IF YOU ARE USING THE BANANATAG SOFTWARE ON BEHALF OF YOUR EMPLOYER OR IN CONNECTION WITH A BUSINESS OR OTHER ORGANIZATION OR ENTITY (“ENTITY”), YOUR ACCEPTANCE OF AND AGREEMENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT WILL BE DEEMED TO BE AN AGREEMENT BETWEEN SAID ENTITY AND BANANATAG AND YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND SAID ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS OR IF YOU ARE NOT AUTHORIZED TO BIND SAID ENTITY, DO NOT DOWNLOAD, INSTALL OR USE THE BANANATAG SOFTWARE.
This Agreement (“Agreement”) sets forth the terms and conditions under which BananaTag Systems Inc. (“BananaTag”, “We” or “Us”) will provide to you (“Licensee” or “You”) the right to use and access the proprietary BananaTag software application (collectively, the “BananaTag Service”). The BananaTag Service may be used and accessed by You only under the following terms:
1. License, Fees and Conduct .
1.1 License: BananaTag grants to You, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, limited license (without the right to sublicense) during the Term (as defined herein) to install and use the BananaTag Service.
1.2 Fees: As consideration using the BananaTag Service, You agree to pay BananaTag, or its agents or subcontractors, as the case may be, the required fees, if any. It is Your responsibility to keep BananaTag informed of changes to Your billing information (e.g., billing address, account number, and expiration date). You agree to remit payment for Services rendered within thirty (30) days of Your receipt of the invoice for such Services from BananaTag.
NOTE THAT DOWNGRADING YOUR ACCOUNT MAY RESULT IN THE LOSS OF FEATURES, HISTORICAL DATA, CONTENT, OR CAPACITY OF YOUR ACCOUNT. BANANATAG SYSTEMS DOES NOT ACCEPT ANY LIABILITY FOR ANY SUCH LOSSES.
You agree that You will not (i) use the Service to violate any local State, Federal or international law or regulation or encourage conduct that would constitute such a violation or give rise to a civil liability; (ii) interfere with or infringe any intellectual or proprietary rights of any other party, including, for example, copyrights, trademarks, service marks, and patents; (iii) intentionally and maliciously interfere with the ability of other users to access or use the Service; (iv) intentionally and maliciously interfere with or disrupt the Service, or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (v) reproduce, duplicate, copy, use, distribute, sell, resell or otherwise exploit for any commercial purposes any portion of the Service; (vi) transmit, or otherwise facilitate the transmission by anyone, of erroneously labeled and/or intentionally deceptive e-mail messages (e.g., “spam” or “junk mail”); (vii) copy, reproduce, publish, distribute, modify, create derivative works of, rent, lease, sell, transfer, transmit, or compile or collect in a database any part of the Service, including BananaTag’s content, in whole or in part; (viii) “mirror” the Service or any content on any other server; or (ix) exceed the usage limitations for the service subscribed for without upgrading the subscription to the next higher subscription level and paying for such subscription upgrade.
1.4 Password & Security: Certain aspects of the BananaTag Service may require You to first create an account, obtain a login name and password, and/or provide billing information. You must provide accurate, complete and current information, and must update this information promptly if it changes.
You are responsible for taking reasonable steps to maintain the confidentiality of Your login name and password. You must promptly notify BananaTag of any unauthorized use of Your login name of which You are aware and You are responsible for any unauthorized activities, charges and/or liabilities made on or through Your login name as a result of Your breach of Your obligations in the preceding sentence. You may not transfer or lend login names to any third party.
2. No Transfer of Intellectual Property; You acknowledge that the source code for the BananaTag Service and other trade secrets embodied in the BananaTag Service have not been, will not be, and are not intended to be disclosed to You, nor do You acquire any right to such intellectual property in and to BananaTag Service. Except as specifically permitted in this Agreement, You will not directly or indirectly: (a) distribute, copy, adapt, create derivative works of, translate, localize, port or otherwise modify the BananaTag Service or (b) authorize any third party to engage in any of the acts described in clauses (a) and (b). Further, You are not permitted to: (c) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the BananaTag Service; (d) use any means to discover the source code of the BananaTag Service or to discover the trade secrets in the BananaTag Service; or (e) otherwise circumvent any technological measure that controls access to the BananaTag Service.
3. Maintenance; Enhancements.
3.1 Maintenance: BananaTag will provide such support for the BananaTag Service as it considers appropriate during the Term, and will address such issues as may, in Bananatag’s reasonable discretion, need addressing, provided that such support will not include support for issues resulting from: (i) the malfunction of software not provided by BananaTag; (ii) the failure of hardware to perform in accordance with its specifications; (iii) Your misuse, negligence or fault; (iv) Your failure to follow the instructions set forth in the Documentation or (v) modifications or changes to the BananaTag Service not performed by BananaTag.
3.2 Enhancements: BananaTag may from time to time make available updates, enhancements and/or modifications to the BananaTag Service and shall provide such updates to You, which will be identified by a change in the BananaTag Service version number. The provision by BananaTag to You of such updates, enhancements and/or modifications to the BananaTag Service will be subject to all covenants and conditions of this Agreement, including, but not limited to, the restrictions on Your use of the BananaTag Service and BananaTag’s disclaimer of warranties.
4.1 Confidential Information: “Confidential Information” means all non-public information provided by one party to the other, or obtained by one party from the other whether or not marked or identified as confidential at the time of disclosure. All Confidential Information shall remain the sole property of the disclosing party. Confidential Information does not include any portion of any such information that: (i) becomes available to the public other than by a breach of this Agreement; (ii) is rightly received from a third party who has a right to make such disclosure without any obligation of confidentiality; (iii) is independently developed by a party without access to Confidential Information of the other; (iv) is known to the recipient before receipt thereof pursuant to this Agreement, provided the recipient has no reasonable basis for concluding that such information was made available in violation of a confidentiality agreement with another party; or (v) is generally made available to third parties without restriction on disclosure.
4.2 Confidentiality Obligations: Both parties agree to:
(a) keep secret and maintain the Confidential Information as confidential and to hold the Confidential Information in trust, taking all reasonable measures to maintain the confidentiality of the Confidential Information of the other party in its possession or control, which will in no event be less than the measures a party uses to maintain the confidentiality of its own information of similar importance;
(b) use the Confidential Information solely as expressly permitted by this Agreement;
(c) segregate the Confidential Information from other information and that of third parties;
(d) promptly notify the other party upon learning about any court order or other legal requirement that purports to compel disclosure of any Confidential Information and to cooperate with the other party in the exercise of the other party’s right to protect the confidentiality of the Confidential Information before any tribunal or government agency;
(e) not disclose the Confidential Information to any third party without the prior written consent of the disclosing party; and
(f) at any time upon the disclosing party’s request, to return or destroy any and all Confidential Information, and certify such in writing.
If applicable, each party will be liable for any breaches of this Agreement by its employees, consultants or contractors. Notwithstanding the foregoing, each party may disclose the other party’s Confidential Information (i) to its employees, on a “need-to-know” basis, (ii) to its lawyers or other professional advisors, who are obligated to maintain the confidentiality of such information, (iii) to its third party consultants, contractors or other agents solely in connection with the exercise of its rights or the performance of its obligations under this Agreement, and provided that such disclosure is pursuant to a non-disclosure agreement containing terms at least as restrictive as those set forth herein that restrict the further use or disclosure of the other party’s Confidential Information; or (iv) as required by law or a court order, provided that the recipient promptly notifies the discloser of such law or court order and reasonably cooperates with the discloser in the exercise of the discloser’s right to protect the confidentiality of the Confidential Information before any tribunal or government agency.
5. WARRANTIES, INDEMNIFICATION, AND LIMITATION OF LIABILITY.
5.1 Warranties: BananaTag warrants that: (i) The BananaTag Service will perform in substantial conformance with the documentation supplied with the BananaTag Service; and (ii) BananaTag shall make reasonable efforts to keep The BananaTag Services free of viruses.
EXCEPT FOR THOSE WARRANTIES SET FORTH EXPRESSLY IN THIS AGREEMENT, BANANATAG HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE BANANATAG SERVICE, THE DOCUMENTATION, AND THE USE, PERFORMANCE, OPERATION AND SUPPORT THEREOF, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT, ACCURACY, COMPLETENESS, INTEGRATION, UNINTERRUPTED USE, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. BANANATAG DOES NOT WARRANT THAT (A) THE BANANATAG SERVICE WILL MEET YOUR REQUIREMENTS, (B) OPERATION OF THE BANANATAG SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR (C) DEFECTS WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
5.2 Indemnification: Each party under this Agreement hereby agrees to indemnify, defend, protect and hold harmless the other party, its agents, members, directors, officers, and employees from and against any third party claim alleging that any intellectual property provided by such party infringes the intellectual property rights of any third party.
5.3 Limitation of Liability: BOTH PARTIES AGREE THAT IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THIS AGREEMENT OR EVEN IF PREVIOUSLY APPRISED OF THE POSSSIBILITY THEREOF. IN ANY CASE, IF EITHER PARTY SHOULD BE, OR IS CLAIMED TO BE, LIABLE FOR ANY DAMAGES WHATSOEVER, THE AMOUNT OF SUCH DAMAGES SHALL NOT EXCEED AN AMOUNT EQUAL TO THE GREATER OF THE AMOUNT PAID BY YOU TO BANANATAG IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY OR TWELVE (12) TIMES THE AMOUNT PAID OR PAYABLE BY YOU IN THE MONTH FOLLOWING THE EVENT GIVING RISE TO SUCH LIABILITY. . Notwithstanding the foregoing, the limitations of liability shall not apply to each party’s obligations under Section 4 (NONDISCLOSURE) OR Section 5.2 (Indemnification).
6. Ownership. You acknowledge and agree that BananaTag owns all right, title and interest in and to the BananaTag Service and the Documentation and all Intellectual Property pertaining to BananaTag Service, (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and You agree not to take any action(s) inconsistent with such ownership interests including, without limitation, any use of the BananaTag Service or Documentation except as expressly permitted in this Agreement. Except as expressly provided in this Agreement, You do not acquire any rights or licenses under any of BananaTag’s copyrights, patents, patent applications, trade secrets, trademarks or other intellectual property rights on account of this Agreement or Your performance under this Agreement. All (a) suggestions for correction, change and modification to the BananaTag Service, evaluation data, evaluations and other feedback (including, but not limited to, quotations of written or oral feedback relating to the BananaTag Service or the Documentation), information and reports provided to BananaTag by You, except for Your Confidential Information, (“Feedback”), and all (b) improvements, updates, modifications or enhancements, made, created or developed by BananaTag relating to or concerning the BananaTag Service or Documentation and, whether or not conceived or made under this Agreement or in the course of, or as a result of, Your use or performance hereunder (collectively, “Revisions”), are and will remain the property of BananaTag, and You acknowledge and expressly agree that any contribution in the form of Feedback will not give or grant You any right, title or interest in the BananaTag Service or Documentation or in any such Feedback or Revisions. All Feedback and Revisions will be the sole and exclusive property and Confidential Information of BananaTag and BananaTag may use and disclose any such Feedback and Revisions in any manner and for any purpose whatsoever without compensation to You and without retention by You of any proprietary or other claim. You hereby assigns any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property rights) that You may have in and to any and all Feedback and Revisions to BananaTag. Upon request by BananaTag, You will execute any document, registration or filing required to give effect to the foregoing assignment.
7. Term and Termination.
7.1 Term; Termination: The term of Your License and this Agreement (“Term”) will be for 1 month from the Effective Date, and such Terms shall automatically renew for further periods of 1 month. (The date 1 month from sign-up or from the last renewal of the License and this Agreement (whichever is later) shall herein be referred to as the “Renewal Date”) If You have signed up for one of the paid versions of BananaTag, you hereby authorize BananaTag to charge your credit card on (or after) each successive Renewal Date for each successive renewal term of your license at the rate of the license or any increased rate provided that BananaTag has given You notice of such increase not less than sixty (60) days prior to the renewal date.
If BananaTag offers, and You have subscribed to, an annual paid service, the terms described above for monthly terms shall apply to the annual term, mutatis mutandis. Either party may terminate this Agreement upon thirty (30) days advance written notice to the other party at any time and for any reason with effect on the next following Renewal Date. Additionally, if either party materially breaches this Agreement, the non-breaching party may immediately terminate this Agreement if the breaching party does not cure such breach within ten (10) days of receiving notice of such breach from the non-breaching party.
7.2 Rights Upon Termination: You agree that, in the event of the expiration or termination of this Agreement for any reason, Your rights to access and use the BananaTag Service and the Documentation are terminated and You will cease accessing or using the BananaTag Service and the Documentation. BananaTag reserves the right to disable (including remotely) the BananaTag Service in the event of a breach of this Agreement by You that You do not cure within thirty (30) days of receipt of written notice from BananaTag or at any time from and after the expiration or termination of this Agreement.
7.3 Surviving Sections: The rights and obligation of the parties under this Section 7.3, as well as Sections 2, 4, 5, 6, 7.2, 8, 10, 11 and 12 will survive the expiration or termination of this Agreement.
8. Export Laws. You are granted the rights to access and use the BananaTag Service and the Documentation via the site where the BananaTag Service may be accessed and will not export or re-export, directly or indirectly (including via remote access), the BananaTag Service, Documentation and/or other information or materials provided by BananaTag hereunder, to any other country without first obtaining such license or approval. It will be Your responsibility to comply, and You agree to comply at Your sole expense, with all export laws and regulations applicable to You. The BananaTag Service and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the BananaTag Service and Documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this Agreement.
9. Taxes. You are solely responsible for any and all properly and timely invoiced VAT or sales or use taxes, or fees incurred by You under this Agreement. If You are subject to VAT, sales or use taxes in your jurisdiction which BananaTag is not required to invoice for or collect, You will have to self-declare and self-remit such sales or use taxes in accordance with the laws of Your jurisdiction.
10. Notices. All communications under this Agreement will be in writing. Any notice, request, instruction, or other document to be given by a party under this Agreement shall be delivered to the other party either: (i) in person; (ii) by one day express courier service to the address specified in this Agreement; or (iii) by first class mail to the address specified in this Agreement, certified or registered, return receipt requested; or (iv) by written telecommunication, including email, in case of notice to You, to the e-mail address provided by You at the time of signing up for BananaTag Service or thereafter edited on Your member/user account webpage. It is Your responsibility to keep your address and e-mail address on Your member/user account webpage current.
11. Remedies. Notwithstanding anything to the contrary in this Agreement, the parties agree that a breach by either party of its obligations under Section 1.3 (Conduct) or Section 4 (Nondisclosure) will cause immediate and irreparable harm to the other party and shall entitle the non-breaching party to seek injunctive relief in addition to all other remedies.
12. Contact. You agree that BananaTag may contact You from time to time to inform You of updates to the service or your account.
13. Usage of Logo. You grant Bananatag the right to use your company logo. Bananatag may not modify or change the logo in any way and the logo may only be used for purposes of identifying company as a Bananatag customer. The logo shall not be used in any manner, which may be considered, in your sole discretion, disparaging or negative. You have the right to revoke the license to use company logo at any time in your sole discretion.