These Terms of Service (“Terms”) are entered into as of the effective date as set forth on the electronic order form accepted by you in connection with your use of the Licensed Deliverables (“Order Form”), by and between Banner Analytics, Inc., a Delaware corporation (“Banner”) and you or the organization you represent (“Licensee”).
Banner has developed and may in the future develop proprietary data syncing software, dashboards and solutions, and Licensee desires to obtain a license to use such software, dashboards, add-on capabilities and solutions.
Banner and Licensee hereby agree as follows:
1. CERTAIN DEFINITIONS. For purposes of these Terms, the term “Licensed Deliverables” shall mean any and all of the following:
a. DERIVATIVE WORK. The term “Derivative Work” means a revision, enhancement, modification, translation, abridgment, condensation or expansion of any Licensed Deliverable or any form in which any Licensed Deliverable may be recast, transferred, or adapted.
b. information. The term “Information” means information resulting from the use of any or all of the Licensed Deliverables.
c. LICENSED MATERIALS. The term “Licensed Materials” refers to any and all materials including documentation and support material, including any on-line training materials, in hard copy and electronic format (if available) designed to assist Licensee in the understanding, application, capability, maintenance, or use of the Licensed Deliverables which are delivered to Licensee by Banner pursuant to and/or during the Term, and any updates or modifications thereof.
d. SOFTWARE. The term “Software” refers to (i) the proprietary software made available to Licensee pursuant to these Terms as more fully described in the applicable Order Form, (ii) any Add-ons as described in the applicable Order Form (the “Add-ons”), and (iii) any Banner delivered updates, upgrades, enhancements, or modifications to the Software.
2. LICENSE GRANT. Banner hereby grants, and Licensee hereby accepts, subject to the terms and conditions of these Terms, a limited, non-exclusive, non-sublicensable, non-transferable, license during the Term to use the Licensed Deliverables as set forth herein (the “License”) and as more fully set forth on or limited by the applicable Order Form. Licensee shall not have any rights to the Licensed Deliverables except as expressly granted in these Terms. Banner reserves to itself all rights to the Licensed Deliverables not expressly granted pursuant to these Terms. Subject to the terms and conditions of these Terms, Licensee hereby grants to Banner, during the Term, the right and license to use, modify, organize, display and access all Licensee information and content necessary for Banner’s performance of its obligations hereunder (the “Content”) and such other rights and authorizations as are necessary or required for Banner to perform the services contemplated hereby and for the Software to perform its intended purpose, in each case in accordance with any usage guidelines for the Content which may be provided by Licensee to Banner in writing from time to time. Licensee hereby agrees that during the Term, it shall not enter into any agreement with any third party whereby such third party would have access to the Content or would otherwise perform similar services to the services contemplated by these Terms.
3. COPYRIGHT and TITLE. The Licensed Deliverables and any copy thereof, in whole or in part, and all copyrights, trade secrets and other proprietary rights therein, including any Derivative Work, are and will remain the sole property of Banner, regardless of the use made by Licensee of the same and in any format; and are protected by certain United States and international copyright laws and trademark laws. The License confers no title of ownership in the Licensed Deliverables and is not a sale of any rights in the Licensed Deliverables. Licensee shall treat the Licensed Deliverables with at least the same standard of care as it treats any other material copyrighted and/or trademarked by a third party, in no case less than a reasonable standard of care. Licensee agrees not to, and to use best efforts to cause its customers and any permitted sublicensees, if any, not to, challenge Banner’s ownership in or enforceability of Banner’s rights in and to any Licensed Deliverable or any related information technology.
4. WARRANTY and INDEMNITY. Banner shall defend, indemnify and hold harmless Licensee and its respective affiliates, directors, officers, employees, agents and representatives from and against any losses, damages, liabilities, expenses (including reasonable attorneys’ fees), and judgments, in each case based on third party claims that Licensee’s authorized use of the Software violates or infringes any U.S. patent that has issued as of the Effective Date, copyright, trademark, or trade secret; provided that (a) Licensee gives Banner prompt written notice of the claim; (b) Banner has full and complete control over the defense and settlement of the claim; (c) Licensee provides assistance in connection with the defense and settlement of the claim as Banner may reasonably request; and (d) Licensee complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials). Banner shall have the right to settle the claims of any claimant(s) in its sole and absolute discretion. Banner will have no obligation under this Section 4 for any infringement to the extent that it arises out of or is based upon: (i) any unauthorized combination, operation, or use of the Software if such infringement would have been avoided but for such combination, operation, or use; (ii) designs, requirements, or specifications for the Software required by or provided by Licensee, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (iii) use of the Software outside of the scope of the License; (iv) Licensee’s failure to use the latest release of the Software or to comply with instructions provided by Banner, if the alleged infringement would not have occurred but for such failure; or (v) any modification of the Software not made by Banner where such infringement would not have occurred absent such modification. Licensee will reimburse Banner for any costs or damages that result from these actions. This Section 4 states Banner’s sole and exclusive liability, and Licensee’s sole and exclusive remedy, for the actual or alleged infringement by Banner of any third party intellectual property right by the Software.
5. USE OF LICENSED DELIVERABLES. The Licensed Deliverables are for Licensee’s use for its own internal business purposes, except with respect to any exceptions expressly set forth in the applicable Order Form. Use of Information is subject to the provisions set forth in Sections 11 and 12 below, and the restrictions set forth in this Section will survive the termination of these Terms. If there is unauthorized use by anyone who obtained access to the Licensed Deliverables directly or indirectly through Licensee, Licensee shall take all steps necessary to terminate the unauthorized use. Licensee will cooperate and assist with any actions taken by Banner to prevent or terminate such unauthorized use.
6. TERM, FEE AND PAYMENT. The License granted by these Terms shall be for an initial term as set forth in the applicable Order Form which shall begin as of the Effective Date (“Initial Term”). If no initial term is stated in an Order Form, then the Initial Term shall be one month. At the end of each Renewal Term and the Initial Term, these Terms and the License shall automatically renew for subsequent periods of one month each (each a “Renewal Term” and together with the Initial Term, the “Term”) unless either party provides the other with notice of cancellation. In consideration of the License rights granted above, Licensee shall pay the Fees set forth in the applicable Order Form. The fees described on the Order Form shall be due each month (the “Monthly Fees”) and may be automatically charged to the account or payment method provided by Licensee. The Monthly Fees are due and payable in advance on the Effective Date and each month thereafter on the same day of month as the Effective Date. The fees for a Renewal Term shall be at the then current price on a monthly basis unless Banner notifies Licensee of a price change before the end of the then-current term and shall be due in the same manner as set forth in the applicable Order Form. Additional fees are subject to change upon renewal of the License. All amounts payable hereunder by Licensee shall be payable in United States funds. The Licensee agrees to pay any and all fees, assessments, and taxes associated with the amounts due under these Terms. A finance charge shall be imposed on all account balances outstanding over 30 days. The finance charge is 1.5% per month or the highest rate allowed under applicable law, whichever is lower. During the Term and for three years thereafter, Licensee will keep current, complete and accurate records regarding the reproduction, installation, and use of the Software. Licensee will provide such information to Banner and certify that it has paid all fees required under these Terms within fifteen business days of any written request, so long as no more than one request is made in any twelve month period. Licensee will, after reasonable prior notice from Banner, provide Banner and its representatives reasonable access to Licensee’s premises, records, and personnel so that Banner may audit and confirm that Licensee complies with these Terms. If an audit reveals any reproduction, installation, use, or distribution of the Software or any Licensed Deliverables that is not compliant with these Terms, Licensee will promptly comply with these Terms and make an additional payment as contemplated by these Terms, plus interest at the rate specified in this Section 6. If the amount of the underpayment is 5% or greater, Licensee will promptly reimburse Banner for its reasonable costs of conducting such audit.
7. ASSIGNMENT. Licensee shall not assign or otherwise transfer the License granted hereby or the rights granted hereunder without the prior written consent of Banner. A request by Licensee to assign or otherwise transfer the License granted hereby must be in writing and Banner shall have absolute, complete and unqualified discretion in granting or denying such request. Any attempt to assign or otherwise transfer any of the rights, duties or obligations hereunder without compliance with this Section is and shall be void ab initio. Banner shall be permitted to assign these Terms to any successor to all or substantially all of the assets of Banner or the business unit of Banner that is in the business of licensing the Licensed Deliverables, whether by merger, acquisition, asset sale, exclusive license, stock sale or otherwise.
8. PERMISSION TO COPY Licensed Deliverables. Licensee may copy the Licensed Deliverables only as reasonably necessary to support a use authorized under this License. Licensee shall maintain and place on any copy of the Licensed Deliverables which it reproduces any notice(s) and/or legend(s) embedded in and/or affixed to the Licensed Deliverables. Licensee shall reproduce and include the copyright notice on any copy. All copies of the Licensed Deliverables, whether provided by Banner or made by Licensee as permitted by these Terms, shall remain the property of Banner. All other copying is prohibited.
9. UPDATES AND SUPPORT SERVICES. Banner will provide updates to the Software without additional charge. Banner will provide Licensee with support as long as Licensee is not in default of any material terms of these Terms. The support in using the Licensed Deliverables may occur at the discretion of Banner by phone, email, or mail request(s) to Banner for help on incidental needs related to use of Software. Licensee shall also have web access to online Banner training materials, if any, for its internal use only, at no additional charge. Any training, consulting or other professional services on the use of the Licensed Deliverables beyond the services specified above will be arranged for under separate service agreement(s) between Banner and Licensee. While Banner will provide a quote for requested services, neither party is obligated to enter into any separate professional service agreement.
10. TRADE SECRETS. The Licensed Deliverables are trade secrets of Banner and contain valuable proprietary products and trade secrets of Banner, embodying substantial creative efforts and confidential information, ideas, and expressions. Licensee shall take appropriate action to protect the confidentiality of the Licensed Deliverables. Licensee shall not modify, translate, disassemble, create Derivative Works based on, reverse-assemble, reverse-compile or otherwise reverse-engineer the Licensed Deliverables in whole or in part, or otherwise use, copy, reproduce or distribute any Licensed Deliverable except as expressly permitted hereunder. The provisions of this section shall survive the termination of these Terms.
11. CONFIDENTIALITY. All information that either party receives from the other that is marked “confidential” by the disclosing party (hereinafter the “Disclosing Party”) or that would reasonably be considered confidential by a party experienced in the industry (hereinafter “Confidential Information”) shall be kept confidential, and each party agrees to treat (and take precautions to ensure that its employees treat) the Confidential Information as confidential in accordance with the confidentiality requirements and conditions set forth below; provided, however, that Banner may disclose these Terms to a party performing financial or legal due diligence with respect to Banner.
Each party agrees, during the Term hereof and for a period of five years thereafter, to keep confidential all Confidential Information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof with at least the same standard of care with which it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable standard of care in the protection of Confidential Information); provided, however, that neither party shall have any such obligation with respect to the use or disclosure to third parties of such Confidential Information as can be established to: (a) have been known publicly; (b) have been known generally in the industry on a non-confidential basis before communication by the Disclosing Party to the recipient (hereinafter the “Recipient”); (c) have become known publicly; (d) have been known otherwise by the Recipient before communication by the Disclosing Party; (e) have been received by the Recipient without any obligation of confidentiality from a source (other than the Disclosing Party) lawfully having possession of such information.
If the Recipient is required (by deposition, interrogatories, requests for information or documents in legal proceedings, subpoenas, regulatory processes (including those of self-regulatory organizations), or similar process) in connection with any proceeding to disclose or otherwise becomes legally compelled to disclose any Confidential Information, the Recipient shall provide the Disclosing Party with prompt written notice and, if requested by the Disclosing Party after receipt of such notice, the Recipient shall provide Disclosing Party with reasonable assistance (subject to reimbursement by the Disclosing Party of all reasonable and out-of-pocket expenses incurred by the Recipient in providing such assistance) so as to enable the Disclosing Party to seek a protective order or other appropriate remedy or waive compliance with these Terms. If such a protective order or other remedy is not obtained or if the Disclosing Party waives compliance with this Section 11, the Recipient may disclose Confidential Information, but only such Confidential Information as it is legally required to disclose in the reasonable opinion of counsel to the Recipient, and shall exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information disclosed. Licensee’s obligations under this paragraph will survive the termination of these Terms or of any License granted under these Terms for whatever reason.
12. OTHER RESTRICTIONS. Licensee may not rent, loan, license, market, or sell the Licensed Deliverables or copies thereof, in whole or in part, to any party, except as may be specifically provided in the applicable Order Form hereto. Licensee hereby agrees (i) to notify its employees and agents who may have access to the Licensed Deliverables or Information of the restrictions contained in these Terms and (ii) to ensure their compliance with such restrictions.
13. TERMINATION. If a party hereto provides a written notice to terminate to the other party, and with respect to the Licensee, ceases use of the Licensed Deliverables on or prior to the end of the then current term, the License granted herein shall terminate at the end of the then current monthly term. Banner may immediately terminate these Terms, or any License granted under it, by giving Licensee written notice of termination if Licensee commits a material breach hereof. Upon any termination of these Terms, Licensee shall cease all use of the Licensed Deliverables, destroy or return to Banner all copies of the Licensed Deliverables then in Licensee's possession and take such other actions as Banner may reasonably request in writing to ensure that no copy of the Licensed Deliverables remain in Licensee's possession. If Licensee terminates these Terms with or without cause, there shall be no refund of the fees paid or due to be paid hereunder.
14. COMPLIANCE WITH LAWS. Licensee will comply with all applicable laws and regulations in its use of the Licensed Deliverables and, in particular, Licensee will not export or re-export the Licensed Deliverables without Banner’s prior written consent, and, if such consent is granted, without Licensee first obtaining all required United States and foreign government licenses. To the extent permitted by applicable law, Licensee will defend, indemnify, and hold harmless Banner from and against any violation of such laws or regulations by Licensee or any of its agents, directors, or employees.
15. DISCLAIMER OF WARRANTY. Except as expressly set forth in these Terms, THE LICENSED DELIVERABLES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STatutory, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. LICENSEE BEARS ALL RISK RELATING TO QUALITY AND PERFORMANCE OF THE LICENSED MATERIALS AND TO THE ACCURACY AND USE OF THE INFORMATION. WITHOUT LIMITING THE FOREGOING, Banner DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE LICENSED Deliverables SHALL BE UNINTERRUPTED OR ERROR-FREE. Because some states may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to Licensee. Any warranties made in these Terms are for the benefit of Licensee only. In no event does Banner make any warranty, and Banner shall have no liability, with respect to the results or accuracy of any scan or analysis performed by Banner and/or the Licensed Deliverables with respect to the security or compliance features or status of any application.
16. LIMITATION ON LIABILITY. In no event will Banner, its suppliers, shareholders, officers, employees or agents be liable for any lost profits, indirect, incidental, special, punitive or consequential damages, including damages due to loss of data or goodwill, arising out of these Terms or the use of or reliance upon the Licensed Deliverables or Information, even if Banner has been advised of the possibility of such damages. In no event shall Banner be liable for procurement costs of substitute products or services or any unauthorized use or misuse of any Licensed Deliverables or Information, except in the case of Banner’S WILFULL MISCONDUCT with respect to such use or misuse. Licensee assumes responsibility for the installation, use and results obtained from the Licensed Deliverables. UNDER NO CIRCUMSTANCES WILL Banner’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE TO Banner DURING THE IMMEDIATELY PRECEDING THREE MONTH PERIOD (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). The parties agree that this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. Because some states may not allow the exclusion or limitation of consequential or incidental damages, such limitations may not apply to Licensee.
17. GOVERNING LAW. These Terms shall be governed by the laws of the State of Utah, U.S.A.
18. REMEDIES. Licensee agrees that the obligations of Licensee provided herein are necessary and reasonable in order to protect Banner and its business interests, and Licensee expressly agrees that monetary damages alone may be inadequate to compensate Banner for any breach by Licensee of its covenants and agreements set forth herein. Accordingly, Licensee acknowledges that the unauthorized use, transfer, or disclosure of the Licensed Deliverables or Information, or copies thereof will (a) substantially diminish the value to Banner of the proprietary interest that are the subject of these Terms; (b) render Banner’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (c) cause irreparable injury in a short period of time. If Licensee breaches any of its obligations with respect to the use the Licensed Deliverables or Information, Banner shall be entitled to equitable relief to protect its interest therein, including but not limited to, preliminary and permanent injunctive relief. For such purposes, the parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts found within the State of Utah, and they do agree that venue shall be proper in the County of Salt Lake in the State of Utah. In addition to any other remedies that may be available, in law, in equity or otherwise, Banner shall be entitled to obtain injunctive relief against the threatened breach of these Terms or the continuation of any such breach by Licensee, without the necessity of proving actual damages.
19. ATTORNEY FEES. In case of arbitration or action to enforce any rights or conditions of these Terms, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.
20. ENTIRE AGREEMENT; AMENDMENT. These Terms and the applicable Order Form together are a binding contract and constitute the entire agreement and understanding of the parties, whether oral or written, relating to the subject matter hereof; are intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous agreements, representations, communications, and understandings, whether written or oral; and may be amended or modified only by an instrument in writing signed by both parties.
21. NON-WAIVER. No waiver of any provision of these Terms shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of these Terms shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.
22. NO THIRD-PARTY BENEFICIARIES. Nothing in these Terms, express or implied, is intended to confer on any person, other than the parties to these Terms, any right or remedy of any nature whatsoever.
23. SEVERABILITY; BINDING EFFECT. If any provision of these Terms shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of these Terms shall not be impaired. These Terms shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and, to the extent permitted by Section 7, assigns.
24. FORCE MAJEURE. Banner will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond Banner’s reasonable control, so long as Banner uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
25. Notices. All notices, consents, and other communications permitted or required to be given hereunder (herein referred to as a “Notice”) shall be in writing and addressed to the appropriate party. If to Licensee, the Notice will be sent to the address provided to Banner, and if to Banner, to the address of Banner’s headquarters. Any party may change its address or email address for notification purposes by giving the other party Notice of the new address or email address and the date upon which it will become effective in accordance with the terms of this Section. A Notice shall be deemed to have been received as of the next business day in the jurisdiction of its receipt following its transmission by electronic mail.
26. Invoices. Invoices (if any) to Licensee hereunder (herein referred to as an “Invoice”) shall be in writing sent as set forth in Section 25. If sent via electronic mail or other electronic transmission, the Invoice shall be deemed to have been received as of the next business day in the jurisdiction of its receipt following its electronic transmission.
27. DEFENSE. Licensee will defend Banner from any actual or threatened third party claim arising out of or based upon Licensee’s use of the Licensed Deliverables or Licensee’s breach of any of the provisions of these Terms. Banner will: (a) give Licensee prompt written notice of the claim; (b) grant Licensee full and complete control over the defense and settlement of the claim; (c) assist Licensee with the defense and settlement of the claim as Licensee may reasonably request and at Licensee’s expense; and (d) comply with any settlement or court order made in connection with the claim.
28. INDEMNIFICATION. Licensee shall indemnify Banner against: (a) all damages, costs, and attorneys’ fees finally awarded against Banner in any proceeding under Section 27; (b) all out-of-pocket costs (including reasonable attorneys' fees) reasonably incurred by Banner in connection with the defense of such proceeding (other than when Licensee has accepted defense of such claim); and (c) if any proceeding arising under Section 27 is settled, Licensee will pay any amounts to any third party agreed to by Licensee in settlement of any such claims.
29. USE OF NAME. Banner may identify Licensee in Banner marketing materials. Licensee hereby grants Banner a non-exclusive right to use Licensee’s trademarks, logos, and other materials provided by Licensee to Banner for this purpose.
30. MUTUAL WARRANTIES. Each party represents and warrants to the other that: (a) these Terms have been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such party's execution, delivery, or performance of these Terms; and (c) the execution, delivery, and performance of these Terms does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.