZE AND ITS SUPPLIERS MAKE NO OTHER EXPRESS WARRANTIES UNDER THIS EULA, AND DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING OR PERFORMANCE, OR USAGE OF TRADE. BINALYZE AND ITS LICENSORS DO NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR THAT IT WILL BE FREE FROM DEFECTS OR THAT IT WILL MEET YOUR REQUIREMENTS.
8.0 Intellectual Property Indemnification
8.1. Defense and Indemnification. Subject to the remainder of this Section 8 (Intellectual Property Indemnification), Binalyze shall defend You against any third party claim that the Software infringes any patent, trademark, or copyright of such third party, or misappropriates a trade secret (but only to the extent that the misappropriation is not a result of Your actions) under the laws of:
(a) the United States and Canada;
(b) the European Economic Area;
(c) the United Kingdom
(e) New Zealand;
(f) Japan; or
(g) the People’s Republic of China,
to the extent that such countries are part of the Territory for the License (“Infringement Claim”) and indemnify You from the resulting costs and damages finally awarded against You to such third party by a court of competent jurisdiction or agreed to in the settlement. The foregoing obligations are applicable only if You:
(i) promptly notify Binlayze in writing of the Infringement Claim;
(ii) allow Binalyze sole control over the defense for the claim, any settlement negotiations, and any related action challenging the validity of the allegedly infringed patent, trademark, or copyright; and
(iii) reasonably cooperate in response to Binalyze requests for assistance. You may not settle or compromise any Infringement Claim without the prior written consent of Binalyze.
8.2. Remedies. If the alleged infringing Software becomes, or in Binalyze’s opinion be likely to become, the subject of an Infringement Claim, Binalyze will, at Binalyze’s option and expense, do one of the following:
(a) procure the rights necessary for You to make continued use of the affected Software;
(b) replace or modify the affected Software to make it non-infringing; or
(c) terminate the License to the affected Software and discontinue the related support services, and, upon Your certified deletion of the affected Software, refund:
(i) the fees paid by You for the License to the affected Software, less straight-line depreciation over a three (3) year useful life beginning on the date such Software was delivered; and
(ii) any pre-paid service fee attributable to related support services to be delivered after the date such service is stopped. Nothing in this Section 8.2 (Remedies) shall limit Binalyze’s obligation under Section 8.1 (Defense and Indemnification) to defend and indemnify You, provided that You replace the allegedly infringing Software upon Binalyze’s making alternate Software available to You and/or You discontinue using the allegedly infringing Software upon receiving Binalyze’s notice terminating the affected License.
8.3. Exclusions. Notwithstanding the foregoing, Binalyze will have no obligation under this Section 8 (Intellectual Property Indemnification) or otherwise with respect to any claim based on:
(a) a combination of Software with non-Binalyze products (other than non-Binalyze products that are listed on the Order and used in an unmodified form);
(b) use for a purpose or in a manner for which the Software was not designed; 4 of 5
(c) use of any older version of the Software when the use of a newer Binalyze version would have avoided the infringement;
(d) any modification to the Software made without Binalyze’s express written approval;
(e) any claim that relates to open source software or freeware technology or any derivatives or other adaptations thereof that is not embedded by Binalyze into Software listed on Binalyze’s commercial price list; or
(f) any Software provided on a no-charge, beta, or evaluation basis. THIS SECTION 8 (INTELLECTUAL PROPERTY INDEMNIFICATION) STATES YOUR SOLE AND EXCLUSIVE REMEDY AND BINALYZE’S ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS OR ACTIONS.
9.0 Limitation of Liability
9.1 Limitation of Liability. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL BINALYZE AND ITS LICENSORS BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO YOU. BINALYZE’S AND ITS LICENSORS’ LIABILITY UNDER THIS EULA WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE GREATER OF THE LICENSE FEES YOU PAID FOR THE SOFTWARE GIVING RISE TO THE CLAIM OR $5000. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER BINALYZE OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
9.2. Further Limitations. Binalyze’s licensors shall have no liability of any kind under this EULA and Binalyze’s liability with respect to any third party software embedded in the Software shall be subject to Section 9.1 (Limitation of Liability). You may not bring a claim under this EULA more than eighteen (18) months after the cause of action arises.
10.1. EULA Term. The term of this EULA begins on the notice of availability for electronic download or delivery of the Software and continues until this EULA is terminated in accordance with this Section 10.
10.2. Termination for Breach. Binalyze may terminate this EULA effective immediately upon written notice to You if:
(a) You fail to pay any portion of the fees under an applicable Order within ten (10) days after receiving written notice from Binalyze that payment is past due; or
(b) You breach any other provision of this EULA and fail to cure within thirty (30) days after receipt of Binalyze’s written notice thereof.
10.3. Termination for Insolvency. Binalyze may terminate this EULA effective immediately upon written notice to You if You:
(a) terminate or suspend your business;
(b) become insolvent, admit in writing Your inability to pay Your debts as they mature, make an assignment for the benefit of creditors; or become subject to the control of a trustee, receiver, or similar authority; or
(c) become subject to any bankruptcy or insolvency proceeding.
10.4. Effect of Termination. Upon Binalyze’s termination of this EULA:
(a) all Licensed rights to all Software granted to You under this EULA will immediately cease; and
(b) You must cease all use of all Software, and return or certify destruction of all Software and License Keys (including copies) to Binalyze, and return, or if requested by Binalyze, destroy, any related Binalyze Confidential Information in Your possession or control and certify in writing to Binalyze that You have fully complied with these requirements. Any provision will survive any termination or expiration if by its nature and context it is intended to survive, including Sections 1 (Definitions), 2.6 (Open Source Software), 3 (Restrictions; Ownership), 5 (Records and Audit), 7.2 (Software Disclaimer of Warranty), 9 (Limitation of Liability), 10 (Termination), 11 (Confidential Information) and 12 (General).
11.0 Confidential Information
11.1. Definition. “Confidential Information” means information or materials provided by one party (“Discloser”) to the other party (“Recipient”) which are in tangible form and labeled “confidential” or the like, or, information which a reasonable person knew or should have known to be confidential. The following information shall be considered Confidential Information whether or not marked or identified as such:
(a) License Keys;
(b) information regarding Binalyze’s pricing, product roadmaps or strategic marketing plans; and
(c) non-public materials relating to the Software.
11.2. Protection. Recipient may use Confidential Information of Discloser;
(a) to exercise its rights and perform its obligations under this EULA; or
(b) in connection with the parties’ ongoing business relationship. Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by this EULA and will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of this EULA and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature but with no less than reasonable care.
11.3. Exceptions. Recipient’s obligations under Section 11.2 (Protection) with respect to any Confidential Information will terminate if Recipient can show by written records that such information:
(a) was already known to Recipient at the time of disclosure by Discloser;
(b) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions;
(c) is, or through no fault of Recipient has become, generally available to the public; or
(d) was independently developed by Recipient without access to, or use of, Discloser’s Information. In addition, Recipient will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court of a similar judicial or administrative body, provided that Recipient notifies Discloser of such required disclosure promptly and in writing and cooperates with Discloser, at Discloser’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
11.4. Data Privacy. You agree that Binalyze may process technical and related information about Your use of the Software which may include internet protocol address, hardware identification, operating system, application software, peripheral hardware, and non-personally identifiable Software usage statistics to facilitate the provisioning of updates, support, invoicing or online services and may transfer such information to other companies in the Binalyze worldwide group of companies from time to time. To the extent that this information constitutes personal data, Binalyze shall be the controller of such personal data. To the extent that it acts as a controller, each party shall comply at all times with its obligations under applicable data protection legislation.
12.1. Transfers; Assignment. Except to the extent, the transfer may not legally be restricted or as permitted by Binalyze’s transfer and assignment policies, You will not assign this EULA, any Order, or any right or obligation herein or delegate any performance without Binalyze’s prior written consent, which consent will not be unreasonably withheld. Any other attempted assignment or transfer by You will be void. Binalyze may use its Affiliates or other sufficiently qualified subcontractors to provide services to You, provided that Binalyze remains responsible to You for the performance of the services.
12.2. Notices. Any notice delivered by Binalyze to You under this EULA will be delivered via mail, email or fax.
12.3. Waiver. Failure to enforce a provision of this EULA will not constitute a waiver.
12.4. Severability. If any part of this EULA is held unenforceable, the validity of all remaining parts will not be affected.
12.5. Compliance with Laws; Export Control; Government Regulations. Each party shall comply with all laws applicable to the actions contemplated by this EULA. You acknowledge that the Software is of EEC origin, is provided subject to subject to the export control laws of the applicable territory, and that diversion contrary to applicable export control laws is prohibited. You represent that (1) you are not, and are not acting on behalf of any person who is a citizen, national, or resident of, or who is controlled by the government of any country to which the European Union has prohibited export transactions; and (2) you will not permit the Software to be used for, any purposes prohibited by law, including, any prohibited development, design, manufacture or production of missiles or nuclear, chemical or biological weapons. The Software and accompanying documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFARS Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software and documentation by or for the U.S. Government shall be governed solely by the terms and conditions of this EULA.
12.6. Construction. The headings of sections of this EULA are for convenience and are not to be used in interpreting this EULA. As used in this EULA, the word ‘including’ means “including but not limited to”.
12.7. Governing Law. This EULA is governed by the laws of the European Union which will be the exclusive jurisdiction for disputes arising out of or in connection with this EULA. The U.N. Convention on Contracts for the International Sale of Goods does not apply.
12.8. Third Party Rights. Other than as expressly set out in this EULA, this EULA does not create any rights for any person who is not a party to it, and no person who is not a party to this EULA may enforce any of its terms or rely on any exclusion or limitation contained in it.
12.9. Order of Precedence. In the event of conflict or inconsistency among the Product Guide, this EULA and the Order, the following order of precedence shall apply unless otherwise set forth in an enterprise license agreement: (a) the Product Guide, (b) this EULA, and (c) the Order. With respect to any inconsistency between this EULA and an Order, the terms of this EULA shall supersede and control over any conflicting or additional terms and conditions of any purchase order, acknowledgment or confirmation, or other document issued by You.
12.10.Entire Agreement. This EULA, including accepted Orders and any amendments hereto, and the Product Guide contain the entire agreement of the parties with respect to the subject matter of this EULA and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof. This EULA may be amended only in writing signed by authorized representatives of both parties.
12.11.Contact Information. Please direct legal notices or other correspondence to Binalyze OÜ, Sepapaja 6, 15551 Tallinn, Estonia, Attention: Legal Department.