This Banyan Trial Agreement (“Agreement”) is between between BanyanOps, Inc. and the company you are authorized to represent (“Customer”) and describes the terms and conditions under which Baynan offers you a trial subscription to use the Banyan Solution (defined below). BY DEPLOYING THE BANYAN APP OR AGENT OR USING THE SOLUTION OR ACCESSING THE BANYAN COMMAND CENTER, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE, DO NOT USE THE SOLUTION OR DOWNLOAD THE BANYAN APP OR BANYAN AGENT.
In consideration of the premises and the covenants set forth in this Agreement, the parties hereby agree as follows:
1.1 “Affiliate” means any legal entity that is controlled by, in control of or under common control with the relevant party, where “control” means the right to cast fifty percent (50%) or more of the votes that may be cast by virtue of ownership of stock, shares, or units of ownership or other ownership interests of the relevant entity, the right to select or elect a majority of the members of the board of directors or similar management body and/or to direct the normal operation of the entity pursuant to an agreement or contract. 1.2 “Banyan Agent(s)” are the enforcement component of the Solution and are autoscaling gateways deployed via orchestration templates (AccessTier). 1.3 “Banyan App(s)” are the client component of the Solution and are installed on Devices in order to enable secure registration, authentication and security posture validation. 1.4 “Banyan Command Center” is the management component of the Solution that is hosted by Banyan (as a software-as-a-Service offering). 1.5 “Confidential Information” means any and all non-public, confidential and proprietary information, furnished by one party to this Agreement (the “Disclosing Party”) to the other party to this Agreement (the “Receiving Party”) and relate to such Disclosing Party’s business or technology. Without limiting the generality of the foregoing, Confidential Information may include, without limitation, that which relates to patents, patent applications, trade secrets, research, product plans, products, developments, know-how, ideas, inventions, processes, design details, drawings, sketches, models, engineering, software (including source and object code), algorithms, business plans, sales and marketing plans, and financial information. Any Confidential Information disclosed in a written or other tangible form shall be clearly marked as “confidential,” “proprietary,” or words of similar import. Any Confidential Information disclosed orally shall, to the extent practicable, be identified as confidential at the time of disclosure. Notwithstanding the foregoing, Confidential Information shall expressly include the terms of this Agreement, the Solution, the Documentation and all know-how, techniques, ideas, principles and concepts which underlie any element of the Solution or the Documentation and which may be apparent by use, testing or examination. 1.6 “Customer Data” means the information pertaining to Customer’s network as collected by the Agents and processed by the Command Center (when the Command Center is provisioned as a software as a service offering by Banyan.
1.7 “Device” means any kind of electronic appliance capable of connecting to a network and processing data, including without limitation personal computers, mobile phones and tablet computers.
1.8 “Documentation” means the generally commercially available product documentation applicable to the Solution and delivered by Banyan to Customer hereunder. 1.9 “End User” means an individual that owns or operates a Device. 1.10 “Error” means an incident that investigation reveals is caused by the Solution’s failure to perform materially in accordance with the specifications set forth in the Documentation for such Solution. An incident will not be classified as an Error if (a) the relevant Solution is not used for its intended purpose; (b) the incident is caused by Customer’s or a third party’s software or equipment (except to the extent Banyan has incorporated or packaged such third party’s software or equipment in or with the Solution); or (c) the version of the Solution on which the Error has purportedly occurred is not the most current version of such Solution made available to Customer under this Agreement. 1.11 “Host” means a single server (either physical or virtual) that is owned, operated or controlled by Customer. 1.12 “Intellectual Property Right” means any of the following: (i) patents and applications for patents throughout the world, including all patent applications in preparation for filing anywhere in the world, all reissues, divisions, continuations, continuations-in-part, extensions, renewals, and reexaminations of any of the foregoing; (ii) common law and statutory trade secrets and all other confidential or proprietary information that has independent value, and all know-how; (iii) all copyrights, whether arising under statutory or common law, registered or unregistered, now or hereafter in force throughout the world; (iv) all trademarks, trade names, corporate names, company names, business names, fictitious business names, trade styles, service marks, certification marks, collective marks, logos, now existing anywhere in the world or hereafter adopted or acquired, whether currently in use or not, all registrations and records thereof and all applications in connection therewith, whether pending or in preparation for filing, all of the goodwill of the business connected with the use of the foregoing; (v) moral rights in those jurisdictions within where such rights are recognized, (vi) all other intellectual property protections recognized within any of the jurisdictions, and (vii) all proceeds of, and rights associated with, the foregoing (as appropriate to such rights), including the right to sue third parties (iv), and all rights corresponding thereto throughout the world. For the avoidance of doubt, Customer Data is the Confidential Information of Customer. 1.13 “Networked Service” means a software component deployed by the Customer on one or more Hosts that listens on a network address. A Networked Service can be registered with, and secured by, the Solution.
1.14 “Solution” means the Banyan proprietary Secure Service Mesh product offering. The Solution includes the Banyan Agents, Banyan Apps and Banyan Command Center and any updates and upgrades thereto. 1.15 “Subscription Term” means a period of sixty (60) calendar days. 1.16 “Support” means the maintenance and support services provided by Banyan for the Solution. 1.17 “Representatives” means, as to any person, such person’s affiliates and its or their directors, officers, employees, agents, and advisors (including, without limitation, financial advisors, counsel and accountants) bound by a written agreement or other legal obligation to maintain the confidentiality of the Confidential Information disclosed to them as required by the terms of Section 11.
Each Customer will need to register with Banyan and create an account. A Customer may never use another customer’s account without permission. When creating the Customer account, Customer must provide accurate and complete information. Customer is solely responsible for the activity that occurs on the Customer account and Customer must keep the account password secure. Customer must notify Banyan immediately of any breach of security or unauthorized use of the account. Banyan will not be liable for any losses caused by any unauthorized use of the account. By providing Banyan with email addresses, Customer consents to Banyan’s use of the email address to send Solution-related notices. Banyan’s direct competitors are prohibited from registering and/or accessing the Solution, except with Banyan’s prior written consent. In addition, the Solution may not be accessed for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
3. LICENSE GRANT.
3.1 License to Solution and Documentation. Subject to the terms and conditions of this Agreement, including but not limited to receipt of all applicable fees by Banyan, Banyan hereby grants to Customer, and Customer hereby accepts from Banyan, a limited, non-exclusive, non-transferable, non-assignable and non-sublicenseable license, during the Subscription Term, to use the Solution as follows: (i) deploy the Banyan App on Devices, (ii) deploy the Banyan Agents within a network infrastructure that is owned or managed by Customer in order to to manage access to Networked Services within such infrastructure, and (iii) use the Command Center to configure and monitor activity of the Solution, and in each case solely for Customer’s internal business purposes and for trial and evaluation purposes only.
3.2 Provision of Cloud Services. Banyan shall use commercially reasonable efforts to provide use of the Command Center for the Subscription Term. If Banyan determines that the security or proper function of Command Center would be compromised due to, hacking, denial of service attacks or other activities originating from or directed at Customer’s network, Banyan may immediately suspend access to the Command Center until the problem is resolved. Banyan will promptly notify and work with Customer to resolve the issues.
3.3 Banyan APIs. If the Command Center is to be provided to Customer as a software as a service offering, then Banyan will make an APIs available to Customer as part of the Solution.. Banyan reserves the right to place limits on access to such APIs (e.g., limits on numbers of calls or requests). Further, Banyan may monitor Customer’s usage of such APIs and limit the number of calls or requests Customer may make if Banyan believes that Customer’s usage is in breach of this Agreement or may negatively affect the Solution (or otherwise impose liability on Banyan).
3.4. Restrictions on Licenses. In addition to the restrictions set forth above, Customer agrees that, except as otherwise expressly provided by this Agreement, it shall not: (a) exceed the scope of the licenses granted in Section 2.1; (b) make copies of the Solution or Documentation other than as authorized in Section 2.1; (c) distribute, sublicense, assign, delegate, rent, lease, sell, time-share or otherwise transfer the benefits of, use under, or rights to, the license granted in Section 2.1, and any attempt to make any such sublicense, assignment, delegation or other transfer by Customer shall be void and of no effect; (d) reverse engineer, decompile, disassemble or otherwise attempt to learn the source code, structure or algorithms underlying the Solution, except to the extent required to be permitted under applicable law; (e) modify, translate or create derivative works of the Solution without the prior written consent of Banyan; (f) remove any copyright, trademark, patent or other proprietary notice that appears on the Solution, Documentation or copies thereof. The licenses provided by this Agreement are limited licenses, and Customer acknowledges that this Agreement does not grant Customer, and Banyan expressly disclaims the grant of, any license, immunity, or other right to or under any patent or other Intellectual Property Right of Banyan, whether directly or by implication, legal or equitable estoppel, exhaustion or otherwise, except for the limited licenses expressly set forth in this Section 3.
4. CUSTOMER OBLIGATIONS.
Except as otherwise expressly provided herein, Customer shall: (a) inform Banyan of any Errors, complaints or problems encountered during Customer’s use of the Solution or Documentation of which Customer becomes aware and any resolutions by Customer of such Errors, complaints and problems, in accordance with the provisions of the Support terms set forth in Exhibit B; and (b) comply with all applicable laws and regulations with respect to Customer’s use of the Solution.
The Solution and Documentation are licensed and not sold to Customer. Banyan and its licensors own and retain all right, title and interest in the Solution and Documentation, any design changes, improvements, enhancements, derivative works, or modifications thereof or thereto, and any related and/or associated Intellectual Property Rights, whether developed by Banyan or by Customer or its employees or independent contractors.
6.1 Maintenance and Support Services. Banyan shall provide Support for the Solution as set forth at www.banyanops.com/legal/support/ (“Support”). Banyan shall have no obligation to provide Support for any Solution that has been modified by Customer or a third party at Customer’s direction, except as otherwise agreed by Banyan in writing.
The trial license under this Agreement shall be at no charge to Customer.
The term of this Agreement shall commence on the date the Customer accepts this Agreement and shall remain in effect for sixty (60) days.
9.1 Termination. This Agreement and the licenses granted hereunder may be terminated by either party at any time by providing notice to the other party.
9.2 Effect of Termination. Upon any expiration or termination of this Agreement, the license granted in Section 2 shall terminate immediately, and Customer shall (i) immediately cease use of all Solution and Documentation, and (ii) return to Banyan or destroy and uninstall all Solution and related Documentation and other materials and information provided by Banyan and any copies thereof made by Customer. Upon request, Customer shall certify to Banyan in writing that it has retained no copies of such Solution, Documentation, materials or information.
10. DISCLAIMER OF WARRANTY.
Banyan does not represent or warrant that the operation of the Solution (or any portion thereof) will be uninterrupted or error free, or that the Solution (or any portion thereof) will operate in combination with other hardware, software, systems or data not provided by Banyan, except as expressly specified in the applicable Documentation. Banyan does not provide assistance on the general use of the Solution or problem diagnosis if Customer is not receiving Support or is not current in its payment obligations. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 10, BANYAN MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SOLUTION OR SUPPORT OR PROFESSIONAL SERVICES, OR THEIR CONDITION. BANYAN IS FURNISHING THE WARRANTIES SET FORTH IN SECTION 10 IN LIEU OF, AND BANYAN HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.
11. LIMITATION OF LIABILITY.
IN NO EVENT SHALL BANYAN BE LIABLE IN AN ACTION UNDER TORT, CONTRACT, WARRANTY OR OTHERWISE FOR ANY: (A) SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE/EXEMPLARY DAMAGES OR LOSSES ARISING FROM OR RELATED TO A BREACH OF THIS AGREEMENT, THE OPERATION OR USE OF THE SOLUTION, OR SUPORT OR ANY PROFESSIONAL SERVICES PERFORMED HEREUNDER, INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES OR LOSSES ARISING FROM (I) LOSS OF BUSINESS, PROFIT OR REVENUES, (II) LOSS OF DATA, PROGRAMMING OR CONTENT, (III) FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, (IV) SUBSTITUTE PROCUREMENT, OR (V) DAMAGE TO EQUIPMENT, INCURRED BY CUSTOMER OR ANY THIRD PARTY, EVEN IF BANYAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR IF SUCH DAMAGES OR LOSSES ARE FORESEEABLE; OR (B) DAMAGES OR LOSSES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE BY BANYAN TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND BANYAN’S REASONABLE CONTROL.NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. IN NO EVENT SHALL BANYAN’S TOTAL LIABILITY TO CUSTOMER FOR DAMAGES OR LOSSES OF ANY KIND EXCEED, EITHER CUMULATIVELY OR IN THE AGGREGATE, $1000.
Unless otherwise agreed to in writing by the Disclosing Party, each Receiving Party agrees (a) to keep all Confidential Information in strict confidence and not to disclose or reveal any Confidential Information to any person (other than such Receiving Party’s Representatives who (i) are actively and directly involved in providing or receiving products or services under this Agreement, and (ii) have a need to know the Confidential Information), and (b) not to use Confidential Information for any purpose other than in connection with fulfilling obligations or exercising rights under this Agreement. The Receiving Party shall treat all Confidential Information of the Disclosing Party by using the same degree of care, but no less than a reasonable degree of care, as it accords its own Confidential Information. The parties agree to cause their Representatives who receive Confidential Information to observe the requirements applicable to the Receiving Party pursuant to this Agreement with respect to such information, including, but not limited to, the restrictions on use and disclosure of such information contained herein. Notwithstanding the above, the obligations of the parties set forth herein shall not apply to any information that: was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Receiving Party or any of its Representatives; was known to the Receiving Party free of any obligation of confidentiality before or after the time it was communicated to the Receiving Party by the Disclosing Party; is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; is disclosed with the prior written approval of the Disclosing Party; is or becomes available to the Receiving Party on a non-confidential basis from a person other than the Disclosing Party or any of its Representatives who is not known by the Receiving Party to be otherwise bound by a confidentiality agreement with the Disclosing Party or any of its Representatives or to be under an obligation to the Disclosing Party or any of its Representatives not to transmit the information to the Receiving Party; or is disclosed pursuant to an order or requirement of a court, administrative agency or other governmental body; provided however, that the Receiving Party shall provide prompt written notice of such court order or requirement to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure, and shall use reasonable efforts to cooperate with the Disclosing Party (at the Disclosing Party’s expense) to obtain such protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, or the Disclosing Party waives compliance in whole or in part, with the terms of this Agreement, the Receiving Party and its Representatives shall use reasonable efforts to disclose only that portion of the Confidential Information that is legally required to be disclosed or is the subject of such waiver, and to ensure that all Confidential Information that is so disclosed shall be accorded confidential treatment. Any materials or documents which have been furnished to the Receiving Party from the Disclosing Party shall be promptly returned or destroyed, at the option of the Disclosing Party, by the Receiving Party, within ten (10) days after (a) this Agreement has expired or has been terminated; or (b) a written notice is made by the Disclosing Party requesting such return or destruction. Upon such request, all copies, reproductions, compilations, summaries, analyses, or other documents containing or reflecting the Receiving Party’s or its Representatives’ use of the Confidential Information will be destroyed by the Receiving Party, and such destruction confirmed to the Disclosing Party in writing. The terms and obligations pertaining to confidentiality in this Agreement shall survive and remain in full force and effect for a period of five (5) years from the termination or expiration of this Agreement, unless the Disclosing Party expressly agrees in writing to release all or part of its Confidential Information from the restrictions imposed by this Agreement before such period has elapsed.
13.1 Use of Name for Marketing Purpose. Customer agrees that during the Subscription Term, Banyan shall be authorized to make reference to Customer as a Customer of the Solution. 13.2 Notices. All notices, summons and communications related to this Agreement and sent by either party hereto to the other shall be written in English and given by registered mail, internationally recognized overnight courier or by facsimile also confirmed by registered or certified mail, postage prepaid: for Banyan: 300 Brannan St. #409, San Francisco, CA 94107 and for Customer it will be the information provided when Customer registered.
13.3 Assignment. Neither party shall transfer or assign this Agreement or any of its rights or obligations hereunder, the Solution or any component thereof, or any other materials provided hereunder, to any other person or entity, whether by written agreement, operation of law or otherwise, without the prior written consent of the other party, which consent may be withheld for any reason whatsoever, as determined by such party in its sole discretion. Any purported assignment or transfer by Customer without a party’s prior written consent shall be void and of no effect. Notwithstanding the foregoing, either party may freely assign this Agreement, or delegate obligations under this Agreement, without the prior written consent of the other party in connection with a merger, acquisition, change in control, or sale of substantially all the assets with respect to the subject of this Agreement. Subject to the foregoing, any permitted assignment or transfer of or under this Agreement shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the assigning or transferring party hereto.
13.4 Survival. Sections 3.4, 5, 9.2, and 10-13 shall survive the expiration or termination of this Agreement, or any default under or rejection in bankruptcy of this Agreement by Customer.
13.5 Governing Law; Jurisdiction. This Agreement and all matters relating to this Agreement shall be construed in accordance with and controlled by the laws of the State of California, without reference to its conflict of law principles. The parties agree to submit to the non-exclusive jurisdiction and venue of the courts located in San Francisco, California and hereby waive any objections to the jurisdiction and venue of such courts.
13.6 No Agency; Independent Contractors. In connection with this Agreement each party is an independent contractor and as such will not have any authority to bind or commit the other. Furthermore, neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture or agency relationship or as granting a franchise.
13.7 Export Control; Privacy Laws. (a) Export Control. The Solution, the Documentation and all other technical information delivered hereunder (collectively, “Technical Data”) include technology and software and are subject to the export control laws and regulations of the United States (“U.S.”). Customer agrees not to export, re-export or otherwise release any Solution outside of the U.S. and to abide by such laws and regulations as to which Banyan may notify Customer from time to time. Customer further acknowledges and agrees that the Technical Data may also be subject to the export laws and regulations of the country in which the products are received, and that Customer will abide by such laws and regulations. (b) Privacy Laws. Customer shall comply with all applicable privacy laws and regulations in its use of any Solution and Documentation, including without limitation the unlawful gathering or collecting, or assisting in the gathering or collecting of information in violation of any such privacy laws or regulations. Customer shall, at its own expense, defend, indemnify and hold harmless Banyan from and against any and all claims, losses, liabilities, damages, judgments, government or federal sanctions, costs and expenses (including attorneys’ fees) incurred by Banyan arising from any claim or assertion by any third party of violation of privacy laws or regulations by Customer or any of its agents, officers, directors or employees. Customer acknowledges and agrees that no personally identifiable information shall be provided to Banyan during the provision and operation of the Solution.
13.8 Force Majeure. Neither party shall be liable for failure to perform any of its obligations under this Agreement (except payment obligations) during any period in which such party cannot perform due to fire, earthquake, flood, any other natural disaster, epidemic, accident, explosion, casualty, strike, lockout, labor controversy, war, embargo, riot, civil disturbance, act of public enemy, act of nature, the intervention of any government authority, any failure or delay of any transportation, power, or for any other similar cause beyond either party’s control. In the case of failure to perform, the failing party shall promptly notify the other party in writing of the reason for and the likely duration of the failure. The performance of the failing party’s obligations shall be suspended during the period that the cause persists, and each party shall use commercially reasonable efforts to avoid the effect of that cause.
13.9 Severability and Waiver. To the extent that any term, condition or provision of this Agreement is held to be invalid, illegal or otherwise unenforceable under applicable law, then such term, condition or provision shall be deemed amended only to the extent necessary to render such term, condition or provision enforceable under applicable law, preserving to the fullest extent possible the intent and agreements of the parties set forth herein; in the event that such term, condition or provision cannot be so amended as to be enforceable under applicable law, then such term, condition or provision shall be deemed excluded from this Agreement and the other terms, conditions and provisions hereof shall remain in full force and effect as if such unenforceable term, condition or provision had not been included herein. The failure of a party to prosecute its rights with respect to a default or breach hereunder shall not constitute a waiver of the right to enforce its rights with respect to the same or any other breach.
13.10 Entire Agreement; Amendment. This Agreement and all Exhibits referred to herein embody the entire understanding of the parties with respect to the subject matter hereof and shall supersede all previous communications, representations or understandings, either oral or written, between the parties relating to the subject matter hereof. It shall not be modified except by a written agreement signed on behalf of Customer and Banyan by their respective duly authorized representatives. Customer acknowledges that it is entering into this Agreement solely on the basis of the agreements and representations contained herein, and for its own purposes and not for the benefit of any third party. It is expressly agreed that the terms of this Agreement and its Exhibits shall supersede the terms in any purchase order or other ordering document. Each Exhibit to this Agreement shall be governed by the terms of this Agreement and the terms set forth therein. In the event of any inconsistency between the terms of this Agreement and the terms of the Exhibit, the terms of the Exhibit shall govern that Exhibit except as otherwise stated therein. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.