Last Revised: September 18, 2023
1.1 These Binoloop Terms of Service (these “Terms”) apply to the features and functions provided by Binoloop, Inc. (“Binoloop”, “we”, or “us”) via www.app.binoloop.com (the “Site”) (collectively, the “Platform”), unless you and Binoloop have mutually executed a separate written agreement covering your right to access and use the Platform (in which case that agreement will govern). By accessing or using the Site or the Platform, you agree to be bound by these Terms. If you do not agree to these Terms, you are not allowed to use the Site or the Platform. The “Effective Date” of these Terms is the date you first use the Site or access any part of the Platform.
1.2 If you are using the Site or accessing the Platform in your capacity as an employee, consultant or agent of a company or other entity, you represent that you are an employee, consultant or agent of that company or entity, and that you have the authority to bind that. company or entity to these Terms. For these Terms, you (and, if applicable, the company or entity that you represent) will be referred to as “Customer” or “you”.
1.3 Binoloop reserves the right to change or modify these Terms, or any of our other policies or guidelines, at any time upon notice to you. We may provide that notice in a variety of ways, including, without limitation, sending you an email, posting a notice on the Site, or posting the revised Terms on the Site and revising the date at the top of these Terms. Any changes or modifications will be effective after we provide notice that these Terms have been modified. You acknowledge that your continued use of the Site or the Platform following such notice constitutes your acceptance of the modified Terms.
1.4 Binoloop reserves the right – at any time, and without notice or liability to you – to modify the Site or the Platform, or any part of them, temporarily or permanently. We may modify the Platform for a variety of reasons, including, without limitation, for the purpose of providing new features, implementing new protocols, maintaining compatibility with emerging standards, or complying with regulatory requirements.
1.5 These Terms form a binding agreement between you and Binoloop. Violation of any of the Terms below will result in the termination of your account(s).
Please see Binoloop’s privacy policy at www.binoloop.com/privacy for information about how we collect, use, and disclose information about users of the Site and the Platform. By using the Site and the Platform, you consent to our collection, use, and disclosure of information as set forth in our privacy policy, as we may update that policy from time to time.
In order to use the Platform, you must first complete a registration process.
You agree:
4.1 Subject to your continued compliance with these Terms, Binoloop hereby grants you a limited, non-exclusive, non-transferable license to access and use the Platform, solely for the purpose of evaluation or education (the “Permitted Purpose”), and not for any production or commercial use. You understand and agree that you must enter into a separate written agreement with Binoloop, and pay the agreed-upon license fee, in order to access or use the Platform for any production or commercial purpose.
4.2 Binoloop reserves all rights in and to the Platform that are not expressly granted to you in these Terms.
Except as expressly authorized by these Terms, you may not:
5.1 If you publish or upload data, images, or content, or otherwise make (or allow any third party to make) material available by means of the Site or the Platform (collectively, “Content”), you agree that you are entirely responsible for such Content, and for any harm or liability resulting from or arising out of that Content. Your responsibility applies whether or not the Content in question constitutes text, graphics, or any other type of content, and whether or not you were the original creator or owner of the Content. You agree that you will be responsible for all Content on your account(s), even if placed there by third parties. By publishing or uploading Content to the Site or the Platform, you represent and warrant that:
5.2 By submitting or uploading Content to the Platform, you grant Binoloop a worldwide, royalty-free, and non-exclusive license.
If you delete Content, Binoloop will use reasonable efforts to remove it from the Platform. You acknowledge, however, that cached copies or other references to the Content may still be available.
5.3 Without limiting any of your representations or warranties with respect to the Content, Binoloop has the right (but not the obligation) to reject or remove any Content, without liability or notice to you, that Binoloop believes, in Binoloop’s sole discretion:
YOU ACKNOWLEDGE THAT THE SITE AND THE PLATFORM ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND THAT YOUR USE OF THE SITE AND THE PLATFORM IS AT YOUR SOLE RISK. BINOLOOP DOES NOT WARRANT: THAT THE SITE OR THE PLATFORM WILL MEET YOUR SPECIFIC REQUIREMENTS,
THAT THE SITE OR THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE,
THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL THAT YOU PURCHASE OR OBTAIN THROUGH THE SITE OR THE PLATFORM WILL MEET YOUR EXPECTATIONS, OR (E) THAT ANY ERRORS IN THE SITE OR THE PLATFORM WILL BE CORRECTED. BINOLOOP SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
You agree, at your sole expense, to defend, indemnify and hold Binoloop (and its directors, officers, employees, consultants and agents) harmless from and against any and all actual or threatened suits, actions, proceedings (whether at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs, and expenses (including, without limitation, reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising out of or relating to
8.1 IN NO EVENT WILL BINOLOOP’S TOTAL, AGGREGATE LIABILITY TO YOU OR TO ANY THIRD PARTY ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF (OR INABILITY TO USE) ANY PART OF THE SITE OR THE PLATFORM EXCEED THE GREATER OF: (I) THE TOTAL AMOUNT YOU ACTUALLY PAID TO BINOLOOP IN SUBSCRIPTION FEES TO USE THE PLATFORM DURING THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE ACCRUAL OF THE FIRST CLAIM; OR (II) FIVE HUNDRED DOLLARS ($500). MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
8.2 IN NO EVENT WILL BINOLOOP BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, INTERRUPTION OF BUSINESS, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF, OR IN CONNECTION WITH THESE TERMS OR YOUR USE (OR INABILITY TO USE) ANY PART OF THE SITE OR THE PLATFORM, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
8.3 THIS SECTION (LIMITATION OF LIABILITY) WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
9.1 As between the parties:
9.2 You acknowledge that any suggestions, comments, or other feedback that you provide to Binoloop with respect to the Site, the Platform, or any other Binoloop product or service (collectively, “Feedback”) will be owned by Binoloop, including all Intellectual Property Rights therein, and will be and become Binoloop’s Confidential Information (as defined below). You acknowledge and agree that Binoloop will be free to use, disclose, reproduce, license, and otherwise distribute and exploit the Feedback as Binoloop sees fit, without obligation or restriction of any kind. At our request and expense, you agree to execute documents or take such further actions as we may reasonably request to help us acquire, perfect, and maintain our rights in the Feedback.
10.1 These Terms will apply to you starting on the Effective Date, and will continue for as long as you are accessing or using the Site or the Platform.
10.2 Binoloop, in its sole discretion, has the right to suspend your ability to use and/or access the Site or the Platform, without liability, for any reason, including, without limitation, under the following circumstances:
10.3 Either of us can terminate these Terms upon notice to the other if the other party breaches any of these Terms and fails to cure the breach within fifteen (15) days of receiving written notice of it from the non-breaching party. We reserve the right to terminate these Terms for cause immediately upon notice to you, and without giving you a cure period, if you breach any of these Terms relating to our intellectual property (including your compliance with the access grant and any restrictions) or our Confidential Information (defined below).
10.4 When these Terms terminate or expire:
You acknowledge and agree that any Binoloop names, trademarks, service marks, logos, trade dress, or other branding included on the Site or as part of the Platform (collectively, the “Marks”) are owned by Binoloop and may not be copied, imitated, or used (in whole or in part) without Binoloop’s prior written consent. All other trademarks, names, or logos referenced on the Site or the Platform (collectively, “Third-Party Trademarks”) are the property of their respective owners, and the use of such Third-Party Trademarks inure to the benefit of their respective owners. The use of such Third-Party Trademarks is intended to denote interoperability, and does not constitute an affiliation by Binoloop or its licensors with any company or an endorsement or approval by that company of Binoloop, its licensors, or their respective products or services.
12.1 For the purposes of these Terms, “Confidential Information” means any non-public business or technical information of Binoloop or its licensors or partners that Binoloop discloses to you or which you access as a result of your use of the Site or the Platform, whether such information is provided in writing, orally, electronically, or by any other means, and including things like computer programs, code, algorithms, data, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial, and product development plans, names and expertise of employees and consultants, and customer lists. For the purposes of these Terms, you agree that the Feedback and any non-public aspects of the Site or the Platform (including, without limitation the source code of any Binoloop- proprietary software) will be deemed to be Binoloop’s Confidential Information, regardless of whether it is marked as such.
12.2 You will not use Confidential Information, except as permitted by these Terms. You agree to maintain the Confidential in strict confidence and protect the Confidential Information using at least the same degree of care as you use for your own information of a similar nature, but in all events at least a reasonable degree of care. You agree to take all reasonable precautions to prevent any unauthorized disclosure of Confidential Information, including, without limitation, disclosing Confidential Information only to your employees:
12.3 The restrictions set forth in Section 12.2 will not apply with respect to any Confidential Information that you can prove via documentary evidence:
13.1 These Terms, together with any policies incorporated into these Terms by reference, are the complete and exclusive understanding of the parties with respect to Binoloop’s provision of, and your use of and access to, the Site and the Platform, and supersede all previous or contemporaneous agreements or communications, whether written or oral, relating to the subject matter of these Terms (including, without limitation, prior versions of these Terms). Any terms or conditions that you send to Binoloop that are inconsistent with or in addition to these Terms are hereby rejected by Binoloop, and will be deemed void and of no effect.
13.2 These Terms will be governed by and construed in accordance with the laws of Canada. Any legal action or proceeding arising under, related to, or connected with these Terms will be brought exclusively in the federal (if they have jurisdiction) or provincial courts located in Alberta, Canada, and the parties irrevocably consent to the personal jurisdiction and venue of such court(s). The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act will not apply to these Terms. If a party initiates any proceeding regarding these Terms, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs.
13.3 You agree that Binoloop has the right to use your name and logo on the Site or other Binoloop websites or marketing materials, for the purposes of identifying you as a Binoloop customer and describing your use of the Platform. You also agree that Binoloop may (but is under no obligation to):
13.4 You may not assign these Terms, in whole or in part, by operation of law or otherwise, without the prior written consent of Binoloop, and any attempted transfer, assignment or delegation without such consent will be void and of no effect. Binoloop may freely transfer, assign or delegate these Terms, or its rights and duties under these Terms, without notice to you. Subject to the foregoing, these Terms will be binding upon and will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.
13.5 Except as expressly set forth in these Terms, the exercise by either party of any of its remedies will be without prejudice to its other remedies under these Terms or otherwise. The failure by a party to enforce any part of these Terms will not constitute a waiver of future enforcement of that or any other provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by an authorized representative of the waiving party.
13.6 You agree that any notice that Binoloop is required to provide pursuant to these Terms can be given electronically, which may include an email to the email address you provide to Binoloop as part of your Registration Data. These notices can be about a wide variety of things, including responding to your questions, requests for additional information, and legal notices. You agree that such electronic notices satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day the email is sent to you, provided that the email is the same as the email address you provided as part of your Registration Data.
13.7 You acknowledge that you are responsible for complying with all applicable laws and regulations associated with your access and use of the Site and the Platform, including, without limitation, all applicable export control laws and regulations.
13.8 We do not develop any technical data or computer software pursuant to these Terms. The Site and the Platform have been developed solely with private funds, are considered “Commercial Computer Software” and “Commercial Computer Software Documentation” as described in FAR 12.212, FAR 27.405-3, and DFARS 227.7202-3, and access is provided to U.S. Government end users as restricted computer software and limited rights data. Any use, disclosure, modification, distribution, or reproduction of the Site or the Platform by the U.S. Government, its end users or contractors is subject to the restrictions set forth in these Terms
13.9 If any portion of these Terms is held to be unenforceable or invalid, that portion will be enforced to the maximum extent possible, and all other provisions will remain in full force and effect.
13.10 We are each independent contractors with respect to the subject matter of these Terms. Nothing contained in these Terms will be deemed or construed in any manner whatsoever to create a partnership, joint venture, employment, agency, fiduciary, or other similar relationship between us, and neither of us can bind the other contractually.