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Terms and Conditions for Binary Defense Services

These Terms and Conditions for Binary Defense Services (the “Terms and Conditions”) govern the purchase and use of Binary Defenses System, Inc. (“Binary Defense”) services, software (“Software”), equipment (“Equipment”), and any other product (collectively, “Services”) from Binary Defense and from Binary Defense’s authorized resellers and channel partners.  These Terms and Conditions are incorporated into each Statement of Work (“SOW”) with Binary Defense and any and all orders for the purchase of Services (“Order”) from Binary Defense and/or its resellers or channel partners.  “Client” for purposes of these Terms and Conditions shall mean the party listed on the applicable SOW and/or Order.

1.  Client Responsibilities

Client will provide Binary Defense with the cooperation, access and detailed information as reasonably necessary or requested by Binary Defense, for Binary Defense to implement and deliver the Services, including, without limitation: (i) test time on Client’s computer systems and networks sufficient for Binary Defense to provide the Services, and (ii) direct access to and cooperation on an as needed basis upon the reasonable request of Binary Defense from at least one employee of Client who has substantial computer system, network and project management experience reasonably satisfactory to Binary Defense to act as project manager and as a liaison between Client and Binary Defense.  If the Services include consulting, staffing, advising, or any other Services whereby Client requires Binary Defense to monitor or use third-party services or software, Client shall provide Binary Defense all such access as is reasonably necessary, including, without limitation, obtaining licenses from such third parties as is necessary for Binary Defense to perform the Services. Binary Defense will be excused from, and not liable or responsible for, its failure to perform its obligations under these Terms and Conditions to the extent such failure is caused by Client’s acts or omissions, including, without limitation, Client’s delay in performing or its failure to perform its responsibilities under these Terms and Conditions.

Each party represents and warrants that it has full capacity, power, and authority to enter into the Terms and Conditions and to perform all obligations contained herein.

Client represents and warrants that it: (i) is responsible for the use and misuse of the Services by Client and End Users (as defined below), including, without limitation, maintaining strict compliance with these Terms and Conditions and all applicable laws, rules, and regulations; (ii) owns, has the necessary rights, power and authority, and is responsible for the accuracy, quality and legality of Client’s data and information that it inputs into the Services or that Binary Defense access as a part of the Services (“Client Data”), including, without limitation, the lawful use and transmission of Client Data (including, without limitation, obtaining all necessary consents and providing all necessary notices with respect to such Client Data) provided by Client; (iii) will obtain all rights, permissions or consents from any personnel and third parties that are necessary to allow Binary Defense to perform the Services; (iv) will use commercially reasonable efforts to maintain security controls according to industry standards and prevent unauthorized access to or use of Binary Defense’s IP Rights or any of the Services, and will notify Binary Defense promptly of any breach of these Terms and Conditions and of any unauthorized access to or use of Binary Defense’s IP Rights or the Services. Client is solely responsible for (1) any authorized or unauthorized access to Client Data, Client’s technical environment or the Services, to the extent not otherwise caused by Binary Defense’s gross negligence or willful misconduct, (2) Client’s actions and failures to take actions with respect to the Services and its users, and (3) acts or omissions by Client’s End Users (as defined below) or any other third party. Binary Defense may create analyses utilizing, in part, Client Data and information derived from Client’s use of the Services, including but not limited to improvement of Service features, functionality, and performance, verification of Client use, security and data integrity, and identification of additional trends, developments and benchmarking based on aggregated use by clients (“Aggregate Data”).

“IP Rights” as used in these Terms and Conditions shall mean all past, present, and future rights of the following types that may exist or be created under any applicable law: (i) rights associated with works of authorship, including, without limitation, exclusive exploitation rights, copyrights, and moral rights, (ii) trademark and trade name or similar rights, (iii) trade secret rights, (iv) patent, industrial and technology property rights, and industrial design rights, (v) other proprietary rights in or to intellectual property of every kind and nature, and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses (i) through (v).

Binary Defense will provide to Client all user IDs, passwords, access and use of the Software, in object code format only, as described in a SOW, and the applicable documentation as amended from time to time by Binary Defense. During the Term and subject to Client’s and its End Users’ compliance with these Terms and Conditions and the applicable SOW, Binary Defense grants Client a limited, non-sublicensable, non-transferable, revocable, non-assignable (except as otherwise expressly permitted in these Terms and Conditions and the applicable SOW), royalty-free and non-exclusive license to access and use the Services delivered to Client for Client’s and its Permitted Affiliates (defined in Section 11 below) internal security purposes, subject to the restrictions in the Terms and Conditions and as required by Binary Defense in a SOW.  

Client and its End Users (i) will use the Services for Client’s internal security purposes only, and (ii) will not, and will not allow or direct any Affiliate of Client or any third party to, (a) sell, rent, license, assign, distribute, perform, or transfer any of the Services; (b) decipher, decompile, disassemble, reconstruct, translate, reverse engineer, or discover any source code of the Services; (c) copy any Services, except that Client may make a reasonable number of copies of the documentation for its internal use only; or (d) remove from any Service any language or designation indicating the confidential nature thereof or the proprietary rights of Binary Defense or its suppliers.  In addition, Client will not, and will not allow or direct any Affiliate or third party to, (1) use any Service for the benefit of any third party, including but not limited to, on a time-sharing, outsourcing, service bureau, hosting, application service provider or managed service provider basis; (2) alter any aspect of any Service; or (3) distribute, or otherwise provide access to any of the Services unless expressly set forth in the applicable SOW. 

Client shall remain responsible and liable for its End Users’ use of the Services, including, without limitation, any Software. “End User(s)” shall mean any individual that directly, or indirectly accesses or uses the Services under Client’s account(s) used to access or use the Services, including, without limitation, any Software. Client and its End Users will not, and will not allow or direct any Affiliate or third party to use the Services: (i) for illegal or fraudulent purposes; (ii) to violate the rights of or harm any individual or third party; (iii) to threaten, incite, promote, or actively encourage violence or serious harm; (iv) for the transmission of any unlawful content; (v) to violate, breach, or threaten the security, integrity, or availability of any user, network, computer, communications system, or the Services; or (vi) to distribute, publish, send, or facilitate sending unsolicited mass emails, messages, promotions, advertising or solicitations. If the Services provided require log-in credentials for its and its End Users’ access to and use of the Services, Client shall ensure that all such log-in credentials are only used for Clients internal use. Client shall ensure log-in credentials remain secure. Client will be deemed to have taken any action that occurs under any End User account or log-in.

Client shall promptly notify Binary Defense if it becomes aware of any breach of this Section or any unauthorized use or access to Service log-in credentials. Binary Defense can immediately suspend any End User’s access to and use of the Services if the End User is in breach of this Section.

2. CounterIntelligence Further Investigations

Subscribers of CounterIntelligence services will be allocated 5% of their annual subscription fee for further investigations of requested Intel briefs. Hourly rates will be $350/hour. Balance will be communicated on a per use basis. Any unused allocation will expire at the end of each subscription term.

3. Threat Hunting Investigations

The Threat Hunting phase is the main focus of the threat hunt. This phase determines if the hypothesis can be proven using the detection methods documented during the research phase. It is possible that during the Hunt phase evidence of malicious activity will be found. When this occurs, Binary Defense will communicate what was found and it will be the responsibility of the Client to enact their incident response process.  Subscribers of Threat Hunting services over their subscription fee will be billed at an hourly rate of $350/hour. Balance will be communicated on a per use basis.

4. Fees; Payment Terms; Taxes

If Client is procuring the Services through a third party authorized by Binary Defense to distribute and provide the Services (an “Authorized Reseller”), Client shall pay to the Authorized Reseller the amounts due for the Services as agreed to between Client and the Authorized Reseller, pursuant to the invoicing and payment terms agreed to between the Client and the Authorized Reseller. Binary Defense hereby disclaims any responsibility for the acts or omissions of any Authorized Reseller. Authorized Resellers are not authorized to modify these Terms and Conditions or make any promises or commitments on behalf of Binary Defense, and Client hereby acknowledges and agrees that Binary Defense is not bound by any obligations to Client other than as set forth in these Terms and Conditions or the applicable SOW(s).

If Client is not procuring the Services through an Authorized Reseller, the following payment terms shall apply. All charges, fees, payments and amounts are invoiced and paid in United States Dollars.  Amounts due under each Binary Defense invoice are payable upon receipt of the invoice, without the 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 Services until such time as payment is received. Client 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 Client.

The fees for the Services will be set forth on each applicable SOW, which does not include reasonable expenses, including but not limited to shipping, travel expense, hotel and meals incurred by Binary Defense and will be invoiced as incurred.  On an annual basis, a four percent increase will be applied to all annual recurring services including, without limitation, licensing, maintenance and support fees. Professional security service hours (if applicable) expire 12 months following the date of execution of the applicable SOW. If Client would like to make any changes to a SOW, including, for example, to any Services, Binary Defense will provide pricing to Client for such changes on Binary Defense’s change order process (“Change Order”), which will be subject to mutual agreement.  Binary Defense will not be obligated to perform any Services until Binary Defense’s Change Order has been signed by Client and Binary Defense. Any changes to the agreed upon schedule for on-site work that requires travel will incur a re-scheduling fee equal to all out-of-pocket expenses for modifying the travel arrangements. 

Unless Client otherwise provides Binary Defense a valid exemption certification from the applicable taxing authority, Client shall reimburse Binary Defense and hold Binary Defense harmless for all taxes arising out of these Terms and Conditions and related SOW(s), including, but not limited to, any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the Services, except for taxes imposed on Binary Defense’s net income.

Physical shipments of Services are FOB Point of Shipment unless otherwise specified. Freight charges may be prepaid by Binary Defense and will be invoiced to the Client.

5. Limitations of Liability; Disclaimer and Damages

BINARY DEFENSE’S TOTAL LIABILITY FOR ALL CLAIMS AND DAMAGES ARISING OUT OF THESE TERMS AND CONDITIONS AND THE SOW(S), WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID BY CLIENT TO BINARY DEFENSE UNDER THE APPLICABLE SOW GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRIOR TO WHEN THE CLAIM FIRST AROSE. CLIENT IS REQUIRED TO FILE ANY CLAIM OR ACTION IN A COURT OF COMPETENT JURISDICTION WITHIN SIX (6) MONTHS AFTER THE CLAIM FIRST AROSE OR SUCH CLAIM OR ACTION IS FOREVER BARRED.

EXCEPT FOR CLIENT’S OBLIGATION TO PAY THE AMOUNTS AS SET FORTH IN THESE TERMS AND CONDITIONS AND THE APPLICABLE SOW AND CLIENT’S VIOLATION OF BINARY DEFENSE’S (OR ITS THIRD PARTY LICENSOR’S) IP RIGHTS, IN NO EVENT WILL EITHER PARTY (AND IN THE CASE OF BINARY DEFENSE, BINARY DEFENSE, ITS AFFILIATES, VENDORS, SUBCONTRACTORS, SUPPLIERS, AND LICENSORS)  BE LIABLE IN ANY WAY ARISING UNDER THESE TERMS AND CONDITIONS, A SOW, OR RELATED TO THE SERVICES FOR (I) ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, OR (II) DAMAGES RELATING TO LOSS OF REVENUE, INCOME, OR PROFIT, LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S) OR NETWORK(S), LOSS OF BUSINESS OPPORTUNITY, OR BUSINESS INTERRUPTION OR DOWNTIME; ARISING FROM OR IN RELATION TO THESE TERMS AND CONDITIONS, ANY SOW, ANY THIRD PARTY’S ACTS, OMISSIONS OR TERMS AND CONDITIONS, OR THE USE (OR INABILITY TO USE) OR DELIVERY OF THE SERVICES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.  IN THE EVENT APPLICABLE LAW DOES NOT PERMIT SUCH LIMITATIONS, THE FOREGOING LIMITATION SHALL APPLY TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW.

EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS AND CONDITIONS, EACH PARTY AND THEIR LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, RESULTS TO BE DERIVED FROM THE USE OR INTEGRATION WITH ANY SERVICES PROVIDED UNDER THESE TERMS AND CONDITIONS OR APPLICABLE SOW, OR THAT THE OPERATION OF ANY SERVICES WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, OR CAN OR WILL PREVENT A SECURITY BREACH OR UNAUTHORIZED ACCESS TO, LOSS OF, OR DAMAGE TO CLIENT DATA, SERVERS, NETWORKS, OR SYSTEMS. 

CLIENT AGREES THAT IT IS NOT RELYING ON DELIVERY OF FUTURE FUNCTIONALITY, PUBLIC COMMENTS, OR ADVERTISING OF BINARY DEFENSE OR PRODUCT ROADMAPS IN ENTERING INTO THESE TERMS AND CONDITIONS AND RELATED SOWs. DEPENDING ON THE TYPE OF SERVICES BEING PURCHASED BY CLIENT PURSUANT TO A SOW.

BINARY DEFENSE USES A SAMPLING METHODOLOGY THAT ATTEMPTS TO REDUCE THE COST TO THE CLIENT WHILE MINIMIZING THE IMPACT TO THE ACCURACY AND RELIABILITY OF THE RESULTS. CLIENT ACKNOWLEDGES AND ACCEPTS THAT LIMITATIONS AND INHERENT RISKS EXIST FROM APPROACHES USED BY BINARY DEFENSE TO DELIVER THE SERVICES. THE PARTIES ACKNOWLEDGE AND AGREE THAT NO MONITORING AND DETECTION SERVICES VENDOR, INCLUDING BINARY DEFENSE, CAN GUARANTEE THAT IT WILL BE ABLE TO DETECT EVERY THREAT AGAINST CLIENT. CLIENT ACKNOWLEDGES AND AGREES THAT BINARY DEFENSE IS LIMITED IN ITS ABILITY TO MONITOR AND DETECT THREATS ONLY TO THREATS THAT ARE PUBLICLY VISIBLE, PUBLICLY ACCESSIBLE, AND PUBLICLY DETECTABLE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS AND CONDITIONS, THE PARTIES ACKNOWLEDGE AND AGREE THAT BINARY DEFENSE, ITS SUBCONTRACTORS, SUPPLIERS, AND LICENSORS CANNOT UNDER ANY CIRCUMSTANCES GUARANTEE THAT, AND HEREBY DISCLAIMS ANY EXPRESS OR IMPLIED REPRESENTATION, WARRANTY, COVENANT OR CONDITION THAT, A WEAKNESS, NONCOMPLIANCE ISSUE, OR VULNERABILITY (INCLUDING, WITHOUT LIMITATION, THOSE THREATS AGAINST CLIENT THAT ARE MASKED, OBSCURED, ENCRYPTED, OR OTHERWISE SECURED AGAINST ACCESS OR DETECTION) WILL BE DISCOVERED IF EVIDENCE OF SUCH IS NOT ENCOUNTERED BY BINARY DEFENSE DURING THE PERFORMANCE OF THESE TERMS AND CONDITIONS; PROVIDED THAT BINARY DEFENSE SHALL AT ALL TIMES REMAIN RESPONSIBLE FOR PERFORMANCE OF THE SERVICES IN MATERIAL COMPLIANCE WITH THESE TERMS AND CONDITIONS AND THE APPLICABLE SOW.  

ADDITIONALLY, IF APPLICABLE UNDER A SOW, THE SERVICE MAY INCLUDE SECURITY SCANNING, TESTING, ASSESSMENTS, FORENSICS OR REMEDIATION SERVICES (“SECURITY SERVICES”). CLIENT HEREBY AUTHORIZES BINARY DEFENSE TO PERFORM THOSE SECURITY SERVICES ON NETWORK RESOURCES WITH THE IP ADDRESSES IDENTIFIED BY CLIENT AND CLIENT ACKNOWLEDGES AND UNDERSTANDS THAT BINARY DEFENSE MAY USE VARIOUS METHODS AND SOFTWARE TOOLS TO PROBE NETWORK RESOURCES FOR SECURITY-RELATED INFORMATION AND TO DETECT ACTUAL OR POTENTIAL SECURITY FLAWS AND VULNERABILITIES. CLIENT REPRESENTS AND WARRANTS THAT, IF CLIENT DOES NOT OWN SUCH NETWORK RESOURCES, IT WILL HAVE OBTAINED CONSENT AND AUTHORIZATION FROM THE APPLICABLE THIRD PARTY AS NECESSARY TO PERMIT BINARY DEFENSE TO PROVIDE THE SECURITY SERVICES. FURTHERMORE, CLIENT   ACKNOWLEDGES THAT THE SECURITY SERVICES DESCRIBED HEREIN COULD POSSIBLY RESULT IN SERVICE INTERRUPTIONS, LOSS OR CORRUPTION OF DATA, OR DEGRADATION OR INTERRUPTION REGARDING THE CLIENT’S SYSTEMS AND CLIENT ACCEPTS THOSE RISKS AND CONSEQUENCES. 

BINARY DEFENSE DOES NOT PROVIDE LEGAL ADVICE. THE PARTIES HEREBY AGREE THAT NO REPORT OR OTHER WORK PRODUCT PROVIDED TO CLIENT SHALL CONSTITUTE LEGAL ADVICE, LEGAL OPINIONS, OR LEGAL SERVICES. THE DECISIONS OF CLIENT, OR THE ACTIONS OR OMISSIONS OF CLIENT, BASED ON THE SERVICES PROVIDED HEREUNDER ARE CLIENT’S OWN. BINARY DEFENSE SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE DECISIONS MADE BY CLIENT, OR THE ACTIONS OR OMISSIONS OF CLIENT, BASED UPON THE SERVICES PROVIDED UNDER THESE TERMS AND CONDITIONS, ANY SOW, OR THE RESULTS OBTAINED FROM SUCH SERVICES, OR THE ANALYSIS OR INTERPRETATION OF CONTENT OR DATA USED IN CONNECTION WITH, RESULTING FROM OR DERIVED FROM THE SERVICES PROVIDED UNDER THESE TERMS AND CONDITIONS. CLIENT IS SOLELY RESPONSIBLE FOR THE SELECTION AND USE OF ALL THIRD PARTY PRODUCTS. BINARY DEFENSE DISCLAIMS ALL LIABILITY ARISING FROM THIRD PARTY PRODUCTS. CLAIMS RELATED TO THIRD PARTY PRODUCTS ARE THE SOLE RESPONSIBILITY OF THE THIRD PARTY, AND CLIENT WAIVES ANY RIGHT IT MAY HAVE TO BRING A CLAIM AGAINST BINARY DEFENSE RELATED TO THIRD PARTY PRODUCTS. AS USED IN THESE TERMS AND CONDITIONS, “THIRD PARTY PRODUCTS” SHALL MEAN THOSE PRODUCTS OR SERVICES OFFERED AND PROVIDED BY THIRD PARTIES TO CLIENT, WHETHER OR NOT SUCH CLIENT USE OR ACCESS IS FACILITATED BY OR THROUGH BINARY DEFENSE, AND INCLUDES, FOR EXAMPLE, CYBER SECURITY OR ENDPOINT OR SECURITY SERVICES AND PRODUCTS PROVIDED BY THIRD PARTIES.

6. Indemnification

Client will indemnify, defend, and hold harmless Binary Defense and its Affiliates, vendors, suppliers, licensors (in the case of Third Party Products being purchased by Client), directors, officers and employees from and against any third party claims, losses, expenses, damages, and liabilities (including, without limitation, reasonable attorney’s fees) arising from the following:  (i) the Client Data, (ii) Client’s use of the Services, any reports, or any property or rights of Binary Defense (including, without limitation, Binary Defense IP Rights) in a manner prohibited under these Terms and Conditions, (iii) Client’s breach of payment obligations thereunder, or (iv) any data security, system or network security incident or breach in connection with the Client Data or other data, Confidential Information, personally identifiable information, protected health information, or the networks, computer, telecommunications, servers or other applications, systems, or devices of Client, its Affiliates, or their respective employees, agents, representatives, contractors, or vendors. As used in these Terms and Conditions, “Third Party Products” shall mean those products or services offered and provided by third parties to Client, whether or not such Client use or access is facilitated by or through Binary Defense, and includes, for example, cyber security or endpoint detection or security services and products provided by third parties.

Binary Defense will (i) provide Client with reasonable notice after becoming actually aware of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not relieve the Client’s obligations, and (ii) allow Client to solely control the defense of any claim, suit, or proceeding and all negotiations for settlement. In no event can Client enter into any third party settlement or other agreements, which would in any manner whatsoever affect, the rights or, or bind Binary Defense in any manner to such third party, without the prior written consent of Binary Defense. Binary Defense has the right, at its own cost and expense, to be represented by counsel of its choosing at any proceeding or settlement discussions related to any matter for which the Client is obligated to provide indemnification hereunder.

The Parties acknowledge and agree that any judgment or settlement entered and agreed to resolve an indemnification obligation under this Section shall be deemed a direct damage.

7. Term and Termination

These Terms and Conditions shall commence on the Effective Date and shall continue until the earlier of (i) six (6) months after the date on which all SOWs 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 these Terms and Conditions and all SOWs are terminated pursuant to the provisions set forth in this Section below (the “Term”).  The term of each SOW will be set forth on the applicable SOW the (“SOW Term”).

Either party may terminate these Terms and Conditions if (i) the other party materially breaches any obligation under these Terms and Conditions and such default continues un-remedied for a period of thirty (30) days following receipt of written notice of the default from the non-breaching party, or (ii) either party commences insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the party; (iii) upon the making of an assignment for the benefit of creditors by the party; or (iv) upon the dissolution of the party. Either party may terminate a SOW if the other party materially breaches any obligation under the applicable SOW and such default continues un-remedied for a period of thirty (30) days following receipt of written notice of the default from the non-breaching party. 

Termination of a SOW shall not operate to terminate any other SOW or the Terms and Conditions. Termination of the Terms and Conditions shall operate to terminate all SOWs then in effect. Upon any termination of these Terms and Conditions or any SOW(s) for any reason, Client remains responsible for and shall immediately pay to Binary Defense all unpaid Service fees accrued or incurred as of such termination effective date. Additionally, upon any termination of these Terms and Conditions or any SOW(s), Client remains responsible for and shall immediately pay to Binary Defense all fees in relation to the Services as set forth under the SOW(s) for the remainder of the applicable SOW Term(s). Prepaid fees are not refundable.

8. Intellectual Property 

As between Client and Binary Defense, Binary Defense (or its respective licensors) owns and will own all right, title and interest in and to the (i) Services and related IP Rights therein; (ii) Aggregate Data (as defined below); and (iii) all of Binary Defense’s or its Affiliates’ Confidential Information (together (i) and (ii), referred to as “Binary Defense IP Rights”).  Except as otherwise expressly set forth in these Terms and Conditions, these Terms and Conditions do not, and the SOWs do not, transfer or convey to Client or any third party any right, title or interest in or to the Services, or any Binary Defense IP Rights. Client agrees that Binary Defense is the owner of all right, title and interest in all IP Rights in any work product designed, developed, created, or reduced to practice by or for Binary Defense, including but not limited to all inventions, methods, processes, and computer programs (e.g., any source code, object code, enhancements and modifications), designed, developed, created, or reduced to practice by or for Binary Defense before, during, or after the Term however and whenever conceived (collectively, “Binary Defense Works”), and Client hereby assigns, and covenants and agrees to assign, to Binary Defense all right, title and interest including, without limitation, all IP Rights that Client may have in and to all Binary Defense Works. Client may, whether or not formally requested, provide to Binary Defense suggestions, enhancements, comments, feedback, and other recommendations regarding the Services (collectively, “Feedback”). Binary Defense owns, and will own, all IP Rights in such Feedback and Client hereby assigns, and covenants and agrees to assign, to Binary Defense all right, title and interest including, without limitation, all IP Rights that Client may have in and to all Feedback.

9. Non-Solicitation

Client agrees that, during the Term and for a period of one (1) year after the termination or expiration of these Terms and Conditions, it will neither solicit for employment or contract, nor identify for solicitation for employment or contract by an Affiliate or third party on behalf of Client, any employee of Binary Defense of its Affiliates (collectively, the “Protected Party”) who was directly involved on behalf of the Protected Party in the execution or performance of the Protected Party’s obligations hereunder; provided however, it is understood that this employee non-solicitation provision shall not prohibit: (i) solicitation of any person who contacts the Client on his or her own initiative without direct solicitation by the Client or any other party on behalf of the Client; (ii) generalized solicitations by advertising and the like which are not directed to specific individuals or employees of the Protected Party; (iii) solicitations of persons whose employment was previously terminated by the Protected Party; or (iv) solicitations of persons who have terminated their employment with the Protected Party without any prior direct solicitation by the Client or any other party on behalf of the Client.

10. Confidentiality

A Party disclosing Confidential Information to the other Party is referred to in this MSA as the “Disclosing Party” and the Party receiving such Confidential Information is referred to as the “Receiving Party.” “Confidential Information” shall mean any non-public or proprietary information (including, without limitation, these Terms and Conditions and SOW(s)) disclosed by one Party to the other Party that is designated as confidential or proprietary or that the Receiving Party knows or reasonably should know is Confidential Information of the Disclosing Party, whether or not marked or identified as confidential or proprietary by the Disclosing Party. All Confidential Information will remain the respective Disclosing Party’s sole property. For clarity, Binary Defense’s Confidential Information shall include, without limitation, all files, business, financial and technical documentation and related materials of Binary Defense or its Affiliates obtained by Client in connection with these Terms and Conditions, whether or not marked confidential.

Each Party agrees to take the same care with the other Party’s Confidential Information as it takes to protect the confidentiality of its own Confidential Information, but in no event less than a reasonable degree of care.  Receiving Party shall take (and shall cause its employees, contractors, subcontractors, and permitted agents receiving the Disclosing Party’s Confidential Information to take) all steps reasonably required to avoid disclosure of Confidential Information in the Receiving Party’s possession to any third party, except with prior written consent of the Disclosing Party. Notwithstanding the foregoing, Receiving Party is permitted to disclose Confidential Information to its employee, contractors, subcontractors, and agents on a need to know basis as necessary to perform its obligations or exercise its rights under this Agreement. Receiving Party shall use the Disclosing Party’s Confidential Information only as necessary to perform its obligations or exercise its rights under these Terms and Conditions or SOW(s).  Receiving Party’s right to use the Disclosing Party’s Confidential Information expires upon expiration or termination of these Terms and Conditions, provided however, that the Receiving Party’s obligation to continue protecting the Disclosing Party’s Confidential Information survives termination or expiration for any reason. Receiving Party will be liable for all damages arising out of any third parties’ or employees’ access (whether authorized or unauthorized), disclosure or use of the Disclosing Party’s Confidential Information. If the Receiving Party has actual knowledge that Confidential Information of the Disclosing Party has been disclosed or accessed by an unauthorized party, the Receiving Party shall give the Disclosing Party prompt notice of such event in writing. 

The prohibitions contained in this Section 10 will not apply to information (i) already lawfully known to the Receiving Party without use of the Disclosing Party’s Confidential Information; (ii) disclosed in published materials in the public domain; (iii) lawfully obtained from any third party not under a duty of confidentiality to the Disclosing Party; or (v) independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. Receiving Party may disclose Confidential Information as required to comply with orders of governmental jurisdiction over it, if Receiving Party (a) unless prohibited from doing so, gives Disclosing Party prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy or approve the disclosure, as appropriate, (b) discloses only such Confidential Information as it is legally required to disclose, and (c) uses its best efforts to obtain confidential treatment for any Confidential Information so disclosed.  The Parties acknowledge that a breach of any of the confidentiality obligations in these Terms and Conditions may cause irreparable harm to the other Party and its business, as to which monetary damages may be difficult to ascertain or an inadequate remedy.  Each Party agrees that the other Party may have the right, in addition to its other rights and remedies, to seek injunctive relief for any violation of confidentiality obligations in these Terms and Conditions.

11. Miscellaneous

As used herein, the term “Affiliates” with respect to a party means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such party. Only those Affiliates who have signed separate SOWs with Binary Defense shall be permitted to receive Services under these Terms and Conditions (“Permitted Affiliates”). Client acknowledges and agrees that it is jointly and severally liable for any claims, liabilities or damages arising from its Affiliates.

Neither party may assign these Terms and Conditions, 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 these Terms and Conditions 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 these Terms and Conditions or is bound by these Terms and Conditions by operation of law. Any attempt to assign these Terms and Conditions in violation of this Section will be a material default of these Terms and Conditions and will be void.

These Terms and Conditions are governed by the laws of the State of Ohio, United States, without regard to or application of choice-of-law rules or principles.  The parties agree to submit to the exclusive jurisdiction of the courts having jurisdiction over Summit County, Ohio.

Neither party shall use the name, trademarks, or logo of the other in promotional materials, publicity releases, advertising, or any other similar publications or communications without the prior consent of the other party; however, Client consents to Binary Defense’s use of Client’s logo in Binary Defense’s marketing and presentation materials.

These Terms and Conditions, the SOWs, if any, all exhibits, addenda, and additional Service terms and conditions, and any other linked terms (including but not limited to the service levels and Data Processing Agreement, if required) constitute the entire agreement between Binary Defense and Client with respect to the Services in these Terms and Conditions, and all other agreements (including, without limitation, any non-disclosure agreements previously entered into between the Parties), representations, Client purchase orders, statements or other Client documents with respect to such subject matter (oral or written) are hereby superseded by these Terms and Conditions, and are subsequently rejected by Binary Defense and are superseded by these Terms and Conditions. Binary Defense rejects all Client purchase orders or other Client terms. In the event of a conflict, the SOW terms govern. Third Party Product terms are separate obligations between Client and the third party only, and do not interfere with or govern these Terms and Conditions or any other terms between Client and Binary Defense. If any provision of these Terms and Conditions is held by a court or other tribunal of competent jurisdiction to be unenforceable, that provision will be enforced to the maximum extent permissible under applicable law and the other provisions of these Terms and Conditions will remain in full force and effect to the maximum extent permissible under applicable law.

If Binary Defense is prevented from performing any of its obligations under these Terms and Conditions and/or an applicable SOW due to any cause beyond Binary Defense’s reasonable control, including, without limitation, an act of God, fire, flood, explosion, terrorism, disease, pandemic, war, embargo, government regulation, third party labor shortages, stoppages, or strikes, civil or military authority, acts or omissions of carriers, transmitters, providers, or acts of vandals, or hackers (each, a “force majeure event”), then the time for Binary Defense’s performance will be extended for the period of the delay or inability to perform due to such occurrence.

Binary Defense reserves the right to modify and make updates to these Terms and Conditions at any time. All changes will be effective immediately upon posting. Binary Defense will provide notice to Client of any material changes to these Terms and Conditions. No failure of Binary Defense to exercise or enforce any of its rights under these Terms and Conditions will act as a waiver of subsequent breaches and the waiver of any breach will not act as a waiver of subsequent breaches.

In the event that Client determines that personally identifying information could be disclosed to Binary Defense, the Parties agree that such disclosure, transfer, use and storage by Binary Defense will be governed by the Data Processing Agreement located at: https://www.binarydefense.com/terms/dpa