End-User License Agreement

 
SOFTWARE LICENSE AND MAINTENANCE AGREEMENT FOR BINARY TREE SOFTWARE
 
 
IMPORTANT -- READ THIS AGREEMENT CAREFULLY BEFORE INSTALLING THE SOFTWARE.  This is a legally binding agreement ("Agreement") between you ("Licensee") and BinaryTree.com, a Delaware corporation ("BT").  This Agreement contains the only terms and conditions applicable to the parties' respective rights and obligations with respect to the software product and documentation of BT that is licensed to you under this Agreement (the "Software"), this Software is downloaded from BT's FTP Server or delivered directly to Licensee via an external drive or similar device.  Installing the Software indicates your acceptance of this Agreement.  If you do not agree to the terms of this Agreement, you have no right to install or use the Software and you must return it to BT.
 
1.         License Grant.  In consideration of Licensee's payment, upon delivery of the Software, of all fees specified by BT for the Software (the "License Fees"), BT hereby grants Licensee a perpetual non-exclusive and non-transferable right and license to install, use, and execute the Software during the term of this Agreement and in accordance with the terms and conditions of this Agreement.  Licensee acknowledges and agrees that the License Fees are based on, and the license granted under this Section 1 is limited to use of a single mailbox or object for a single user on a single computer or within a directory environment (the "Authorized Users").  Licensee further agrees that it shall be obligated to pay additional License Fees for a license to use the Software for any mailboxes, users, objects, processors, servers, directories, web sites, portal sites, intranet sites (as applicable) above the number of Authorized Users.  The term of this Agreement shall commence upon the earlier of the delivery, installation or first use of the Software and shall continue until the earlier of its expiration or termination in accordance with the terms set forth herein.  Except as required to permit the use of the Software by the Authorized Users, Licensee shall have the right to make only one (1) copy of the Software for backup and archival purposes.  All copies of the Software made by Licensee shall contain all titles, trademarks, and copyright and restricted rights notices included in the original.  This license shall terminate upon the earlier of the first date on which Licensee fails to pay all License Fees when due, transfers the Software or any part thereof to a third party, or violates any other provision of this Agreement.  Upon the expiration or termination of this Agreement for any reason, Licensee shall immediately cease all use of the Software and shall promptly return to BT all copies of the Software in Licensee's possession.
 
2.         License Restrictions and Exclusions.  Licensee acknowledges and agrees that the Software is a work for purposes of copyright law, and embodies valuable, confidential, trade secret information of BT, the development of which required the expenditure of substantial time and money.  BT shall retain all right, title, and interest, including all copyright and other proprietary rights, in and to the Software and all copies thereof.  Licensee shall not acquire any rights, express or implied, in the Software other than those specified in this Agreement.  Licensee may use the Software solely in object code form and only for Licensee's internal business purposes.  Licensee shall not sub-license, lease, rent, assign, encumber, distribute or otherwise transfer or disclose the Software to any third party.  In addition, Licensee shall not modify, prepare derivative works of, reverse engineer, disassemble, or reverse compile the Software or any portion thereof, nor shall Licensee cause or permit a third party to do any of the foregoing. BT has the right to terminate this License agreement and the Licensee’s right to use this software upon a material breach of this license.
 
3.         Enhancement Requests.  BT will consider Licensee's suggestions or requests regarding new functionality or features of the Software ("Enhancement Requests").  All modifications proposed or requested in an Enhancement Request shall be the sole and exclusive property of BT.  BT may, in its sole discretion include such modifications in a future version of the Software, but BT's acceptance and consideration of an Enhancement Request shall not obligate BT to include in any version of the Software any modifications proposed or requested in such Enhancement Request.
 
4.         Support Services.  Binary Tree will provide standard support for issues with the basic functionality of the software 24 hours a day, 7 days a week, 365 days a year via email and an online request form on our website.  To have access to product experts Binary Tree offers advanced support through the purchase of a support plan.
 
5.          Support Plan. If the issue reported requires advanced support then the customer must have purchased a valid Binary Tree support plan, which allows access to our team of product experts. The support plan will become active the first time the customer contacts Binary Tree support. A support plan is required to resolve a customer issue with using, configuring, or understanding the software. With any support encounter, the customer may be required to update to the latest version of the software, as this may already contain a resolution to their issue. The customer must be current on software maintenance to have access to the latest version of the software. When a customer reports an issues relating to the software, Binary Tree support will provide assistance towards a solution. When a customer reports an environmental issue relating to their operating system, infrastructure, or general platform questions (not related to the software), Binary Tree support has the option of helping the customer. When a customer reports an issue related to the software that is determined to be a software defect, Binary Tree will use commercially reasonable efforts to provide a software fix for the customer in a timely manner that will correct the defect in future uses of the software. The software fix is not intended to fix previously completed uses of the software. When a customer issue spans multiple encounters with Binary Tree support, this will be considered one Binary Tree support case, as it all relates to the same core issue. When a customer reports multiple issues, they should be reported and tracked as separate cases. Binary Tree support, at its discretion, may group similar issues if their resolution all has the same course of action. During the process of resolving a case, a Binary Tree software developer or consultant may be brought in to assist. This is at the discretion of Binary Tree support, and not able to be requested by the customer. All contact related to a support case is to be directed to the Binary Tree support engineer, and not the additional resources. Binary Tree support does not support any customized code written by customer outside of or within the Binary Tree software. Binary Tree support will determine if a customer issue involves customized code. Binary Tree support will notify the client, and convey the custom code issue to our consulting service practice. Our consulting practice will then work with the customer for approval to debug and develop a solution for their issue at an hourly consulting rate.
 
6.         Limited Warranty.   BT warrants that as long as the Licensee has a valid maintenance agreement and the Utilized software version is supported by BT that the software will perform substantially in accordance with the documentation. BT does not warrant that the Software will meet Licensee's requirements or that Licensee's use of the Software will be uninterrupted or error-free. 
 
7.         Disclaimer of Warranties; Exclusions.  THE WARRANTIES SET FORTH IN SECTION 6 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES REGARDING THE SOFTWARE.  BT EXPRESSLY DISCLAIMS TO THE FULLEST EXTENT PERMITTED BY LAW ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  In addition, BT shall have no obligation or other liability with regard to any error or non-compliance with a warranty that is caused by:  (i) modifications to the Software made by any party other than BT, its employees, agents or affiliates; (ii) use of the Software installed in a hardware or operating environment not supported by BT; (iii) a malfunction of hardware or other equipment; (iv) hardware, software or other products not provided by BT; or (v) the negligence, misuse or improper use of the Software by Licensee or any third party. All software sales are final and non-refundable.
 
8.         Indemnification.  BT shall indemnify, defend and hold harmless Licensee from and against all actions, costs, expenses, legal fees, damages and other liabilities arising from any claim that the Software infringes a third party's U.S. patent, copyright, trademark or trade secret, provided that Licensee:  (i) promptly notifies BT of any such claim, (ii) permits BT to control the defense or settlement of such claim, at BT's expense, and (iii) provides BT with all reasonable authority, assistance, and cooperation necessary for the defense or settlement of such claim.  If Licensee is enjoined from using the Software due to a third party infringement claim, BT shall, in its sole discretion:  (i) replace or modify the infringing Software, at no additional charge, so that it is non-infringing; (ii) obtain, at BT's expense, a license for Licensee to use the Software; or (iii) terminate Licensee's right to use the infringing Software, and, upon receipt of such Software, refund a prorated portion of the License Fees paid by Licensee for the unused portion of the then current term of the infringing Software.  BT shall have no liability to indemnify or defend Licensee to the extent the alleged infringement is based on:  (a) a modification of the Software by anyone other than BT or its affiliates; (b) use of a previous version of the Software where the infringement could have been avoided by using the latest version; or (c) use of the Software other than in accordance with the terms and conditions of this Agreement.  This Section 7 sets forth the sole and exclusive obligation of BT with regard to third party claims related to the Software.
 
9.         Limitation of Liability.  EXCEPT FOR LICENSEE'S BREACH OR INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR OTHER PROPRIETARY RIGHTS OF BT, TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR REVENUES, LOSS OF PRODUCTION OR USE, DOWN-TIME, OR LOSS OF SAVINGS OR DATA, REGARDLESS OF THE NATURE OF THE CLAIM GIVING RISE TO SUCH DAMAGES, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), AND EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  BT's aggregate and cumulative liability for damages hereunder shall in no event exceed one hundred thousand U.S. dollars ($100,000) or the amount of the License Fees paid by Licensee; whichever is less for the current term for the Software giving rise to the claim.
 
10.       Maintenance.  For so long as Binary Tree generally maintains and supports the software for its customers, BT will provide licensee with on-going maintenance of the software so long as licensee pays BT the maintenance fee equal to 20% of the then current price of a license for the software for the applicable term.  Maintenance includes access to the latest version of the Binary Tree software containing product improvements and enhancements. Renewing your maintenance does not give you access to advanced support. BT includes standard support for issues with the basic functionality of the software with the purchase of our products. Advanced support which gives you access to our product experts must be purchased separately through a Binary Tree support plan. Licensee agrees that the determination of the extent support required shall rest exclusively with BT and that BT is not required to correct every error or problem licensee may have with the software. Support does not cover hardware, operating system, network or third party software. Any troubleshooting by BT in relation to such items will, with prior notice to licensee, be considered consulting services and be charged for and treated in accordance with BT’s consulting services policies. Maintenance will be provided only for the latest release of the licensee’s version of the software, and may but need not be provided if licensee has modified the software or if licensee is in default of this agreement. Licensee shall have the sole and exclusive responsibility to provide support to any authorized end user.
 
11.       Trademarks.  Licensee acknowledges and agrees that this Agreement does not convey to Licensee any right, title or interest in or to any trademarks or trade names of BT or its affiliates.  Licensee shall not use or attempt to register any trademarks or trade names of BT or its affiliates, or any trademarks or trade names confusingly similar thereto. 
 
12.       Successors. This agreement will be binding upon and will inure to the benefit and terms stated to the parties hereto and their respective representatives, successors and assigns except as otherwise provided herein.
 
13.       U.S. Government.  If the Software is acquired by the U.S. Government or on its behalf, the Software constitutes "commercial computer software" within the meaning of FAR 2.101 and DFAR 252.227-7014(a)(1).  All rights not expressly granted hereunder are reserved to BT.
 
14.       Compliance with Laws. Licensee agrees to comply fully with all applicable export laws and regulations of the United States.  Without limiting the generality of the preceding sentence, Licensee shall not export the Software, directly or indirectly, in violation of such export laws and regulations or use the Software for any purposes prohibited by such laws and regulations.
 
15.       General.  This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey without regard to choice of law principles.  The parties agree that venue for all litigation or other proceedings arising under or related to this Agreement shall be in the federal or state courts located in New Jersey.  Except for actions for non-payment of the License Fees, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action occurred.  Except for Licensee’s obligation to pay the License Fees, neither party shall be liable for any failure to perform due to causes beyond its reasonable control.  If any provision of this Agreement is held to be unenforceable, such term or provision shall not affect the other provisions of this Agreement, and such provision shall be deemed modified to the extent necessary to render it enforceable.  The failure by a party to exercise any right under this Agreement shall not operate as a waiver of such party's right to exercise such right or any other right in the future.  The section headings herein are provided for convenience only and shall have no substantive effect on the construction of this Agreement.  No provision of this Agreement shall be construed in favor of or against a party solely for the reason that such party drafted the provision.
 
16.       This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof, and it replaces and supersedes any prior verbal or written understandings, agreements, representations and other communications between the parties regarding such subject matter.  No waiver, modification or amendment of any provision of this Agreement shall be valid or of enforceable unless it is set forth in writing signed by the duly authorized representatives of both parties.  In the event of a conflict between this Agreement and any other agreement between BT and Licensee, the terms and conditions of this Agreement shall take precedence with regard to the parties' respective rights and obligations with respect to the Software.  Licensee shall not assign any of its rights or delegate any of its duties under this Agreement to any third party without the prior written consent of BT.  All notices required to be sent under this Agreement shall be in writing and sent to BT at 3088 Route 27 Kendall Park, New Jersey 08824 or to Licensee at its address provided to BT in connection with this Agreement.  Either party may change its address to which notice should be given at any time and from time to time by giving notice to the other party (in the manner set forth herein) of such new address.  Each party is an independent contractor and neither party has the authority to bind, represent or commit the other to any obligation.  Nothing in this Agreement shall be deemed or construed to create a joint venture, partnership or agency relationship between the parties.