GO BANYAN, INC.
1. SERVICES AND SOFTWARE
1.1 Access and Use. Subject to and conditioned upon Customer’s compliance with the terms and conditions of the Agreement, (a) Customer may access and use the Service during the Subscription Period solely for purposes of Customer’s internal business operations, and (b) if Customer downloads any Software, Banyan hereby grants Customer a limited license to install, access, and use the Software, in object code form only, in connection with Customer’s use of the Services. Customer may allow its Users to access and use the Service and install, access, and use the Software for the purposes set forth above, provided that Customer shall ensure its Users’ compliance with the terms and conditions of the Agreement, and Customer shall be responsible and liable for any User’s non-compliance with the terms and conditions of the Agreement. The foregoing authorizations granted to Customer are non-exclusive and non-transferable.
1.2 Updates. Banyan may, from time to time in its sole discretion, develop and provide Software updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Service. Customer acknowledges and agrees that Banyan has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality of the Service. If Customer downloads an Application on a mobile device, when such mobile device is connected to the Internet, either (a) the Application will automatically download and install all available Updates, or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer agrees to promptly download and install all Updates and acknowledges and agrees that the Applications or portions thereof may not properly operate should Customer fail to do so.
1.3 Limitations and Restrictions. Customer shall not, and shall not permit any User or other person or entity to, access or use the Service or Banyan Materials except as expressly permitted in the Agreement. Without limiting the foregoing, Customer shall not, except as expressly permitted in the Agreement: (a) copy, modify, or create derivative works or improvements of the Service or Banyan Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, or transfer any Service or Banyan Materials to any person or entity, including in connection with any time-sharing, service bureau, software as a service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Banyan Materials, in whole or in part; (d) bypass or breach any security device or protection used by the Service or Banyan Materials or access or use the Service or Banyan Materials other than through the use of then valid Access Credentials; (e) input, upload, transmit, or otherwise provide to or through the Service or Banyan Systems any Customer Data or other information or materials that (i) contain, transmit, or activate any Harmful Code, or (ii) are unlawful, abusive, malicious, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy right or right of publicity, or racially or ethnically objectionable, or (iii) infringe upon or violate the Intellectual Property Rights of any third party; (g) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Service, Banyan Materials, or Banyan’s provision of services to any third party, in whole or in part; (h) remove, delete, alter, or obscure any Intellectual Property Rights notices from any Service or Banyan Materials; (i) access or use the Service or Banyan Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law; (j) access or use the Service or Banyan Materials for purposes of competitive analysis of the Service or Banyan Materials, the development, provision, or use of a competing service or product, or any other purpose that is to Banyan’s detriment or commercial disadvantage; or (k) otherwise access or use the Service or Banyan Materials beyond the scope of the rights granted under Section 1.1 (Access and Use) above.
2. CERTAIN CUSTOMER OBLIGATIONS
2.1 Customer Control and Responsibility. Customer has and shall retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and Customer has and shall retain sole responsibility for: (a) all Customer Data, including its use, accuracy, quality, and reliability; (b) all information, instructions, and materials provided by or on behalf of Customer in connection with the Services; (c) the Customer Systems; (d) the security and use of Customer’s Access Credentials; and (e) all access to and use of the Service and Banyan Materials directly or indirectly by or through the Customer Systems or Customer’s Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use. Banyan is not liable for any loss or damage arising from Customer’s failure to protect its Access Credentials.
2.2 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 1.3 (Limitations and Restrictions), Customer shall, and shall cause its Users to, immediately (a) notify Banyan of any such actual or threatened activity, and (b) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects.
3.1 Customer Data. Customer represents, warrants, and covenants to Banyan that Customer owns or otherwise has (and, prior to Banyan’s receipt of Customer Data, will have) the necessary rights and consents in and relating to Customer Data, so that Banyan’s receipt and Processing of Customer Data in accordance with the Agreement does not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights or other rights of any User or other person or entity, or any applicable law.
3.2 Prohibited Data. Customer acknowledges that the Service is not designed with security and access management for Processing the following categories of information: (a) any personal information that imposes specific data security obligations on Banyan for the Processing of such data, including any “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996, and other similar information, however described, as defined under applicable law; (b) data that is classified and/or used on the United States Munitions list, including software and technical data; (c) articles, services, and related technical data designated as defense articles or defense services; and (d) ITAR (International Traffic in Arms Regulations) related data (each of the foregoing, “Prohibited Data”). Customer shall not, and shall not permit any User or other person or entity to, provide any Prohibited Data to, or Process any Prohibited Data through, the Service or Banyan Systems. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.
3.3 Data Backup. The Service does not replace the need for Customer to maintain regular data backups or redundant data archives. Banyan HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA.
4.1 Services and Banyan Materials. As between Customer and Banyan, Banyan is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Services and Banyan Materials, including all Intellectual Property Rights therein and thereto. Other than the limited rights and licenses granted to Customer pursuant to Section 1.1 (Access and Use) above, nothing in the Agreement grants Customer any right, title, or interest in or to the Services or Banyan Materials, including any Intellectual Property Rights therein or relating thereto, whether expressly, by implication, estoppel, or otherwise, and all such rights are reserved to Banyan.
4.2 Work Product. Without limiting Section 4.1 (Services and Banyan Materials) above, Banyan is and shall remain the sole and exclusive owner of all right, title, and interest in and to all developments, inventions, technology, materials, and other work product made or conceived or actually or constructively reduced to practice by or on behalf of Banyan in the course of performing any Professional Services (collectively, the “Work Product”), including all Intellectual Property Rights therein and thereto. For clarity, Work Product does not include Customer Data. In the event Customer is a deemed owner of any right, title, or interest in or to any part of the Work Product, Customer agrees to assign, and hereby irrevocably assigns, to Banyan all of its right, title, and interest in and to the Work Product, including all Intellectual Property Rights therein and thereto. Customer agrees to give Banyan, and any person designated by Banyan, reasonable assistance, at Banyan’s expense, in perfecting and/or evidencing Banyan’s rights in and to the Work Product, including by executing and delivering all documents reasonably requested by Banyan for such purposes. Banyan hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use Work Product provided by Banyan to Customer in connection with the Professional Services solely for Customer’s internal business operations and in connection with the Service and Equipment, subject to all applicable terms and conditions of the Agreement.
4.3 Customer Data. As between the parties, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights therein and thereto, subject to the license granted herein to Banyan. Customer hereby grants to Banyan a non-exclusive, worldwide, transferable, sub-licensable (to its subcontractors), irrevocable, royalty-free, fully paid-up license to Process the Customer Data in order to provide the Services to Customer and its Users.
4.4 Service Analyses. Banyan may (a) compile statistical and other information related to the performance, operation, and use of the Service, and (b) use data from the Banyan Systems in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes ((a) and (b) collectively, “Service Analyses”). Banyan may make Service Analyses publicly available and use the Service Analyses for its business purposes; however, Service Analyses shall not incorporate Customer Data in a form that could serve to identify Customer or any individual. Service Analyses do not constitute Customer Data, and Banyan shall retain all right, title, and interest in and to Service Analyses, including all Intellectual Property Rights therein and thereto.
4.5 Uploaded Materials. Customer or Users may upload photos, reviews, stories, experiences, or other materials (“Uploaded Materials”) that may be covered by intellectual property laws and protections. By providing the Uploaded Materials or allowing them to be provided, Customer and User grant Banyan a perpetual, unrestricted, fully-assignable, worldwide, and royalty-free license to use such Uploaded Materials. Banyan shall have no obligation of any kind with respect to such Uploaded Materials, and Banyan be free to reproduce, use, disclose, exhibit, display, transform, edit, abridge, create derivative works from and/or distribute the Uploaded Materials without limitation or restriction (including in connection with the sale, acquisition, or merger of Banyan or of all or substantially all of Banyan’s assets), without compensation or any other obligations to customer or User.
5. OTHER WEBSITES AND ANCILLARY SERVICES
5.2 Ancillary Services. As part of the functionality of certain parts of the Service, Customer may have access to certain third party online financial, social media, and other services (“Ancillary Services”) and may post Customer Data using such Ancillary Services. The Service is designed to allow Customer to access accounts Customer may have on the Ancillary Services to allow the Service to access and aggregate information from such account(s) and to post Customer Data to such accounts. Customer acknowledges and agrees that (a) some third parties may not allow the Service to access certain Ancillary Services, and (b) third parties may make changes to their websites or other Ancillary Services, with or without notice to Banyan, that may affect overall performance of the Service and prevent or delay aggregation of information from Customer’s account(s) on such Ancillary Services. Customer acknowledges and agrees that Banyan has no control over any of the Ancillary Services, and will have no liability whatsoever for the Ancillary Services or any actions or inactions on the part of such third parties resulting in Customer’s inability to use the Service to access its accounts, obtain data, or otherwise access or use the Ancillary Services.
5.3 Collection of Ancillary Account Data. Customer acknowledges that in accessing the Ancillary Services through the Service, Customer’s username(s), password(s), and any other security or access information for Customer’s account(s) on such Ancillary Services, and data and other information in such account(s) (collectively, “Ancillary Account Data”), may be collected and stored through the Service. Customer authorizes Banyan, in conjunction with Banyan’s provision of the Services, to: (a) access Customer’s account(s) on Ancillary Services and collect and Process Customer’s Ancillary Account Data; (c) access the applicable third party websites and Ancillary Services using Customer’s Ancillary Account Data; and (c) take such other actions as are reasonably necessary to perform the actions described in (a) and (b) above. Customer hereby represents and warrants to Banyan that Customer is the legal owner of Customer’s Ancillary Account Data and that Customer has the authority to appoint, and hereby expressly does appoint, Banyan as Customer’s agent with limited power of attorney to access and retrieve Customer’s Ancillary Account Data and to post Customer Data thereto on Customer’s behalf. Customer further acknowledges and agrees that all Ancillary Account Data constitutes Customer Data hereunder and is subject to the applicable terms and conditions of the Agreement.
6. CHANGES AND SUSPENSION
6.1 Changes to the Services. Banyan reserves the right to make changes to the Services and Banyan Materials, or any portion thereof, for any reason. Customer agrees that Banyan will not be liable to Customer or third party for any such change.
6.2 Suspension of Access. Banyan may suspend Customer’s and/or any of its Users’ access to or use of all or any part of the Services or Banyan Materials, without incurring any resulting obligation or liability, if: (a) Banyan receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Banyan to do so; (b) Banyan believes, in its good faith and reasonable discretion, that Customer or any of its Users have violated the provisions of Section 1.3 (Limitations and Restrictions) or Sections 3.1 (Customer Data) or 3.2 (Prohibited Data); or (c) Customer fails to pay any amount when due under the Agreement. Any such suspension shall not excuse Customer from its obligation to make the payment(s) contemplated under the Agreement to Banyan. If Banyan suspends the Service, Banyan shall promptly restore Customer’s (or the applicable User’s) access to and use of the Service after the event giving rise to the suspension has been resolved to Banyan’s satisfaction.
7.1 Indemnification of Banyan. Customer will indemnify, defend, and hold harmless Banyan, its affiliates, and its and their respective officers, directors, employees, and agents from and against all losses, damages, judgments, assessments, fines, costs, and expenses (including court costs and reasonable attorneys’ fees) arising out of or in connection with any third party claim, action, suit, or proceeding arising out of or related to: (a) Customer Data, including any Processing of Customer Data by or on behalf of Banyan in accordance with this Agreement and any use of the Ancillary Services by Banyan or Customer; (b) Banyan’s compliance with any specifications or directions provided by or on behalf of Customer; (c) any claim arising out of or related to a User’s use of the Services, Dedicated Device, or Banyan Materials; or (d) any breach or violation of this Agreement or applicable law by Customer, any User, or any other person accessing and/or using any of the Services or Banyan Materials directly or indirectly by or through the Customer Systems or Customer’s Access Credentials, with or without Customer’s knowledge or consent.
7.2 Indemnification Procedure. Upon receiving notice of a claim for which Banyan is entitled to indemnification by Customer, Banyan shall provide Customer with written notification and the opportunity to assume sole control over the defense or settlement of such claim and reasonable assistance to settle and/or defend such claim at Customer’s sole expense; provided, however, that: (a) any settlement which would impose a non-monetary obligation on and/or admission or finding of liability or wrongdoing by Banyan will require Banyan’s prior written consent; (b) the failure to provide timely notice, control, or assistance shall not relieve Customer of its indemnification obligations hereunder; and (c) Banyan may have its own counsel present at and participating in all proceedings or negotiations relating to a claim, at Banyan’s own expense, unless Customer fails or refuses to secure legal counsel to defend any claim in a timely manner, in which case Customer shall pay all expenses related to Banyan’s use of such counsel.
8. TERM, PAYMENT, BILLING AND TERMINATION
8.1 Term and Payment. The Agreement commences on the Effective Date and will remain in effect for the Subscription Period or Term of the Enrollment Form or Order Form, unless terminated earlier in accordance with its express provisions. Thereafter, this Agreement and any underlying Enrollment or Order Form will automatically renew for successive terms equal to the original Subscription Period or Term unless terminated by Customer by giving at least sixty (60) days written notice to the other party prior to the end of the applicable term. If such notice is provided, the termination of this Agreement and underlying Enrollment or Order Form will become effective upon the expiration of the then current Term. Customer’s obligations to the Company are not altered by a sale, transfer or assignment of Customer’s business or business assets to a third party. Payment shall be made as provided in the Enrollment Form or Order Form. Unless otherwise specified in the Enrollment Form or Order Form, throughout the Term of this Agreement, Customer agrees to pay Banyan the fees indicated on the Enrollment Form or Order Form (which reflects the election of Customer). Additionally, Customer agrees to allow the Banyan to auto bill the Customer on a monthly, quarterly or annual basis, using the Customer’s credit card information, as indicated on the Enrollment Form or Order Form. Payment shall be due and owing to the Company either annually or each calendar month (as per Customer’s election on the Enrollment or Order Form). Should Company be unable to process/receive any payment due and owing, payment shall be considered overdue. Company shall have the right to charge interest on any and all overdue amounts at the rate of 12%, compounded monthly, or the maximum lawful amounts, whichever is less. In the event that the Company sends the account for collection and/or initiates legal action in order to collect overdue amounts, the Customer shall be liable for all cost and expenses of such action, including reasonable attorney’s fees, court costs, expenses, and a Company collections process fee equal to 40% of the outstanding amount due. Additionally, after payment becomes overdue, the Company shall have the right to immediately cease the Customer’s access to the Company’s Services and Software (‘Software’ means Banyan’s software and computer application package intended to assist Customer in the online promotion and marketing of their business, commonly referred to as the name indicated in the Customer Order Form, any modifications or alternations thereto, all Software-related derivative work, information, materials, and training related to the Software). Customer may dispute a charge to their credit card or a bill within 90 days of the charge date or bill receipt, but unless otherwise provided by law Customer still have to pay all charges until the dispute is resolved. CUSTOMERS MAY PROVIDE WRITTEN NOTICE TO BANYAN TO DISPUTE CHARGES OR YOUR BILL OR ANY SERVICE(S) FOR WHICH YOU WERE CHARGED OR BILLED, BUT IF CUSTOMER WISHES TO PRESERVE THEIR RIGHT TO BRING ANY CLAIMS REGARDING SUCH DISPUTE, CUSTOMER MUST WRITE TO BANYAN AT THE NOTICE ADDRESS LISTED IN THIS AGREEMENT WITHIN THE 90 DAY PERIOD MENTIONED ABOVE. IF CUSTOMER DOES NOT NOTIFY BANYAN IN WRITING OF SUCH DISPUTE WITHIN THE 90-DAY PERIOD, CUSTOMER WILL HAVE WAIVED THEIR RIGHT TO DISPUTE THE CHARGE OR BILL OR SUCH SERVICE(S) AND TO BRING ANY CLAIM REGARDING ANY SUCH DISPUTE.
8.2 Termination by Banyan. Banyan may terminate the Agreement and suspend or terminate Customer’s access to the Service, effective immediately upon written notice to Customer, if (a) Customer fails to pay any amount when due and such failure continues more than 15 days after delivery of written notice thereof, (b) Customer breaches any of Customer’s obligations under Section 1.3 (Limitations and Restrictions), (c) Banyan determines, in its sole discretion, that Customer’s business plans are competitive with those of Banyan, or (d) Customer’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Banyan’s ability to provide access to the Service to other customers; provided that in the case of subsection (d): prior to any such suspension or limitation, Banyan shall use commercially reasonable efforts to provide notice to Customer describing the nature of the damage or degradation, and Banyan may reinstate Customer’s use of or access to the Service, as applicable, if Customer remediates the issue within 30 days of receipt of such notice. If Customer does not pay amount due within 45 days of the invoice date, Banyan has the option to apply a late fee of $50.00. Furthermore, each 30 days thereafter, an additional late fee of $50.00 may be applied. It is at the discretion of Banyan to waive late fees after the outstanding balance has been satisfied.
8.3 Mutual Right of Termination. Either party may terminate the Agreement, effective upon written notice to the other party, if the other party materially breaches any material provision of this Agreement (except as set forth in Section 8.2 (Termination by Banyan) above), and such breach is incapable of cure, or being capable of cure, remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach.
8.4 Effect of Termination. Upon any expiration or termination of the Agreement, all rights and licenses granted to Customer under the Agreement shall immediately terminate, and Banyan may disable Customer’s and its User’s access to the Service. In addition, Customer shall, and shall instruct its Users to, immediately cease using the Service and Banyan Materials and destroy all copies of the Banyan Materials in Customer’s possession or control. The expiration or termination of the Agreement shall not (a) prejudice or affect any right of action or remedy that has accrued or will accrue to either party due to the other party’s acts or omissions prior to the effective date of the termination or expiration, or (b) relieve Customer of its obligation to pay any charges that have accrued or have become payable to Banyan under the Agreement. Notwithstanding any of the foregoing to the contrary, if Customer desires to terminate this Agreement for any reason other than for breach by Banyan, it shall not be subject to termination fees, but it shall continue to pay the fees set forth in the Enrollment Form through the end of the Subscription Period.
8.5 Survival. Any right or obligation of the parties in the Agreement that, by its nature, should survive termination or expiration of the Agreement, shall survive any expiration or termination of the Agreement, including the provisions of Sections 1.3 (Limitations and Restrictions), 2.1 (Customer Control and Responsibility), 3 (Data), 4 (Ownership), 7 (Indemnification), 8.4 (Effect of Termination), 8.5 (Survival), 9 (Disclaimers), 10 (Limitations of Liability), 13 (General), and 14 (Definitions).
9.1 Disclaimer of Warranties. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT USE OF THE SERVICES, DEDICATED DEVICE, AND Banyan MATERIALS IS AT CUSTOMER’S SOLE RISK. ALL SERVICES, DEDICATED DEVICE, AND Banyan MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND Banyan HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, TO THE EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, Banyan DOES NOT MAKE ANY WARRANTY OF ANY KIND THAT THE SERVICES, DEDICATED DEVICE, OR Banyan MATERIALS, OR ANY RESULTS OF THE USE THEREOF, SHALL MEET CUSTOMER’S REQUIREMENTS OR THE REQUIREMENTS OF ANY OTHER PERSON, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE SECURE, ACCURATE, FREE OF HARMFUL CODE, OR ERROR FREE.
9.2 No Professional Advice. The information provided on or through any of the Service is for informational purposes only and should not be construed as legal, financial, accounting, or other professional advice. Customer should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable area before acting upon any information provided on or through any Service.
10. LIMITATION OF LIABILITIES
10.1 Exclusion of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BANYAN, ITS AFFILIATES,OR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SERVICE PROVIDERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS, DAMAGE OR LOSS OF USE OF DATA, BUSINESS INTERRUPTIONS, AND LOST BUSINESS OPPORTUNITY), REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE OTHERWISE FORESEEABLE. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL Banyan, ITS AFFILIATES,OR ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, OR SERVICE PROVIDERS BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (a) CUSTOMER’S USE, OR INABILITY TO USE, THE SERVICES, DEDICATED DEVICES, OR BANYAN MATERIALS; (B) ANY CUSTOMER DATA, INCLUDING ANY UNAUTHORIZED ACCESS TO OR USE OF ANY CUSTOMER DATA; (c) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; AND/OR (d) ANY HARMFUL CODE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES, DEDICATED DEVICES, OR ANY BANYAN MATERIALS.
10.2 Maximum Liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL THE COLLECTIVE AGGREGATE LIABILITY OF BANYAN, ITS AFFILIATES,AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS AND SERVICE PROVIDERS UNDER OR RELATED IN ANY WAY TO THE AGREEMENT OR ITS SUBJECT MATTER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO BANYAN UNDER THE AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3 Basis of the Bargain. THE LIMITATIONS OF LIABILITY HEREIN ARE A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN AND REFLECT A FAIR ALLOCATION OF RISK. THE SERVICES, DEDICATED DEVICE, AND BANYAN MATERIALS WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS, AND CUSTOMER AGREES THAT THE LIMITATIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
11. EXPORT COMPLIANCE
Customer acknowledges that the Equipment and Banyan Materials may be subject to export restrictions by the United States government and import restrictions by certain foreign governments. Customer shall not, and shall not allow any other person or entity to, remove or export from the United States or allow the export or re-export any Equipment or Banyan Materials or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the United States Commerce Department’s Table of Denial Orders or United States Treasury Department’s list of Specially Designated Nationals; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import laws of any United States or foreign agency or authority.
12. ADDITIONAL TERMS FOR CERTAIN APPLICATIONS
The following additional terms and conditions apply to an Application only if it is designed for use on an Apple (“Apple”) iOS-powered mobile device. Customer and Banyan acknowledge that the Agreement is concluded between Customer and Banyan only, and not with Apple, and Banyan, not Apple, is solely responsible for the Application and the content thereof. Customer agrees that its license to use the Application is limited to the Apple iOS mobile device that Customer owns or controls and that Customer’s use of the Application shall be subject to the usage rules set forth in Apple’s then-current App Store Terms of Service. Customer and Banyan agree that Apple shall have no obligation to provide maintenance and support services with respect to the Application. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to the Application. Customer agrees that Banyan, and not Apple, shall be responsible for the investigation, defense, settlement and discharge of any third party intellectual property infringement claim related to the Application. Customer represents and warrants that Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that Customer is not listed on any U.S. Government list of prohibited or restricted parties. Banyan’s contact information for any questions or inquiries with respect to the Application is set forth in Section 13.3 below. Customer agrees to comply with all applicable third party terms of agreement when using the Application. Customer agrees that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms of Service applicable to the Application. Upon Customer’s acceptance of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against Customer as a third party beneficiary thereof.
13.2 Geographic Restrictions. Banyan does not represent that the Service or any Banyan Materials are appropriate or available for use outside of the United States. Access to and use of the Service may not be legal by certain persons or in certain countries. If Customer accesses the Service from outside the United States, Customer does so on its own initiative and is responsible for compliance with all applicable laws.
13.3 Notices. Customer agrees that Banyan may communicate any notices to Customer under the Agreement through electronic mail, by posting on Banyan’s website, or by regular mail. Notices will be deemed effectively given to Customer immediately when sent by electronic mail or posted on Banyan’s website, or two (2) business days after being sent by regular mail. All notices, requests, and other communications to be given to Banyan hereunder shall be in writing and sent to Banyan by email to email@example.com, or registered or certified mail, postage prepaid, return receipt requested to the following address: Banyan, [370 East 800 South, Orem, Utah 84097] (or to such other address that Banyan may designate from time to time in accordance with this Section 13.3). Notices will be deemed effectively given to Banyan when received.
13.4 Governing Law; Jurisdiction and Venue. The Agreement as well as any dispute or claim arising out of or related to the Agreement, its subject matter, or its formation (in each case, including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Utah, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to the Agreement shall be instituted exclusively in the federal or state courts located in Salt Lake City, Utah, and Customer further agrees that such courts shall have in personam jurisdiction and venue with respect to Customer. Customer hereby submits to the in personam jurisdiction and venue of such courts and hereby waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts.
13.5 Limitation on Time to File Claims; Waiver of Jury Trial. EXCEPTING CONFLICTING TERMS IN OF 8.1 OF THIS AGREEMENT, IN WHICH CASE SECTION 8.1 WILL SUPERSEDE THIS CLAUSE, ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THE AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. CUSTOMER HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING, CLAIM, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THE AGREEMENT.
13.6 Miscellaneous. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under the Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Banyan’s prior written consent. Banyan may assign this Agreement in connection with a merger, asset acquisition or other similar change of control transaction without prior notice or consent. The Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. Any remedy of Banyan set forth in the Agreement is in addition to any other that may be available to Banyan at law, in equity, or otherwise. Banyan’s failure to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent possible, and the remaining provisions of the Agreement will continue in full force and effect. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment or fiduciary relationship between the parties. In the event of a dispute arising out of or related to this Agreement, the prevailing party in any litigation will be entitled to recover its reasonable attorney fees and court costs from the non-prevailing party. Unless the context otherwise requires, for purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to the Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; (e) the headings in the Agreement are for reference only and do not affect the interpretation of this Agreement; and (f) the parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
13.7 Child Online Privacy Protection Act. The Child Online Privacy Protection Act (“COPPA”) restricts website operators from collecting or using any personal information from individuals under the age of 13. In order to exceed the compliance requirements of COPPA, we do not target children under 18, nor do we knowingly collect any information from children under 18 or allow plug-ins or other services to collect such information without express written consent from their parents or guardians. We also prohibit children under 18 from posting any information on the Website or Application without written parental consent. By using any of the Services or posting any information about yourself, you warrant that you are at least 18 years old. In addition, you may not post any photos or other information about any individual who is under 18. If you become aware of any materials posted by a child under age 18, please notify us immediately.
13.8 Copyright Provisions. We comply with the “safe harbor” provisions of the Digital Millennium Copyright Act of 1998. If you see any materials on the Website or Application that you believe violate any copyright rights, including yours, please send an e-mail describing the violation you believe exists to the copyright agent designated below. If we become aware of any such items, we will promptly take action to ensure we are in full compliance with all privacy and copyright laws. Our copyright agent is KUNZLER LAW GROUP 50 WEST BROADWAY, 10TH FLOOR SALT LAKE CITY, UT 84101.
13.9 Linking Policy. If you link to this Website, we require that you follow these guidelines. The link to this Website must not damage, dilute or tarnish the goodwill associated with any Banyan names and/or intellectual property, nor may the link create the false appearance that your website and/or organization is sponsored, endorsed by, affiliated and/or associated with Banyan. You may not “frame” this Website or alter its intellectual property or material in any way. You may not link to the Website for purposes of harming the Website’s ranking in search engines. You agree that if Banyan requests that you remove a link to the Website for any reason, you will do so immediately without charge to Banyan. If you fail to remove any such link after request, you agree to pay Banyan’s costs incurred in enforcing this provision.
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Service.
“Application(s)” means any software application(s) provided by Banyan to be used by Customer or made available to any User in connection with the Services, whether or not used on a Dedicated Device.
“Customer Data” means any and all information, data, and other content, in any form or medium, that is uploaded into the Software or otherwise provided to Banyan, directly or indirectly, by Customer or a User in connection with any of the Services. For purposes of clarity, and not by way of limitation, Customer Data includes photos, comments, reviews, and any other items uploaded by Customer or a User using the Dedicated Device and/or the Applications.
“Customer Systems” means Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third party services.
“Dedicated Device” means an iPad Mini or other dedicated device provided to Customer for use in connection with the Services.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any User from accessing or using the Service or Banyan Systems as intended by this Agreement.
“Intellectual Property Rights” means all forms of industrial and intellectual property rights and protections throughout the world, including any: (a) patents (including any patent applications, together with all reissuances, continuations, continuations-in-part, revisions, extensions, and reexaminations thereof); (b) copyrights; (c) Internet domain names, trademarks, service marks, and trade dress, together with all goodwill associated therewith; (d) trade secrets; (e) rights in databases and designs (ornamental or otherwise); (f) moral rights, rights of privacy, rights of publicity, and similar rights; and (g) any other proprietary rights and protections, whether currently existing or hereafter developed or acquired arising under statutory or common law, including all applications, disclosures, and registrations with respect thereto.
“Order Form” is a document that than Banyan sends to Customer that specifies the products, quantities, and pricing of Banyan’s Service. This also may define the billing frequency and term length of a Customer’s order of Banyan Services.
“Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy, and “Processing” and “Processed” have correlative meanings.
“Service” means use of the Website, the Applications, the Dedicated Device, and any other service referenced in the Enrollment Form.
“Banyan Materials” means the Banyan Systems, Software, and any and all other information, data, documents, materials, works, and other content that are provided or used by Banyan in connection with the Services or otherwise comprise or relate to the Services or Banyan Systems, including any third party materials contained therein, but excluding the Customer Data. For the avoidance of doubt, Banyan Materials include all modifications and derivative works of any of the foregoing and to anything developed or delivered by or on behalf of Banyan under this Agreement.
“Banyan Systems” means the information technology infrastructure used by or on behalf of Banyan in providing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Banyan or through the use of third party services.
“Software” means Banyan’s proprietary software applications (including the Applications) and any third party or other software, and all Updates, new versions, revisions, improvements, and modifications of the foregoing, that Banyan provides access to and use of as part of the Services.
“Subscription Period” means the initial subscription period to the Services of one (1) year, or otherwise as set forth in a written agreement between Banyan and Customer.
“User” means an employee of Customer.
Last Modified: March 27, 2018