Binox End User License Agreement
August 04, 2021
NOTICE AND DEFINITIONS
Please read this document carefully before proceeding. This is a legal agreement between the client entity listed on the applicable Order Form (“Client”) and Binox Inc, and any of its subsidiaries or affiliates, a New York limited liability corporation with offices at 1400 Old Country Road, Westbury NY 11590 (“Binox”) (individually a “Party” and collectively the “Parties”) and governs Client’s use of the Binox services set forth on the applicable Order Form (the “Services”) made available through the Binox website (the “Site”). By accessing or using the Services, Client agrees to be bound to the terms of this end user license agreement (the “Agreement”) in its entirety. The individual accepting the Order Form represents and warrants that he or she has the necessary authority to bind Client. For good and valuable consideration, for which the receipt and sufficiency of such is acknowledged, the Parties hereby agree as follows:
1. GRANT OF LICENSE
1.1 This Agreement governs Client’s use and access of the Licensed Materials (as defined below), made available to Client by Binox and/or any of its agents and affiliates.
1.2 The “Licensed Materials” consists of all information and content under a paid-for license from Binox to the Site, Services, and any other materials or electronic information reasonably related to Client’s use of the Site and Services, including but not limited to: technology data, technology products, software, websites, Chrome Plugin, networks, and equipment made available by Binox pursuant to this Agreement.
1.3 Subject to the terms and conditions of this Agreement, and provided that Client pays the required fees as set forth under the applicable Order Form, Binox hereby grants Client a limited, revocable, non-exclusive, non-transferable license to access and use the Services.
1.4 Client may:
(a) use the Site, Services, and Licensed Materials solely for Client’s internal business purposes, during the term of the subscription (except that data obtained by Client through the Services prior to the end of subscription term may be used indefinitely following the subscription term consistent with 5.2, below);
(b) make copies of the Licensed Materials and export CSVs, provided that any such copies and exports are maintained and held in a manner for which Client would protect its own confidential information, but with no less than reasonable care. This EULA is expressly made subject to any applicable export and data privacy laws, orders, restrictions, or regulations.
1.5 Client may not, and Client agrees that it will not permit others (including agents and affiliates) to:
(a) reproduce the Site, Services, and Licensed Materials except as expressly permitted above with respect to the Licensed Materials;
(b) modify, translate, create any derivative work(s) of, copy, broadcast, transmit, publish, remove or alter any proprietary notices or labels, license, sublicense, mirror, frame, exploit, reverse engineer, decompile, disassemble or otherwise attempt (i) to defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Site, Services, or Licensed Materials, including without limitation any such mechanism used to restrict access to or control the functionality of Licensed Materials; (ii) to derive the source code or the underlying ideas, algorithms, structure or organization from the Site or Services (except in the event that the foregoing prohibition does not apply to the extent that such activities may not be prohibited under applicable law); or (iii) to use in any manner not expressly permitted under this Agreement;
(c) access, extract or copy information from the Licensed Materials using automated means such as crawlers, bots, scripts or intelligent agents;
(d) use the Licensed Materials for the benefit of or on behalf of any third party without Binox’s prior written consent;
(e) lease, private label, grant a security interest in, sell, resell, transfer, distribute, rent or otherwise allow access to the Site, Services, or Licensed Materials to any third party (including any affiliate or subsidiary of Client);
(f) integrate Licensed Materials into any third party systems such as a CRM or marketing automation system, unless maintained in a manner that includes information identifying that the Licensed Materials originated with Binox;
(g) introduce into the Site or Services any viruses, Trojan horses, time bombs, trap doors or other harmful or malicious code;
(h) use the Site, Services, or Licensed Materials for any illegal purpose or in connection with any data or content that is illegal or otherwise infringes or violates the rights of any third parties; or
(i) export or re-export, directly or indirectly, the Services or Licensed Materials into any country prohibited by the United States Export Administration Act and the regulations thereunder.
1.6 This is a license and not a sale. All right, title, interest, copyrights, trade secrets, and all other rights to the Site, Services, and Licensed Materials shall remain the exclusive property of Binox. All goodwill arising in or from the Binox brand shall inure solely to Binox’s benefit.
2. DELIVERY OF SERVICES/LICENSED MATERIALS
2.1 Binox will make the Licensed Materials available to Client in digital form via online, password-protected access as part of the Services, unless mutually agreed to otherwise. Client will create unique login IDs and passwords for the number of Users set forth on the applicable Order Form. Access credentials shall not be shared by more than one individual. Client shall be responsible for the acts or omissions of any person using passwords or access procedures provided to or created by Client. Binox reserves the right to refuse registration of, or to suspend or cancel, login IDs that violate the terms and conditions set forth in this Agreement or any reason.
2.2 During the term of this Agreement, if Client finds that human-verified contact information in the Licensed Materials is not 95% accurate, in aggregate, Binox will have thirty (30) days following Client’s written notice of such inaccuracy to correct the information.
3. INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS
3.1 Binox reserves all rights not expressly granted herein. Without limiting the foregoing, no rights are granted to access or use the Site or Services to build any product or service. Binox or its licensors retain all right, title, and interest in and to the Site and Services and in any and all patents, copyrights, trade secrets, trademarks, and other intellectual property and proprietary rights thereto, including any registrations, applications, renewals, and extensions of these rights. Client further agrees that the originals, and any copies that may be made or exported, with regard to the Services or sales contacts are and shall continue to be at all times the exclusive property of Binox. Client will not take any action, directly or indirectly, in contravention of such ownership.
4. LICENSE/SUBSCRIPTION FEES
4.1 Client shall pay all fees stated in the applicable Order Form (the “Subscription Fee”). All Subscription Fees are payable according to the payment terms set forth in the Order Form, however if no time is specified, then such Subscription Fees shall be payable immediately upon Client’s receipt of the invoice. All amounts shall be payable without any tax withholding or deduction.
4.2 If Client fails to make timely payment on any Subscription Fees, without limiting any other remedy available to it, Binox reserves the right to withhold or suspend Client’s access and use of the Licensed Materials and Services until all past-due payments are made. Binox shall have the right to charge interest at the rate of 1.5% per month, or the highest rate permitted by applicable law, whichever is lower.
5. TERM AND TERMINATION
5.1 This license will continue for the subscription period set forth in the applicable Order Form, until otherwise terminated.
5.2 Either Party may terminate this Agreement immediately upon written notice if the other Party materially breaches any provision of this Agreement and does not cure such breach within 30 calendar days from written notice of such breach. Client may terminate this Agreement upon 30 days written notice to Binox, provided that all Subscription Fees for the applicable subscription period are fully paid. Except as otherwise indicated under this Agreement, Client shall immediately cease use of the Licensed Materials and Services, and all licenses granted under this Agreement with respect to such Licensed Materials shall expire, upon the termination of this Agreement. Client shall immediately pay any fees due under this Agreement. Except as necessary to exercise the rights provided hereunder, each Party will promptly return or destroy, all of the other Party’s applicable Confidential Information (defined in Section 6.1) within its possession or control, and certify its actions in writing. Client may continue to use company or contact information derived through the Licensed Materials in compliance with this Agreement, following termination of this Agreement strictly in compliance with the restrictions under this Agreement.
5.3 If Binox reasonably believes that Client’s use of the Services or Licensed Materials violates the terms of this Agreement, Binox may suspend Client’s access to the Services or Licensed Materials upon written notice to Client.
6. CONFIDENTIAL INFORMATION
6.1 “Confidential Information” shall mean all documents, information, and data of a Party which has been or may hereafter be disclosed, directly or indirectly, to the other Party, including the Licensed Materials (with the exception of data exported and used in accordance with the terms of this Agreement), the Services, trade secrets, data, technical information, financial information, business information (including business plans, strategies and practices), ideas and know-how, either orally, in writing or in any other form pursuant to or in connection with this Agreement which is indicated to be confidential or the receiving Party should reasonably understand to be confidential.
6.2 Each Party agrees to take all necessary steps to protect any Confidential Information of the other Party with at least the same degree of care that the receiving Party uses to protect its own confidential and proprietary information of like kind, but no less than reasonable care. Neither Party shall use the other Party’s Confidential Information other than for purposes related to the use of the Licensed Materials and Services in accordance with and each Party’s obligations under this Agreement. Notwithstanding the foregoing, a Party may disclose Confidential Information, if necessary, if such Confidential Information (a) was known to such Party, as demonstrated by written records, or was in the public domain prior to the time it was obtained by such Party; (b) subsequently becomes generally available to the public by publication through no fault of a Party or breach of this Agreement; or (c) is required by court, governmental, administrative or another legal order.
6.3 Of the Confidential Information provided by Client, Binox only stores information required to create Client’s account and User IDs, and to provide the Services and Licensed Materials to Client. No other Confidential Information is retained by Binox; nor shall Client provide other Confidential Information to Binox.
7. DISCLAIMER OF WARRANTIES
7.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLIENT AGREES THAT BINOX HAS MADE NO EXPRESS WARRANTIES REGARDING THE LICENSED MATERIALS OR SERVICES AND THAT THE SITE, SERVICES, AND LICENSED MATERIALS ARE PROVIDED TO CLIENT ON AN “AS IS” BASIS, WITHOUT ANY WARRANTY OF ANY KIND. BINOX AND ITS LICENSORS, AGENTS, OFFICERS, AND AFFILIATES DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SITE, SERVICES, AND LICENSED MATERIALS WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, OR NONINFRINGEMENT OR THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION, OR ANY WARRANTY ARISING OUT OF COURSE OF DEALING OR TRADE USAGE. IT IS CLIENT’S RESPONSIBILITY TO BACK UP ANY DATA OR CONTENT PROVIDED TO CLIENT HEREUNDER. CLIENT IS SOLELY RESPONSIBLE FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, SECURITY, MAINTENANCE AND STORAGE OF CLIENT DATA AND CONTENT.
7.2 Each party represents and warrants that it has the legal power to enter into this Agreement.
8. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY OR ITS LICENSORS, AGENTS, OFFICERS, OR AFFILIATES BE LIABLE FOR LOSS OF DATA, LOSS OF USE, LOST PROFITS, INTERRUPTION OF BUSINESS, COST OF COVER OR OTHER SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR INDIRECT DAMAGES ARISING FROM THE USE OF THE SITE, THE SERVICES, OR THE LICENSED MATERIALS HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION SHALL APPLY EVEN IF BINOX OR ITS LICENSORS, AGENTS, OFFICERS, OR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO A PARTY’S BREACH OF ITS INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY CLIENT FOR THE LICENSED MATERIALS AND THE SERVICES WITHIN THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS.
9.1 Client agrees to indemnify and hold Binox, its licensors, agents, officers and affiliates harmless from any and all costs, losses, liabilities and expenses arising out a third party claim to the extent arising from Client’s (i) breach of this Agreement, (ii) use of the Site, Services, Licensed Materials or any information or data derived therefrom, or (iii) gross negligence or willful misconduct.
10.1 All notices or other communications permitted or required to be given hereunder shall be sent by electronic mail to the email address set forth on the Order Form for such purpose and shall be deemed provided when sent. If Client fails to provide an email address for notices, Binox may provide notices hereunder by any means reasonably calculated to provide Client with actual notice thereof.
10.2 This Agreement shall be exclusively governed by, and construed in accordance with, the laws of the State of New York without regard to conflict of laws principles.
10.3 Neither Party may assign this Agreement without express written consent from the other Party, except that either Party may assign this Agreement to a successor-in-interest pursuant to an assignment, merger, or sale of a majority interest in its voting equity, or a sale of all or substantially all of its assets or business, provided however that Client may not assign such rights to any competitor of Binox.
10.4 The Parties acknowledge and agree that the unauthorized disclosure of Party’s Confidential Information or Licensed Materials may cause irreparable harm to the other Party for which there is no adequate remedy at law and that each Party shall be entitled to seek equitable and injunctive relief to prevent further disclosure without the need to post bond or other security interest, in addition to monetary damages and any other such relief as a court may determine appropriate. Unless expressly stated herein, no remedy of the Parties is intended to be, nor shall be construed as, an exclusive remedy and each Party retains all additional rights and remedies that it may have at law or in equity.
10.5 This Agreement constitutes the entire understanding of the parties and supersedes all prior communications, understandings, and agreements relating to the subject matter of this Agreement, whether oral or written. Binox may propose amendments to this Agreement at any time by providing notice of such proposed amendments in a manner permitted hereunder. Such proposed amendments shall be deemed accepted and become part of this Agreement thirty (30) days after the date such notice is given unless Client informs Binox that it does not accept the proposed amendments, in which case the existing terms will continue in full force and effect. No other modification to this Agreement shall be valid unless by written amendment signed by both Parties hereto. All other modifications shall be deemed void.
10.6 Neither Party nor any of its respective licensors, agents, officers, or affiliates will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including, but not limited to, acts of God, labor disputes or other industrial disturbances, pandemics or other public heath emergencies, electrical or power outages, utilities or other telecommunications failures, earthquakes, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
10.7 Failure by a Party to insist on strict performance of any of the terms and conditions of this Agreement will not operate as a waiver by the Party of that or any subsequent default or failure of performance. Should any provision of this Agreement be or become invalid or unenforceable in whole or in part, the remaining provisions shall be valid and enforceable.
10.8 In the event of any dispute arising under or out of this Agreement, the prevailing Party shall be entitled to recover its reasonable costs and expenses incurred in enforcing the terms of this Agreement, including but not limited to, reasonable attorney’s fees.
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