SDK LICENSE AND SERVICES AGREEMENT
IMPORTANT – PLEASE READ CAREFULLY THE TERMS OF THIS LICENSE AND SERVICES AGREEMENT (“AGREEMENT”). BY INSTALLING, ACCESSING AND/OR USING BINAH’S PRODUCT AND/OR THE SUPPORTING SERVICES (AS DEFINED BELOW), YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU, OR THE COMPANY YOU REPRESENT (“YOU” OR “CUSTOMER”) ARE ENTERING INTO A LEGAL AGREEMENT WITH BINAH (AS DEFINED BELOW), AND HAVE UNDERSTOOD AND AGREE TO COMPLY WITH, AND BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT. DO NOT INSTALL OR USE THE PRODUCT UNTIL YOU HAVE CAREFULLY READ, UNDERSTOOD AND ACKNOWLEDGES THESE TERMS. FURTHERMORE, YOU HEREBY WAIVE ANY RIGHTS OR REQUIREMENTS UNDER ANY LAWS OR REGULATIONS IN ANY JURISDICTION WHICH REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.
YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE PRODUCT TO ACHIEVE YOUR INTENDED PURPOSES AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM THE PRODUCT.
YOU ARE ENTERING INTO THIS AGREEMENT WITH BINAH’S FOLLOWING ENTITY, BASED ON YOUR LOCATION: (I) WITH BINAH. AI INC., IF YOU ARE LOCATED IN THE AMERICAS; OR (II) WITH BINAH. AI LTD., IF YOU ARE LOCATED IN THE REST OF THE WORLD (EACH OF BINAH. AI INC. AND BINAH. AI LTD. SHALL BE REFERRED HEREIN AS “BINAH”).
IF YOU HAVE PURCHASED THE LICENSE GRANTED HEREUNDER FROM A PARTNER, RESELLER OR DISTRIBUTOR AUTHORIZED BY BINAH (“PARTNER”), TO THE EXTENT THERE IS ANY CONFLICT BETWEEN THIS AGREEMENT AND THE AGREEMENT ENTERED BETWEEN YOU AND THE RESPECTIVE PARTNER, INCLUDING ANY PURCHASE ORDER (COLLECTIVELY “PARTNER AGREEMENT”), THEN, AS BETWEEN YOU AND BINAH, THIS AGREEMENT SHALL PREVAIL. ANY RIGHTS GRANTED TO YOU IN SUCH PARTNER AGREEMENT WHICH ARE NOT CONTAINED IN THIS AGREEMENT, APPLY ONLY IN CONNECTION WITH THE PARTNER. IN THAT CASE, YOU MUST SEEK REDRESS OR REALIZATION OR ENFORCEMENT OF SUCH RIGHTS SOLELY WITH THE PARTNER AND NOT BINAH.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN THE EVENT THAT YOU ENTER INTO A SIGNED LICENSE AND SERVICE AGREEMENT WITH BINAH FOR THE PRODUCT AND/OR THE SUPPORT SERVICES (AS DEFINED BELOW), THE SIGNED LICENSE AND SERVICES AGREEMENT SHALL SUPERSEDE AND PREVAIL THIS AGREEMENT.
This Agreement is entered into by and between Binah and Customer, to govern parties’ relationship regarding Customer use of Binah’s software, in object code form, along with, if applicable, Updates (as defined in the Support Agreement attached hereto as Exhibit A) (collectively, the “Software”) and all related documentation of Binah with respect to the Software (the “Documentation”, and together with the Software, referred to collectively as the “Product”), all as identified in the Order Form or the Partner Agreement, as applicable and as further described herein.
“Non-Binah Application” means a web-based, mobile, offline or other software application functionality that interoperates with the Product, and is provided by Customer, User or a third-party.
“Order Form” means Binah’s written order accepted in writing by the Customer or the Partner, as applicable, to include all commercial details including amount of Users and/or Sessions.
“Session” means, each a single scan that can be operated by a User through the Product.
“User” means any individual who is authorized by Customer to use the Product, and have been supplied a user identification and password by Customer or on Customer’s behalf. Users may include, for example, employees, consultants, contractors, customers and agents of Customer.
2. Subscription to Product.
Subject to Customer’s payment of the applicable Subscription Fees (as defined in Section 6 below), and strictly in accordance with the terms and conditions of this Agreement, Binah grants Customer, solely for the Customer’s business operations (including for the purpose of integrating the Software into Customer’s application), with a limited, non-exclusive, non-transferable license to install, execute, display and otherwise use the Product in the quantities and environments of Users and Sessions, as applicable and as identified in the Order Form or the Partner Agreement, as applicable, during the corresponding subscription period (the “License“).
Customer shall have no right and will not, nor will it authorize or assist others, directly or indirectly to: (a) attempt to copy, modify, duplicate, or imitate all or any portion of the Product and/or the Documentation, in any form or media or by any means, other than internal usage (testing, staging, etc.);; and/or (b) attempt to disassemble, reverse engineer, modify, translate, alter or decompile all or any portion of the Software or otherwise attempt to discover the source code of all or any portion of the Software except and solely to the extent permitted under applicable law notwithstanding this restriction; and/or (c) attempt to distribute, rent, lease, sublicense, assign, transmit or sell all or any portion of the Product (other than as part of any application that was developed by the Customer) or any of Customer’s rights therein, to any third-party, except such copying and transfer as expressly permitted under this Agreement; and/or (d) use Binah’s name, logo or trademarks without prior written consent from Binah; and/ or (e) publish the results of any comparisons or other benchmarking activities that Customer will conduct with the Software, either alone or in connection with any other software or hardware without the prior written consent of Binah; and/or (f) publish reviews of the Software without the prior written consent of Binah.
4. Customer’s Obligations.
Without derogating from any other obligation of Customer pursuant to this Agreement, Customer will: (a) use the Software only in accordance with this Agreement, Documentation and applicable laws and government regulations and guidelines; (b) be responsible for Users’ compliance with this Agreement and Documentation; and (c) use commercially reasonable efforts to prevent unauthorized access to, or use of the Product and notify Binah promptly of any such unauthorized access or use; (d) to the extent required, obtain and maintain all necessary systems and network requirements according to the provisions of the Documentation and maintain all consents, and permissions necessary for the Customer to be able to use the Product hereunder; (e) be solely liable for problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Customer’s network connections or telecommunications links; (f) be solely responsible for the interoperation of any Non-Binah Applications with which Customer uses the Product; and (g) refer and/or represent and/or attribute to the Product with respect to any on-line application store unless received a prior written approval by Binah.
Binah reserves the right, at its sole discretion without liability to Customer, to disable, suspend or terminate the License herein and Customer’s access to the Product, in the event of any breach by Customer or anyone on its behalf of the provisions of Sections 3 and 4, which was not cured within 14 days following receipt of written notice from Binah, which and be deemed a material breach of this Agreement. For the avoidance of doubt, termination of this Agreement due to breach of the Agreement by Customer as aforesaid shall not relieve Customer from its payment obligations due under this Agreement.
5. Proprietary Rights.
Customer acknowledges and agrees that the Product contains proprietary and trade secret information of Binah or its licensors. Other than the limited rights granted to Customer (under Section 2 above), Binah and its suppliers, if any, retain all ownership and proprietary rights in and to all or any portion of the Product, including any and all copies made by Customer and any and all Updates, if applicable.
If Customer contacts Binah with feedback data (e.g., questions, comments, suggestions, improvement or the like) regarding the Product (collectively, “Information”), then Customer shall be deemed to irrevocably assign to Binah any rights that the Customer may have or acquire in such Information, and Binah shall be the sole and exclusive owner of all rights in connection with any and all such Information.
6. Pricing and Payment.
In consideration for the subscription of the Product, Customer shall pay the subscription fees specified in the Order Form or the Partner Agreement, as applicable (“Subscription Fees”), at such times and for such periods as set forth therein. Unless stated otherwise under the Order Form or the Partner Agreement, as applicable, all fees shall be due and payable within thirty (30) days of the date of invoice (“Agreed Payment Terms”). Customer shall effect payment of all fees by wire transfer. If Customer or Partner, as applicable, has failed to pay Binah within the Agreed Payment Terms and is late in seven (7) days or more, following the applicable due date, without prejudice to any other rights and remedies available to Binah under any applicable law, and without any liability toward Customer, Binah may, at its sole discretion, disable, suspend or terminate the Customer’s (and/or anyone on its behalf, to the extent permitted hereunder) access to all or part of the Product and the Support Services and the License herein, and Binah shall be under no obligation to provide any or all part of the Product, including without limitation, Support Services, Users or Sessions, as applicable, while the invoice(s) concerned remain unpaid. Payment received by Binah after the due date shall be subject to a late fee equal to one and one-half percent (1.5%) per month or, if less, the maximum amount allowed by applicable law. All amounts payable hereunder shall not be subject to any set-off or deduction. All fees are exclusive of any applicable taxes, duties and similar governmental charges, and Customer (or Partner, as applicable) is responsible for payment of all such amounts, including sales tax, value added tax (VAT), withholding taxes, export, import and other duties imposed by any governmental agency in connection with this Agreement. Customer agrees to hold harmless Binah from all claims and liability arising from Customer’s failure to report or pay such taxes, duties or other governmental charges.
7. Support Services.
The Subscription Fees includes support and maintenance (“Support Services”) as specified in Exhibit A, during the Term. The Subscription Fee does not include, however, any configuration, integration, customization or other services with respect to the Software for use by Customer in Customer’s system or in accordance with Customer’s requirements or specifications.
8. Limited Warranties; Disclaimer of Warranties.
8.1. THE PRODUCT IS PROVIDED BY BINAH TO CUSTOMER “AS IS”, AND BINAH AND ITS SUPPLIERS, IF ANY, MAKE NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE PRODUCT AND SPECIFICALLY DISCLAIM THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT POSSIBLE BY LAW. BINAH DOES NOT WARRANT THAT THE PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE..
8.2. Without derogating from the aforesaid, Binah makes no warranty regarding the accuracy and completeness of any statistics, parameters, data or information monitored and/or displayed through the Product (“Analysis”). The Product and the Analysis are not intended to diagnose, treat, monitor, cure or prevent, any disease and are not intended to match or replace (a) any services or information produced by medical or scientific measurement devices; and/or (b) any diagnosis, advise and/or prescription by physicians; and/or (c) any other services or treatments by physicians and other medical care professionals.
Binah does not accept liability for any error or omission, injury, expense, loss (including, without limitation, loss of the Analysis) or damage caused, in whole or in part, by Customer or any other third party’s actions, omissions, or negligence.
Further, without derogating from the aforementioned, Customer acknowledges that the Product may be impaired or produce inaccurate or incorrect output, including without limitation, the Analysis, due to, without limitation (a) the provision by Customer or its Users of incorrect details; and/or (b) use of the Product’s version when it is not updated with the last available Update.
8.3. Customer is solely responsible for proper configuration of all hardware and other equipment and all databases and other software used with the Software.
8.4. Binah disclaims any warranties or representations provided or made to Customer by any Partner. Such warranties and representations are the sole responsibility of such Partner.
9. Intellectual Property Indemnity By Binah.
9.1. Subject to Section 9.2 below, Binah will defend, indemnify, and hold harmless Customer from and against any claims or actions (“Claim”) brought or made by a third-party against Customer and from all damages, costs and expenses arising in connection therewith, and will pay any settlements agreed to by Binah or judgments finally awarded against Customer in favor of the third party resulting from such Claim, to the extent based upon any Claim that the Software infringes any valid patent, copyright or trade secret, provided that Customer: (a) as promptly as reasonably practicable notifies Binah in writing of any such claim; (b) gives Binah full authority and control of the settlement and defense of the claim; and (c) fully cooperates with Binah in the defense of such claims, including providing adequate assistance and information, at Binah’ expense.
9.2. Binah will have no obligation to Customer to the extent that any Claim arises from: (a) any modification to the Product by anyone other than Binah; (b) Binah’s compliance with any materials, designs, specifications or instructions provided by Customer; (c) use of the Software other than as specified in this Agreement or in the applicable Documentation; (d) use of prior versions of the Product after an Update has been provided by Binah to Customer; or (e) use of the Software in combination with third-party software, hardware or data. Binah’s indemnification obligations regarding any third-party products are limited to the extent Binah is indemnified by such third parties.
9.3. If a Claim arises, or in Binah’s opinion is likely to arise, Binah may at its own expense obtain for Customer the right to continue using the Product, modify the Product to make it non-infringing, or substitute at no additional cost with other product of substantially similar capability and functionality. If none of these options are reasonably available to Binah, Binah or Customer may terminate this Agreement with Binah to refund to Customer the prorated portion of the Subscription Fees paid for the affected Product.
THIS SECTION 9 STATES THE ENTIRE OBLIGATION OF BINAH AND THE SOLE AND EXCLUSIVE REMEDIES OF CUSTOMER WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR PROPRIETARY RIGHTS VIOLATIONS.
10. Limitation of Liability.
EXCEPT FOR BINAH’S THIRD-PARTY INDEMNIFICATION OBLIGATIONS UNDER SECTION 9, IN NO EVENT SHALL BINAH BE LIABLE TO THE OTHER, WHETHER IN TORT, CONTRACT OR OTHERWISE, FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND LOSS OF GOODWILL AND/OR SIMILAR LOSSES), EVEN IF BINAH HAS BEEN ADVISED OF THE POSSI¬BILITY OF SUCH DAMAGES.
IN NO EVENT SHALL BINAH’S ENTIRE LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES FROM ANY CAUSE WHATSOEVER, REGARDLESS OF FORM OR ACTION, WHETHER IN CONTRACT, NEGLIGENCE OR OTHERWISE, SHALL IN ANY EVENT EXCEED AN AMOUNT EQUAL TO ALL AMOUNTS PAID BY CUSTOMER TO BINAH PURSUANT TO THIS AGREEMENT WITHIN THE NINE (9) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE ON WHICH ANY PARTICULAR CLAIM ARISES.
11. Confidential Information.
Each party agrees to keep confidential and to use only for purposes of performing or as otherwise permitted under this Agreement, any proprietary or confidential information of the other party disclosed pursuant to this Agreement which is marked as confidential or is identified at the time of disclosure as confidential or which would reasonably be considered confidential or proprietary in nature (“Confidential Information”). The obligation of confidentiality shall not apply to information which (i) is publicly available through authorized disclosure; or (ii) is known by the receiving party at the time of disclosure as evidenced in writing; or (iii) is rightfully obtained from a third party who has the right to disclose it; or (iv) which is required by law, government order or request to be disclosed (provided that the receiving party shall give written notice to the other party prior to such disclosure and an opportunity, at the objecting pa’ty’s expense, to take legal steps to resist or narrow such request). Notwithstanding any of the foregoing, Customer acknowledges and agrees that the Product shall be deemed to constitute confidential information of Binah. Upon any termination of this Agreement, each party shall destroy or return to the other party all confidential information of the other party, and all copies thereof, in the possession, custody or control of the party unless otherwise expressly provided in this Agreement.
12. Indemnity by the Customer.
Customer shall defend, indemnify and hold harmless Binah against any and all claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs, legal expenses and reasonable legal fees) arising out of, or in connection with this Agreement and/or the use of the Product licensed hereunder by the Customer or by anyone on its behalf, to the extent permitted hereunder (including in connection with any infringement of any third parties’ rights), provided that: (a) Customer is given reasonable notice of any such claim; and (b) Binah provides reasonable cooperation to Customer in the defense and settlement of such claim, at Customer’s expense.
13. Term and Termination.
13.1. This Agreement shall commence upon installing, accessing and/or using Binah’s Product and/or the Support Services, and shall continue in effect thereafter until the License or this Agreement is terminated in accordance with the terms and conditions herein (“Term”).
13.2. Notwithstanding the foregoing and without: (i) prejudice to any other rights or remedies to which Binah may be entitled under this Agreement and/or any applicable law, and (ii) derogating from the provisions of Section 6 hereunder, Binah may, at its sole discretion, immediately terminate this Agreement or the License herein and suspend or disable Customer’s (and/or anyone on its behalf, to the extent permitted hereunder) access to all or part of the Product and the Support Services, without any liability toward Customer, if: (a) Customer commits a material breach of any of the terms of this Agreement, and fails to cure that breach (if such breach is curable) within fourteen (14) days of the time that such party being notified in writing of the breach; (b) Customer has failed to pay Binah within the Agreed Payment Terms and is late in seven (7) days or more, following the applicable due date; and/or (c) either party (i) becomes insolvent, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed, or (v) institutes any proceedings for liquidation or winding up.
13.3. For the avoidance of doubt, any suspension or termination of this Agreement and/or of the access to all or part of the Product and the Support Services and/or of the License, for any reason whatsoever shall not: (i) relieve Customer from its obligations under this Agreement including without limitation any payment obligations; (ii) entitle or provide Customer with any right to receive any refund for the suspended period or any unused Users and/or Sessions during the Term; and/or (iii) extend the Term in any way whatsoever due to the suspended period.
13.4. Upon termination or expiration of this Agreement, the License under this Agreement will expire and Customer will cease any use of the Product. Within ten (10) business days of termination, Customer will destroy or deliver to Binah all copies of the Product or any portion thereof in Customer’s possession or control, and an officer of Customer will certify to Binah such destruction or delivery. All terms and provisions of the Agreement, including any exhibit or Order Forms, which by their nature are intended to survive any termination or expiration of this Agreement, will so survive.
14. Force Majeure.
Neither party shall be liable to the other for any performance delay or failure to perform hereunder, exclusive of payment obligations, due to any act, omission or condition beyond the reasonable control of the affected party, provided the affected party gives prompt notice to the other and makes reasonable efforts to resume performance as soon as possible.
15. Use of Customer’s Name.
Customer agrees that Binah may use Customer’s name and may disclose that Customer is a customer of Binah in Binah’s advertising, press, promotion and similar public disclosures; provided, however, that such advertising, promotion or similar public disclosures shall not indicate that Customer in any way endorses any Binah’s products without prior written permission from Customer.
16.1. This Agreement, together with all Exhibit and the Order Forms, constitutes the entire agreement of the parties, and supersedes any prior or contemporaneous agree¬ments between the parties with respect to the subject of this Agreement.
16.2. Facsimile and/or e-mail signatures (using PDF or other scanned version) shall be sufficient for purposes of executing this Agreement. This Agreement may be executed in counterparts.
16.3. If you are located in the Americas, this Agreement shall be governed by the laws of the State of Delaware, without regard to its conflict or choice of laws principles. The Parties agree that any and all disputes concerning this Agreement shall be brought in the federal and state courts of the state of Delaware having jurisdiction thereof and irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar claim or defense.
16.4. If you are located in the rest of the world (excluding the Americas), this Agreement shall be construed and enforced in all respects in accordance with the laws of Israel, without reference to principles of conflict or choice of law. The courts located in the Tel-Aviv District of the State of Israel shall have exclusive jurisdiction over any dispute or matter in connection with this Agreement.
16.5. The parties specifically disclaim applicability of the 1980 UN Convention on Contracts for the International Sale of Goods or any laws based on the Uniform Computer Information Transactions Act (UCITA).
16.6. Nothing contained in this Agreement is intended or is to be con¬strued to create a partnership, joint venture or agency relationship. If any provision of this Agreement shall be declared invalid, illegal or unenforceable, all remaining provisions shall continue in full force and effect.
16.7. Nothing in this Agreement shall be construed to limit or delay either Binah’s or Customer’s ability to seek immediate relief at law or in equity for any breach by the other, including a breach by Customer of the license or requirements upon termination thereof. No waiver of any rights hereunder shall be deemed to be a waiver of the same or other right on any other occasion.
16.8. All notices shall be in writing and deemed given and received when delivered in person, by facsimile or email, or by commercial air courier service. Notices shall be addressed to each party at its address set forth under the Order Form or the Partner Agreement, as applicable, or such other address as the recipient may have specified by earlier notice to the sender. Any notice shall operate and be deemed to have been served, if personally delivered or sent by facsimile or email (with written confirmation of receipt) on the next following business day and if by courier, on the fifth following business day.
17. Exhibit and Order Forms.
This Agreement includes the following Exhibit whose terms are incorporated herein:
Exhibit A – Support Agreement
The Exhibit and Order Forms form an integral part of this Agreement and do not change or supersede any term of this Agreement except to the extent a term of the Exhibit or Order Form contradicts this Agreement, in which case the term of the Exhibit or Order Form will control (as applicable).
Any failure by a party to require compliance by the other party with any of the terms, provisions, warranties, covenants or conditions of this Agreement will in no way affect the such party’s right to enforce the same, nor will any waiver by a party of any breach of any term, provision, warranty, covenant or condition of this Agreement constitute a waiver of any succeeding breach.
This Agreement is personal to each of Customer and Binah and neither party may assign this Agreement without the prior written agreement of the other party, which consent may be withheld in the sole discretion of each such party, provided that Binah may assign this Agreement, in whole or in part, without such consent to an affiliate or any other entity due to a consolidation or merger of Binah with or into, or a sale of all or substantially all of Binah’s assets to, or substantially all of Binah’s issued and outstanding share capital to such other entity. Any attempted assignment or transfer of any of the rights, duties, or obligations herein shall be void if not in compliance with this subsection. This Agreement shall inure to the benefit of and be binding upon each party’s successors and permitted assigns.
20.1. From time to time, Binah may amend this Agreement in its sole discretion. Binah will post the amended terms on Binah’s website. Binah will also update the version date at the top of the Agreement. By continuing to access or use the Product, You are indicating that you agree to be bound by the modified Agreement. If the changes have a material adverse impact on and are not acceptable to You, then You must notify Binah within 30 days of the applicable version date. If Binah cannot accommodate your objection, then the prior Agreement shall govern until the expiration of the then-current Term. Any renewed License will be governed by the then most updated version of the Agreement.
This Support Agreement (“Support Agreement”) by and between Binah and Customer provides the terms and conditions for Binah’s provision of Support Services to Customer for the Product, as defined in the License Agreement between the parties (“Agreement”).
Unless defined otherwise herein, capitalized terms used in this Support Agreement shall have the same meaning as set forth in the Agreement.
1.1. “Enhancement” means any modification or addition to the Software that materially changes its utility, efficiency, function, capability or application, but that does not solely consist of an Error Correction. Binah may designate Enhancements as Minor Updates or Major Updates.
1.2. “Error” means any failure of the Software to conform in any material respect with the Documentation.
1.3. “Error Correction” means either a bug fix, work-around, Patch, Minor Update, Major Update, Service Pack or other modification or addition that corrects an Error or a procedure or
1.4. “Error Report” means any Customer’s enquiry regarding Errors and suspected Errors with regards to the Software and requests for support therefore.
1.5. “Major Update” means a major functional and technical upgrade of the Software which shall be deemed a major upgrade and subject to additional fees. The major update of the Software contains new features as well as bug fixes; and may contain deprecated functionality replaced by improved one.
1.6. “Minor Update” means a minor functional and technical upgrade of the Software. The minor update of the Software contains some new features but mostly bugs fixes.
1.7. “Patch” means a specific functional and technical upgrade of the Software. The patch update of the software contains an immediate fix based on an issue identified by a Customer. A “Public Patch” is available for all Binah customers, while a “Private Patch” is available for a single customer only and may contain changes related only to such customer.
1.8. “Priority A Error (Showstopper)” means an Error which results in Customer’s production system being down – Customer’s production implementation of the Software is unavailable resulting in critical business impact and disruption of organization, and has no immediate fix or resolution.
1.9. “Priority B Error (High)” means an Error which results in a failure of one or more critical functions or features of the Software – either a production system or development installation of the Software is failing and causing significant disruption of work with moderate to low business impact. To be classified as a Priority B Error, the Error must have a severe impact and have no immediate fix or resolution.
1.10. “Priority C Error (Medium)” means an Error which results in a failure of one or more non-critical functions or features of the Software – the Software does not operate according to the documentation, and impact is isolated to a few people with the business impact being low.
1.11. “Priority D Error (Low)” means an Error which causes minimal impact and a minor problem or error(s) in the documentation, or a desired change in the Software which can be easily circumvented or avoided.
1.12. “Work Around” means a plan or method to circumvent a problem without eliminating it and will reduce Priority Level by one.
1.13. “Support Services” means Binah support services as described in Section 2 of this Support Agreement.
1.14. “Technical Support” means technical support assistance provided by Binah (directly or through partners and contractors) through telephone, web and/or email to the Technical Support Contact concerning the installation and use of the Software.
1.15. “Technical Support Contact” means the person(s) designated by Customer below (or elsewhere) as responsible for communications with Binah regarding Support Services hereunder.
1.16. “Update” means any new version of the Software, which may include Error Corrections, Enhancements or both, issued by Binah to its Customers, subject to the payment of the applicable Subscription Fees; and in accordance with the Binah’s official announcement to the Customer.
1.17. “Operating Environment” means the computer software, hardware, systems and networks through which or on which the Software will be installed and run by Customer.
1.18. “Problem Reproduction” shall mean such point when Binah reproduces the Error (together with all accompanying details) in its laboratories.
1.19. “Resolution” shall mean the provision of an Error Correction. The timetables for Resolution specified herein are measured from Problem Reproduction.
1.20. “Service Pack” means a maintenance functional and technical upgrade of the Software. The Service Pack contains an accumulation of all Public Patches in a single release.
2.1. Support Services.
(a) Binah Support includes Updates and Technical Support to Customer’s authorized Technical Support Contacts. Technical Support shall be available via email from 9:00 a.m. to 4:00 p.m. EST Monday through Friday (excluding U.S. National Holidays).
(b Binah shall exercise all commercially reasonable efforts to meet the following response and resolution times: (i) 2 business hours for email’s acknowledgment of a Priority A Error (2 business hours by web/email) and 2 business days for Resolution; (ii) 4 business hours for acknowledgment of Priority B and 3 business days for Resolution; (iii) 1 business day for acknowledgment of Priority C and 5 business days for Resolution; and (iv) 2 business days for acknowledgment of Priority D and 10 business days for Resolution.
2.2. Support Procedures.
Support Services consist of (i) Error Corrections and Technical Support provided to the Technical Support Contact regarding the installation and use of the Software, and (ii) periodic delivery of Updates when Binah makes such Updates commercially available to its Customers. Support Services cover only, and Customer is responsible for obtaining, Operating Environments designated by Binah in the Documentation. Any implementation services regarding any Update shall be provided by Binah for additional fees as mutually agreed by the parties through the written Services Agreement.
3. Term and Termination.
3.1. Support Services shall be provided during the Term of the Agreement If the Agreement terminates for any reason, this Support Agreement will automatically terminate.
3.2. Binah may terminate this Support Agreement or suspend Support Services if Customer breaches this Support Agreement and such breach is not remedied within 14 days after Customer receives notice of the breach.
4.1. From time to time, Binah may amend this Support Agreement in its sole discretion. Binah will post the amended terms on Binah’s website. Binah will also update the version date at the top of the Agreement. By continuing to access or use our Support Services after Binah has provided you with such notice of a change, you are indicating that you agree to be bound by the modified Support Agreement. If the changes have a material adverse impact on and are not acceptable to you, then you must notify Binah within 30 days of the applicable version date. If Binah cannot accommodate your objection, then the prior Support Agreement shall govern until the expiration of the then-current subscription period. Any renewed subscription will be governed by the then most updated version ofthe Support Agreement.
5. Correction Procedure.
5.1. Binah shall exercise commercially reasonable efforts to correct or having a Work Around, for any Error reported by Customer’s Technical Support Contact in accordance with the priority level reasonably assigned to such Error by Binah.
5.2. If Binah believes that an issue reported by Customer may not be due to an Error in the Software, Binah will so notify Customer. At that time, Customer may (i) instruct Binah to proceed with problem determination at Customer’s possible expense as set forth below or (ii) instruct Binah that Customer does not wish Binah to pursue the problem. If Customer requests that Binah proceed with problem determination at Customer’s possible expense and Binah determines that the error was not due to an Error in the Software, Customer shall pay Binah, at Binah’ then-current and standard consulting rates, for all work performed in connection with such determination, plus reasonable related expenses incurred by Binah. If Customer instructs Binah that it does not wish the problem pursued at its possible expense or if such determination requires efforts in excess of Customer’s instructions, Binah may, at its sole discretion, elect not to investigate the problem with no liability therefor. In the event the problem reported by Customer is due to an Error in the Software, Binah shall promptly correct at its expense such Error in accordance with Section 4.
6.1. Binah shall have no obligation to support:
a) Altered, damaged or modified Software or any portion of the Software incorporated with or into other software (other than as part of an application that was developed by the Customer), except for modifications or alterations provided as a result of Support Services provided by Binah;
b) Software versions that have passed their applicable Software Discontinuation Date; or
c) Software problems caused by use of or changes to third party software with which the Software is used; or
d) Software problems caused by Customer’s negligence, abuse or unreasonable misapplication, use of Software other than as specified in the Documentation (including incompatible operating environments and systems, unless Support Services have been specifically provided to make the Software compatible with such Operating Environments), accidents not arising from actions or omissions of Binah, acts of nature or other causes beyond the control of Binah;
e) Software problems caused by use of the Software’s version when it is not updated with the last available Update.
6.2. Binah shall have no liability for any changes in Customer’s hardware which may be necessary to use Software due to an Update (including any Error Correction).
6.3. In addition to warranty disclaimers provided in the Agreement, Binah does not warrant or represent that reported problems can or will be resolved to the satisfaction of Customer and does not warrant uninterrupted or error free operation of the Software or any other product or service provided by Binah.
7. End of Life Policy.
7.1. The Support Services cover each Major Update for 9 months after its general release. During the 9 months after a Major Update has been made available if any, Binah will offer Minor Update of that Major Update. During such period, Binah will also offer updates of existing functionality and bug fixes for the latest Minor Update (but not prior Minor Updates or the Major Updates if Minor Updates have been issued since the Major Update). Nine months after the release of the Major Update, such Major Update and all of its Minor Updates will have reached End of Life (“EOL”). After a Major Update has reached its EOL, Binah will not support, in any way, such Major Updates or any Minor Updtates of such Major Updates. Support only covers use of the Software on the platform or operating system versions that are specified by Binah. Support does not cover use of the Software on platforms or operating systems that are no longer supported by Binah.
These terms were last updated on September 12, 2023.