NightBeacon CMD Hosted Subscription Agreement

This HOSTED SUBSCRIPTION AGREEMENT (this “Agreement”) governs access to, use, and purchase of the Binary Defense Systems, Inc. (“Binary Defense”) proprietary software-as-a-service (“SaaS”) based, API-delivered or UI-delivered, and AI-powered threat enrichment service and platform (“NightBeacon Command”) from Binary Defense and/or from Binary Defense’s authorized resellers and channel partners by you (“Customer” or “you”). This Agreement is incorporated into each applicable Order (defined below) for the purchase of the Hosted Services (defined below) from Binary Defense and/or its resellers or channel partners, if applicable. The specific Hosted Services being subscribed for by you and the descriptions and scope of the Hosted Services being subscribed for by you are identified in the applicable Order and are described in more detail on the Binary Defense Service Descriptions located at: https://binarydefense.com/servicedescriptions and which is incorporated herein by reference (the “Service Description”).

BY REGISTERING WITH BINARY DEFENSE, CREATING AN ACCOUNT ON THE NIGHTBEACON PLATFORM, AND/OR CHECKING THE BOX BELOW, YOU CONSENT AND AGREE, ON BEHALF OF YOURSELF AND THE ORGANIZATION YOU REPRESENT (HEREINAFTER “CUSTOMER”): (1) THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND (2) TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT FOR AN ENTITY OR ORGANIZATION, SUCH AS THE COMPANY, YOU REPRESENT AND WARRANT THAT YOU HAVE LEGAL AUTHORITY TO BIND SUCH ENTITY OR ORGANIZATION.

Customer may issue a written purchase order for Hosted Services as a mechanism to execute an Order, signifying the acceptance and execution of such Order (provided the purchase order identifies the applicable Order). In such case, Customer’s purchase order (excluding any preprinted terms and conditions contained thereon) shall constitute a part of the Order and be deemed valid and binding on the parties. For clarity, to the extent there is a conflict or inconsistency between the terms of any purchase order on one hand and the Order or this Agreement on the other, the Order and this Agreement shall govern and control. Any and all pre-printed terms on any purchase order provided by any person or entity other than Binary Defense are hereby rejected by the parties and superseded by this Agreement.

1. CERTAIN DEFINITIONS.
   As used in this Agreement, the following terms have the following definitions:
   1. "Affiliate” means any person or entity controlling, controlled by, or under common control with a stated Party.
   2. “API” means the application programming interfaces with respect to the Hosted Services that, within the customary meaning in the software industry, refers to documentation and specifications of functions, methods, procedures and protocols.
   3. "API Documentation” means the set of protocols, language, syntax and rules as set up in standard reference materials, whether in print or electronic format, provided by Binary Defense to Binary Defense’s customers that describe the API functionalities and that provide instructions regarding how to develop APIs with respect to NightBeacon Command.
   4. “Binary Defense’s Systems” means the computers and computing environment from which Binary Defense (or an Approved Subcontractor) provides the Hosted Services, including all backup, redundant (whether virtual or physical), archival, testing, development, and non-production computers and computing environments.
   5. "Coordinated Software” refers to software, products or systems developed or provided by Customer or its licensors (and not by Binary Defense) that includes functionality capable of exchanging data with the Hosted Services utilizing APIs developed in accordance with the syntax and protocols defined by the API Documentation.
   6. “Customer Technology” means any system, software, hardware, or other material owned, operated, or used by Customer.
   7. "Customer Data” means: (i) all data, content, information, and material (including all text, sound, and image files) that Customer or its Personnel provide, transmit, create, store, process, or derive in the course of using the Hosted Services. Customer Data does not include the Hosted Services, the Documentation, or any Binary Defense software or content provided by Binary Defense in connection with the Hosted Services.
   8. “Documentation” means, collectively: (i) all API Documentation; (ii) all user and administrator manuals, operating instructions, installation guides, help files, standard documentation, and other printed, electronic, and online material that Binary Defense generally makes available to its customers with respect to the Hosted Services; and (iii) all other printed, electronic, or online materials that Binary Defense provides or makes available to Customer which describe the features, functions, or operation of the Hosted Services including the Hosted Services descriptions set forth in the Hosted Services Description.
   9. “Fees” means all subscription fees and other fees and amounts payable to Binary Defense under this Agreement.
   10. “Hosted Services” means the provision of access to and use of NightBeacon Command pursuant to this Agreement, including, without limitation, through the NightBeacon App.
   11. “Hosted Services Description” means the Service Description.
   12. “NightBeacon App” means the Binary Defense mobile application through which Customer can access and use the Hosted Services.
   13. “Order” means a statement of work or order form whereby Customer agrees to purchase access to the Hosted Services pursuant to this Agreement that has been executed by the Parties.
   14. “Party” means, individually, Binary Defense and Customer, and “Parties” means the two of them collectively.
   15. “Personnel” of an entity means the owners (but only if an entity is not traded on a public exchange), employees, agents, contractors, and temporary employees of that entity, including, without limitation, any Subcontractor or Approved Subcontractor; provided that, for purposes of this Agreement, Binary Defense and its Personnel shall not be considered Personnel of Customer.
   16. “Subcontractor” means a subcontractor engaged by Binary Defense.
   17. “Support” means Binary Defense’s support and maintenance program as further described herein.
2. PROOF OF CONCEPT SERVICES
   1. From time to time, and solely at Binary Defense’s discretion, Binary Defense may offer the Hosted Services on a trial, proof of concept basis (“Proof-of-Concept Services”). Proof of Concept Services shall be considered “Hosted Services” and Customer’s access to and use of Proof-of-Concept Services shall be subject to all use restrictions and other obligations applicable to Customer with respect to Hosted Services as well as any additional terms specified by Binary Defense. Proof of Concept Services will be provided to Customer for use by Customer on a limited, non-production basis for the sole purpose of permitting Customer to test the capabilities of the applicable Hosted Services in order to determine if Customer wishes to subscribe for the applicable Hosted Services. Additionally, Customer acknowledges and agrees that notwithstanding anything to the contrary contained in this Agreement, Binary Defense reserves the right to modify the features and functionalities of the Proof-of-Concept Services, including but not limited to adding new functionalities or other aspects, or limiting or discontinuing functionalities or other aspects of the Proof-of-Concept Services, at any time, in Binary Defense’s sole discretion, and without notice to Customer.
      
   2. Binary Defense provides all Proof-of-Concept Services “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS”, without any support, warranty, maintenance, error correction, or representation, warranty, or other obligation of any kind. Binary Defense may revoke Customer’s right to use any Proof-of-Concept Services and any related services at any time without incurring any liability and does not guarantee that future versions of Proof-of-Concept Services will be made available under the same terms, or at all.
   3. Proof-of-Concept Services will be provided for the trial period (the “POC Trial Period”) set forth on the applicable Order. Either Customer or Binary Defense may terminate the Proof-of-Concept Services by providing the other written notice of termination prior to the end of the POC Trial Period.
   4. BINARY DEFENSE’S PROVISION OF PROOF-OF-CONCEPT SERVICES AND APPROVAL OF CUSTOMER AS A PROOF-OF-CONCEPT SERVICES PARTICIPANT IS SUBJECT TO THE SOLE AND ABSOLUTE DISCRETION OF BINARY DEFENSE, WHICH APPROVAL MAY BE REVOKED BY BINARY DEFENSE IN BINARY DEFENSE’S SOLE AND ABSOLUTE DISCRETION.
3. BETA FEATURES. From time to time, Binary Defense may provide Customer with the option to use Beta Features. Any use of a Beta Feature will be solely at Customer’s own risk and may be subject to additional requirements as specified by Binary Defense, and all Beta Features are provided as-is and without warranty of any kind, express or implied. Binary Defense will have no liability under this Agreement (including, without limitation, any indemnification obligations) arising out of or related to Customer’s use of any Beta Feature. “Beta Feature” means any feature of the Hosted Services that is identified by Binary Defense, including via the user interface of the Hosted Services or other communications to Customer, as “Beta”, “Alpha”, “Experimental”, “Pre-Release”, or other similar identification. Binary Defense may, in its sole discretion, (i) cease providing or modify Beta Features at any time, or (ii) cease providing such features as Beta Features and require Customer to purchase such features for continued use and as part of the Hosted Services.
4. SUBSCRIPTION; PRICING AND INVOICES.
   1. Subscription. The Fees for the provision of access to the Hosted Services are set forth in the applicable Order. Unless otherwise set forth in an Order, on an annual basis during the Order Term, a four percent (4%) increase will be applied to all annual recurring Fees during the Order Term, including, without limitation, licensing, maintenance and support fees.
   2. Invoices; Payment Terms. Binary Defense shall submit invoices to Customer for the Fees due and payable hereunder at the commencement of each year of the Order Term specified in accordance with the terms set forth in the applicable Order. All invoices are payable within 30 days following the date of the applicable invoice, without right to set-off or deduction. If any undisputed amount payable to Binary Defense is in arrears for more than thirty (30) days from the invoice date, Binary Defense reserves the right, in addition to any other remedy, to (a) charge interest on such overdue amount on a day to day basis from the invoice date until paid in full at the rate of the lesser of (i) one and a half percent (1.5%) per month, or (ii) the maximum rate permissible under applicable law; and (b) suspend the provision of the Hosted Services until such time as payment is received. Customer shall be responsible for payment or reimbursement of reasonable attorneys’ fees and court costs and other expenses incurred by Binary Defense to collect amounts owed by Customer.
   3. Taxes. Unless Customer otherwise provides Binary Defense a valid exemption certification from the applicable taxing authority, Customer shall be responsible for paying all applicable taxes with respect to purchases under this Agreement, except for taxes related to Binary Defense’s income, net worth, or gross receipts.
5. LIMITED LICENSE AND INTELLECTUAL PROPERTY RIGHTS.
   1. Binary Defense hereby grants to Customer, for use by it and its Personnel, a non-exclusive, worldwide, non-sublicensable, non-transferable, non-assignable license to access the Hosted Services for Customer’s internal business operations only during the Order Term specified in the applicable Order (the “Platform License”).
   2. Binary Defense hereby grants to Customer and its Affiliates during the Term of this Agreement a non-exclusive license to use the API Documentation for purposes of developing, implementing, maintaining and using APIs between the Hosted Services and the Coordinated Software. Binary Defense will deliver the API Documentation for Customer’s use in developing APIs between the Hosted Services and the Coordinated Software.
   3. Binary Defense acknowledges that, as between Binary Defense and Customer, Customer owns all rights, title, and interest in and to all of its Customer Data and it is the sole property of Customer.
   4. Binary Defense may use or disclose statistical, analytical, and usage data or information created or derived from Customer’s or its Personnel’s use of the Hosted Services.
   5. Customer acknowledges that, as between Binary Defense (and its licensors) and Customer, Binary Defense (or its licensors) owns all rights, title and interest in and to the Hosted Services. Except for the rights expressly granted to Customer as set forth in this Agreement, all rights in and to the Hosted Services (including, without limitation, all worldwide intellectual property and proprietary rights) are reserved to and retained by Binary Defense.
   6. Customer may, whether or not formally requested, provide to Binary Defense suggestions, enhancements, comments, feedback, and other recommendations regarding the Hosted Services (collectively, “Feedback”). Binary Defense owns, and will own, all rights, title, and interest in such Feedback and Customer hereby assigns, and covenants and agrees to assign to Binary Defense all rights, title and interest including, without limitation, all worldwide intellectual property and proprietary rights that Customer has or may have in and to all Feedback.
6. TECHNICAL SUPPORT. Binary Defense shall use commercially reasonable efforts to provide the Hosted Services in accordance with the terms of this Agreement and the Service Level Agreement available at https://binarydefense.com/nightbeaconai-sla
7. REPRESENTATIONS AND WARRANTIES.
   1. Each of Binary Defense and Customer represents and warrants to the other that:
      1. They have the full power and authority to (i) enter into this Agreement, (ii) grant and receive, respectively, the rights granted in this Agreement, and (iii) provide and use, respectively, the Hosted Services.
      2. They are not in breach of and shall not breach any agreement or other obligation to keep in confidence, or to refrain from using, the personal, confidential, proprietary, or trade secret information of any person or entity, and shall not use any such information, in connection with the Hosted Services.
   2. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT OR AN ORDER, EACH PARTY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
8. INDEMNIFICATION
   1. Binary Defense and Customer (the “Indemnitor”) each shall defend, indemnify, and hold harmless the other and its Personnel, directors, and Affiliates (each, an “Indemnitee”) from third party claims, obligations, causes of action, losses, damages, judgments, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”), arising from a breach of this Agreement by the Indemnitor, or the gross negligence, recklessness, or willful misconduct of the Indemnitor (each, a “Claim”). Indemnitee shall give to Indemnitor prompt notice of such Claim shall permit Indemnitor to control the defense and settlement of such Claim (provided that (a) Indemnitee may monitor but not control the defense and settlement of such Claim with counsel of its own choosing and its own expense, and Indemnitee shall cooperate in the same, and (b) Indemnitor shall not propose a judgment or agree to a settlement that attributes fault or liability to an Indemnitee without the prior written consent of Indemnitee).
   2. In addition to the obligations set forth above, if any Hosted Services becomes subject to a Claim that such Hosted Services or the use thereof infringes or violates the intellectual property rights of a third party, and its use is enjoined as a result thereof, Binary Defense will promptly, at Binary Defense’s option, (i) procure for Customer the right to continue to use such Hosted Services, (ii) replace or modify such Hosted Services in a manner that retains its functionality and quality so that it is no longer infringing, misappropriating or violating such right, or (iii) terminate this Agreement by written notice to Customer and require Customer to stop using such Hosted Services.
   3. Notwithstanding the above, if (i) Indemnitor is unable to take the appropriate action necessary to defend or settle any Claim, including because Indemnitor is insolvent or in bankruptcy, or (ii) Indemnitor breaches or intends to breach this term by not defending or settling any Claim, then in each case the Indemnitee may take sole control of the defense or settlement of such Claim.
   4. Except as expressly provided in this Agreement, each Party disclaims all other representations and warranties, whether express, implied, statutory or otherwise.
9. LIMITATIONS OF LIABILITY.
   1. UNDER NO CIRCUMSTANCES SHALL BINARY DEFENSE BE LIABLE TO CUSTOMER FOR ANY (I) INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, COSTS, EXPENSES OR LOSSES, OR (II) LOSS OF BUSINESS OR LOST PROFITS (REGARDLESS OF WHETHER EITHER IS DEEMED TO BE “INDIRECT,” “SPECIAL,” “CONSEQUENTIAL,” “INCIDENTAL,” “PUNITIVE,” “EXEMPLARY,” OR ANY OTHER CATEGORY OF DAMAGES), THAT, IN EACH CASE, ARISE IN ANY WAY OUT OF THIS AGREEMENT, ANY RELATED DOCUMENT, OR OTHERWISE RELATE TO THE SUBJECT MATTER HEREOF OR THEREOF.
   2. THE MAXIMUM LIABILITY OF BINARY DEFENSE UNDER THIS AGREEMENT IN THE AGGREGATE SHALL BE LIMITED TO THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO BINARY DEFENSE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO THE LIABILITY.
   3. The terms of this Section shall apply to the fullest extent of the law and regardless of whether the damage, cost, expense, or loss is based in contract, statute, tort (including negligence) or otherwise.
   4. Notwithstanding anything to the contrary in this Agreement, Binary Defense may set off against any amounts payable to Customer under this Agreement, any amounts owed by Customer to Binary Defense under this Agreement or otherwise.
10. CONFIDENTIALITY.
    1. “Discloser” as used herein shall be the Party that discloses or causes the disclosure of the Confidential Information at issue or to which such Confidential Information belongs or is otherwise confidential.
    2. “Recipient” as used herein shall be the Party that receives Discloser’s Confidential Information.
    3. “Confidential Information” as used herein shall mean all documents, materials, information and ideas of or about (i) Customer or any of its past, current or prospective clients or suppliers (in which case Customer would be Discloser), or (ii) Binary Defense (in which case Binary Defense would be Discloser), in each case that are not generally known to the public, including, without limitation, documents, materials, information and ideas relating to business plans, strategies, programs, operations, methodologies, policies, practices, procedures, trade secrets (as defined by applicable law), products, services, equipment, systems, facilities, human resources, benefits, and Personnel, whether in written, oral, electronic or any other form or media, which is designated as “Confidential,” “Proprietary” or a similar designation, or which the Recipient should reasonably know is confidential. The Hosted Services and NightBeacon Command, and all components and elements thereof, are the Confidential Information of Binary Defense.
    4. Notwithstanding the above, Confidential Information shall not include information that (i) is or becomes publicly available, other than as a result of disclosure by Recipient in breach of this Agreement, (ii) was known by Recipient prior to receipt of such information from Discloser free of any obligation of confidentiality, or (iii) is developed by Recipient independently of any information received from Discloser.
    5. Recipient shall:
       1. Maintain the confidentiality of the Confidential Information using at least the same degree of care as it employs in maintaining its own trade secret, proprietary and/or confidential information, but in no event using less than a reasonable degree of care.
       2. Limit its use of the Confidential Information solely for purposes of exercising its rights and/or fulfilling its obligations under this Agreement.
       3. Limit access to the Confidential Information solely to those Personnel of Recipient who have a direct and immediate need of such access and who are obligated to maintain the confidentiality of such information.
       4. Not disclose the Confidential Information to any third parties except to its own directors, officers, employees, consultants, Subcontractors and legal and business advisors (collectively, “Representatives”) who have a need to know such information and who are obligated to maintain the confidentiality of such information pursuant to confidentiality obligations at least as restrictive as those herein. Each Party is responsible for any breaches of this Section 10 by its Representatives.
    6. Notwithstanding the above, it shall not be a breach of this Agreement for Recipient to disclose Discloser’s Confidential Information (i) pursuant to the prior written consent of Discloser; (ii) as requested or required by interrogatories, requests for information from a governmental, regulatory or supervisory authority, subpoena or similar legal process, or in accordance with professional standards, or in connection with litigation pertaining hereto, provided that, where reasonably feasible, Recipient shall (a) provide Discloser with notice prior to such disclosure and reasonable assistance in obtaining, through court order, administrative ruling, or otherwise, a limitation or other protection of the Confidential Information that is subject to such disclosure and limits its disclosure only to the information expressly required to be disclosed, and (b) allow the Discloser to participate in the proceeding that requires the disclosure; or (iii) that was disclosed to Recipient on a non-confidential basis from a source other than Discloser where Recipient reasonably believes that (a) the source is not prohibited from making such disclosure and (b) the information is not otherwise confidential to Discloser, provided that upon discovery of the confidential nature of the information, Recipient promptly takes action to treat such information as Discloser’s Confidential Information hereunder.
    7. Customer will not, in the course of performance of this Agreement or thereafter, use the name “Binary Defense”, or any related name, mark or logo, in any press release, advertisement, or other promotional or marketing material or media, whether in written, oral, electronic, visual, or any other form, without, in each case, Binary Defense’s prior written consent.
    8. Each of Customer and Binary Defense recognizes and acknowledges that the Confidential Information of the other Party is of a special, unique and extraordinary character, disclosure of which cannot be wholly compensated by monetary damages, and that any disclosure or unauthorized use of the Confidential Information, or other breach of this Section 10 by them or their Personnel or Representatives, shall cause the other Party irreparable injury. Each of Customer and Binary Defense, therefore, expressly agrees that, in addition to any rights and remedies which such other Party may have under this Agreement or at law or in equity, such other Party shall be entitled, without the posting of any bond or security, to injunctive and/or other equitable relief to prevent the breach of this Section 10, and/or to otherwise secure the enforcement of any of its terms.
    9. Solely to the extent Binary Defense Processes Customer Personal Information (as defined in the Data Processing Addendum), the Parties agree that the Data Processing Addendum provided athttps://binarydefense.com/terms/dpa(as updated by Binary Defense from time to time), shall apply and are incorporated herein. For clarity, Customer shall not submit to the Hosted Services or otherwise provide to Binary Defense any protected health information, payment card information, social security numbers, biometric identifiers, classified or export-controlled material, plaintext passwords or secrets, children’s data, or any data the Customer lacks rights to submit.
11. SUBCONTRACTORS. Binary Defense may subcontract or delegate to Subcontractors its obligations under this Agreement; provided, that, no such subcontract shall relieve Binary Defense of its obligations under this Agreement.
12. NOTICES.
    Any notice required or permitted hereunder will be delivered to the address listed below as follows (with notice deemed given as indicated): (i) by personal delivery when delivered in person; (ii) by established overnight courier upon written verification of receipt; (iii) by facsimile transmission when receipt is confirmed orally or in writing; (iv) by certified or registered mail, return receipt requested, upon verification of receipt; or (v) by electronic delivery (for routine communications) when receipt is confirmed orally or in writing.
    
    If to Binary Defense:
    Binary Defense Systems, Inc.
    ATTN: Legal Department
    600 Alpha Parkway
    Stow, OH 44224
    With a copy to info@binarydefense.com
    
13. TERM AND TERMINATION.
    1. Term. This Agreement shall be effective as of the Effective Date and continue until the earlier of (i) six (6) months after the date on which all Orders have expired or terminated and a Party has given the other Party thirty (30) days prior written notice of termination, or (ii) the date on which this Agreement and all Orders are terminated pursuant to the provisions set forth in Section 13(B) below (the “Term”). Unless otherwise set forth expressly in an Order, the term of an Order starts on the effective date of the applicable Order and continues for a period of three (3) years (the “Initial Order Term”). The Initial Order Term will automatically renew in one (1) year increments (each, a “Renewal Order Term”) unless either Party delivers written notice to the other Party of its intent not to renew at least sixty (60) days prior to the expiration of the then-current Initial Order Term or Renewal Order Term (as applicable). The Initial Term and all Renewal Terms are referred to collectively as the “Order Term”.
    2. Termination.
       1. Termination for Bankruptcy. Either Customer or Binary Defense may terminate immediately (i) this Agreement and/or (ii) any Order, in each case if the other Party ceases business operations, makes a general assignment for the benefit of creditors, becomes insolvent or the subject of voluntary bankruptcy or receivership proceedings, or if bankruptcy or receivership proceedings are initiated against it and not lifted within 10 days.
       2. Termination of Agreement for Breach. Either Customer or Binary Defense may terminate this Agreement by delivery of written notice of termination, for material breach of this Agreement by the other Party, if the other Party does not cure such breach within 30 days following receipt of such notice; provided, that, in the event of material breach by Binary Defense, if such breach cannot reasonably be cured within such 30 day period but Binary Defense has taken reasonable steps toward a cure during such 30 day period, such 30 day period shall be extended for an additional reasonable period to permit Binary Defense to complete such cure. Such notice shall set forth in reasonable detail the nature of the breach and the date of termination.
       3. Effect of Termination; Survival.
          1. Termination of this Agreement shall automatically terminate all Orders.
          2. Termination of any Order shall not terminate this Agreement unless the terminating Party provides notice that specifically states that this Agreement is also being terminated as permitted hereunder.
          3. Upon any termination of this Agreement or any Order(s) for any reason, Customer remains responsible for and shall immediately pay to Binary Defense all unpaid Hosted Services Fees accrued or incurred as of such termination effective date. Additionally, and unless this Agreement is terminated by Customer for cause under Section 13.B.2. as a result of Binary Defense’s material breach, Customer remains responsible for and shall immediately pay to Binary Defense all Fees in relation to the Hosted Services as set forth under the Order(s) for the remainder of the applicable Order Term(s). Prepaid Fees are not refundable except in the event Customer terminates this Agreement for cause under Section 13.B.2. as a result of Binary Defense’s material breach, in which case, Binary Defense will provide a refund to Customer of such pre-paid, un-used subscription-based Fees for periods following such termination a pro-rata basis from the effective date of termination.
          4. Sections 2.B., 3, 4, 5, 7, 8, 9, 10, 12, 13.B.3., and 16 shall survive termination of this Agreement.
14. INSURANCE. During the Term of this Agreement, Binary Defense shall maintain insurance coverage, and on all certificates for coverage under general liability, automotive liability, and umbrella liability. Upon request, Binary Defense shall furnish Customer with certificates of insurance evidencing all of the insurance referred to herein. Coverage amounts include Commercial General Liability Insurance with a $1,000,000 limit for bodily injury and property damage written on an occurrence basis and $2,000,000 general aggregate, Automobile Liability Insurance on hired and non-owned automobiles with a combined single limit of $1,000,000 on each accident, and Umbrella Liability Insurance with a $5,000,000 limit written on an occurrence and aggregate basis. The obligations set forth in this Section 14 shall not operate to expand Binary Defense’s liability beyond the limitations on liability set forth in Section 9 of this Agreement.
15. AI TERMS. Certain services, features, or functionalities of the Hosted Services may utilize artificial intelligence or similar technologies (“Binary Defense AI”). Any Binary Defense AI (and all worldwide intellectual property rights and proprietary rights therein and thereto) made available by Binary Defense is, as between Customer and Binary Defense, owned exclusively by Binary Defense. Use of and access to the Binary Defense AI shall be subject to the Binary Defense AI Terms and Conditions, which are linked hereto and incorporated herein. The Binary Defense AI Terms and Conditions are incorporated herein by reference. Use of the Binary Defense AI may be subject to additional fees, as determined by Binary Defense.
16. NightBeacon App. 
    1. Binary Defense makes available the NightBeacon App which permits Customer to access and use the Hosted Services via a mobile device. To use the NightBeacon App, you must have a mobile device that is compatible with the mobile service. Binary Defense does not warrant that the NightBeacon App will be compatible with your mobile device. Binary Defense hereby grants to you a non-exclusive, non-assignable, non-transferable, non-sublicensable, revocable license to use an object code copy of the NightBeacon App for one registered account on one mobile device owned or leased solely by you, for personal or internal business purposes. You may not: (i) modify, disassemble, decompile or reverse engineer the NightBeacon App, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the NightBeacon App to any third-party or use the NightBeacon App to provide time sharing or similar services for any third-party; (iii) make any copies of the NightBeacon App; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the NightBeacon App, features that prevent or restrict use or copying of any content accessible through the NightBeacon App, or features that enforce limitations on use of the NightBeacon App; or (v) delete the copyright and other proprietary rights notices on the NightBeacon App. You acknowledge that Binary Defense may from time to time issue updated versions of the NightBeacon App, and may automatically electronically update the version of the NightBeacon App that you are using on your mobile device. You consent to such automatic updating on your mobile device, and agree that this Agreement will apply to all such updates. The foregoing license grant is not a sale of the NightBeacon App or any copy thereof, and Binary Defense and its third-party licensors or suppliers own, retain, and reserve all rights, title, and interest in and to the NightBeacon App (and any copy of the NightBeacon App) including, without limitation, all intellectual property and proprietary rights therein and thereto. All rights not expressly granted to Customer hereunder are reserved to and retained by Binary Defense. Standard carrier data charges may apply to your use of the NightBeacon App.
    2. The following additional terms and conditions apply with respect to the NightBeacon App that Binary Defense provides to Customer for use on an Apple iOS-powered mobile device (an “iOS App”): 
       1. You acknowledge that this Agreement is between you and Binary Defense only, and not with Apple, Inc. (“Apple”).
       2. Your use of Binary Defense’s iOS App must comply with Apple’s then-current App Store Terms of Service.
       3. Binary Defense, and not Apple, is solely responsible for our iOS App and the Hosted Services available thereon. You acknowledge that Apple has no obligation to provide maintenance and support services with respect to our iOS App. To the maximum extent permitted by applicable law, Apple will have no warranty obligation whatsoever with respect to our iOS App.
       4. You agree that Binary Defense, and not Apple, is responsible for addressing any claims by you or any third-party relating to our iOS App or your possession and/or use of our iOS App, including, but not limited to: (i) product liability claims; (ii) any claim that the iOS App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation, and all such claims are governed solely by this Agreement and any law applicable to us as provider of the iOS App.
       5. You agree that Binary Defense, and not Apple, shall be responsible, to the extent required by this Agreement, for the investigation, defense, settlement and discharge of any third-party intellectual property infringement claim related to our iOS App or your possession and use of our iOS App.
       6. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country or “country of concern”; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.
       7. You further represent, warrant, and covenant that: (i) you, your Affiliates, and your and your Affiliates respective Personnel are not and will not be: (A) “countries of concern” or “covered persons” (as defined in the United States Department of Justice Final Rule “Provisions Pertaining to Preventing Access to U.S. Sensitive Personal Data and Government-Related Data by Countries of Concern or Covered Persons” 28 CFR Part 202 (the “Rule”)); or (B) located in, or owned by, countries of concern or covered persons, or that are subject to trade sanctions or other legal restrictions under the Rule, or other applicable federal, state, local, or foreign laws, rules, or regulations; and (ii) you, your Affiliates, and your and your Affiliates respective Personnel will not access or use, or export, re-export, divert, or transfer any of your, your Affiliates’, or your or your Affiliates’ respective users personal information or data in or to countries of concern or covered persons, or that are subject to trade sanctions or other legal restrictions under the Rule or other applicable federal, state, local, or foreign laws, rules, or regulations.
       8. You agree to comply with all applicable third-party terms of agreement when using our iOS App (e.g., you must not be in violation of your wireless data service terms of agreement when using the iOS App).
       9. The parties agree that Apple and Apple’s subsidiaries are third-party beneficiaries to this Agreement as they relate to your license of Binary Defense’s iOS App. Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as it relates to your license of the iOS App as a third-party beneficiary thereof.
    3. The following additional terms and conditions apply with respect to the NightBeacon App that Binary Defense provides to Customer for use on an Android-powered mobile device (an “Android App”):
       1. You acknowledge that this Agreement is between you and Binary Defense only, and not with Google, Inc. (“Google”).
       2. Your use of Binary Defense’s Android App must comply with Google’s then-current Android Market Terms of Service.
       3. Google is only a provider of the Android Market where you obtained the Android App. Binary Defense, and not Google, is solely responsible for Binary Defense’s Android App and the Hosted Services available thereon. Google has no obligation or liability to you with respect to Binary Defense’s Android App or this Agreement.
       4. You acknowledge and agree that Google is a third-party beneficiary to this Agreement as it relates to Binary Defense’s Android App. Upon your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as it relates to your license of the iOS App as a third-party beneficiary thereof.
17. GENERAL TERMS. 
    1. Construction.
       1. Agreement Headings and Numbering. Section and paragraph headings and numbers used in this Agreement are included for convenience of reference only and, if there is any conflict between any such numbers and headings and the text of this Agreement, the text shall control.
       2. Including. As used in this Agreement, the word “including” means “including, without limitation,” and the word “include” means “include, without limitation,”.
    2. Entire Agreement. This Agreement constitutes the full and complete agreement of the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements, both written and oral, between the Parties with respect to its subject matter.
    3. Ancillary Documents. Any Schedule, Exhibit, Appendix or attachment to this Agreement, and any linked terms, is an integral part of this Agreement and is incorporated herein by reference.
    4. Orders. Each Order entered into under this Agreement is an integral part of this Agreement and is incorporated herein.
    5. Conflict. In the event of a conflict or inconsistency between the main body of this Agreement and any Schedule, Exhibit, Appendix, or attachment to this Agreement, including without limitation, any Order, the main body of this Agreement shall govern and control in the absence of an express statement in a Schedule, Exhibit, Appendix, or attachment to this Agreement, including without limitation, any Order, indicating that such Schedule, Exhibit, Appendix, or attachment to this Agreement, including without limitation, the Order, shall govern and control with respect to a particular term or issue.
    6. Modifications. Binary Defense reserves the right to modify and make updates to this Agreement at any time. All changes will be effective immediately upon posting. No failure of Binary Defense to exercise or enforce any of its rights under this Agreement will act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.
    7. Force Majeure. If and to the extent that a Party’s performance of any of its obligations hereunder is prevented, hindered or delayed by acts of God, war, riots, terrorism, embargos, industry-wide third party strikes and boycotts, acts of public enemy, acts of military authority, earthquake, fire or flood or other similar event or similar cause beyond such Party’s reasonable control (but excluding labor and union related activities with respect to Binary Defense’s workforces, failures of Binary Defense agents, and inability to obtain supplies) (each, a “Force Majeure Event”), and such non-performance, hindrance or delay could not have been prevented by reasonable precautions or remediated or mitigated by reasonable actions taken by such Party, including the use of alternate sources, or workaround plans, then such Party shall be excused for such non-performance, hindrance or delay of those obligations affected by the Force Majeure Event for as long as such Force Majeure Event continues. If a Party suffering a Force Majeure Event is unable to cure that event within sixty (60) days after the event commences, the other Party may terminate this Agreement.
    8. Severability. If any term in this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such term shall be reformed to the maximum extent allowed by law to reflect the original intent of the Parties (or, in absence of such intent, the same economic effect) as closely as possible to the invalid, illegal, or unenforceable term, and the other terms of this Agreement will remain in full force and effect in such jurisdiction. Such invalidity, illegality, or unenforceability shall not affect any other term in this Agreement, or invalidate or render unenforceable such term, in any other jurisdiction.
    9. Waiver of Breach. No waiver of any breach, or of any objection to any act or omission connected therewith, shall be implied or claimed by any of the Parties, or be deemed to constitute a consent to any continuation of such breach, act or omission, unless contained in a writing signed on behalf of the Party against whom enforcement of such waiver or consent is sought.
    10. Remedies Not Exclusive. Exercise or enforcement of a right or remedy given in this Agreement shall not be considered to be in lieu of enforcement of other rights or remedies otherwise existing at law or equity, unless specifically waived in writing.
    11. Applicable Laws. This Agreement is governed by the laws of the State of Delaware, United States, without regard to or application of choice-of-law rules or principles. The Parties irrevocably consent to the jurisdiction of the state and Federal courts located in the state of Delaware. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Customer agrees that if this Agreement is translated into another language, the original English version governs.
    12. Dispute Resolution; Waiver of Jury Trial. The Parties will attempt to settle any claim or controversy arising out of this Agreement through consultation and negotiation in good faith. If any dispute which cannot be resolved by the Parties through negotiation, then either party may submit the claim to the courts for resolution. Nothing in this Section will prevent a Party from resorting to judicial proceedings immediately if: (a) good faith efforts to resolve the dispute have been unsuccessful; (b) interim, injunctive or other equitable relief from a court is necessary to prevent serious and irreparable injury to one Party or to others; or (c) litigation is required to be filed prior to the running of the applicable statute of limitations. The use of any alternative dispute resolution procedure will not be construed under the doctrine of latches, waiver or estoppel to affect adversely the rights of either party. All of the above alternative dispute resolution procedures shall be confidential. All negotiations and proceedings will be conducted in English. BINARY DEFENSE AND CUSTOMER, HAVING BEEN REPRESENTED BY COUNSEL, EACH KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS, WHETHER IN CONTRACT, TORT OR OTHERWISE, THIS AGREEMENT OR ANY RELATED AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
    13. Assignment. Neither Party may assign this Agreement, in whole or in part, either voluntarily or by operation of law, without the prior written consent of the other Party except that either Party may assign or transfer this Agreement without the consent of the other Party to a successor, by operation of law or otherwise, in connection with a merger, acquisition, reorganization, consolidation, sale of all or substantially all of such Party’s assets, sale of business, sale of equity securities, change of control, or other similar transaction; provided, that the assignee or transferee agrees in writing to be bound by this Agreement or is bound by this Agreement by operation of law. Any attempt to assign this Agreement in violation of this Section will be a material default of this Agreement and will be void.
    14. Relationship of the Parties. No agency, partnership, franchise, or joint venture is created among or between any of the Parties by this Agreement.