Terms of Use

Binner Valuations, an Iowa limited liability company with an address at 5110 NW 66th Avenue,Johnston, IA, provides the software as a service, including all reports generated through use of the website at www.binnervaluations.com or through its mobile applications (collectively, the “Services”) on the terms and conditions set forth in these terms and conditions, the website terms of use, and privacy policy (collectively, the “Agreement”). By clicking, selecting, or otherwise indicating acceptance during the account set-up process, you accept this agreement and agree to be legally bound by its terms.

By indicating your acceptenace during the account set-up process, you represent and warrant that you are of legal age to enter into a binding agreement and if you are accepting on behalf of a corporation, governmental organization, or other legal entity, you have the right, power, and authority to enter into this agreement on behalf of such entity and to bind the entity to these terms. If you do not agree to the terms of this agreement, you must not use the Services.

1. Definitions.
   1. “Authorized User” means Customer and its affiliates’ employees, consultants, contractors, evaluators, appraisers, and agents who are authorized by Customer’s account administrator to access and use the Services under the rights granted to Customer pursuant to this Agreement.
   2. “Binner IP” means the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing.
   3. “Customer” means you and/or the corporation, financial institution, governmental organization, limited liability company, partnership, or other legal entity on whose behalf you are accepting this agreement.
   4. “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
   5. “Documentation” means the user manuals, handbooks, and guides relating to the Services provided by Binner to Customer either electronically or in hard copy form.
   6. “GLBA” means the Gramm-Leach Bliley Act, 15 U.S.C. Section 6801 et seq.
   7. “Inactive” means the status assigned by Binner to any account for which no Reports have been generated and finalized within the past six months.
   8. “Report” means the reports generated by Customer’s use of the Services.
2. Access and Use.
   1. Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Binner hereby grants Customer, for Customer’s internal use, a non-exclusive, non-transferable right to access and use the Services and to use the Documentation in connection with Customer’s use of the Services during the Term, solely for use by Authorized Users and within the limitations set forth in the plan selected by Customer. Customer may use downloaded and finalized Reports for any internal business purpose.
   2. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part (including through the screenshotting or other copying of Reports in progress to avoid incurring usage fees); (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, including the GLBA.
   3. Personally Identifiable Information. Customer acknowledges that the Services are not intended to process personally identifiable information of consumers. Customer shall not enter any personally identifiable information of consumers as part of the Customer Data.
   4. Reservation of Rights. Binner reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Binner IP.
   5. Suspension. Notwithstanding anything to the contrary in this Agreement, Binner may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: Binner reasonably determines that (A) there is a threat or attack on any of the Binner IP; (B) Customer’s or any Authorized User’s use of the Binner IP disrupts or poses a security risk to the Binner IP or to any other customer or vendor of Binner; (C) Customer, or any Authorized User, is using the Binner IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Binner’s provision of the Services to Customer or any Authorized User is prohibited by applicable law (any a “Service Suspension”). Binner shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Binner shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured.
   6. Audit Right. Binner reserves the right to monitor Customer’s usage of the Services for compliance with this Agreement. If in Binner’s reasonable business judgement such an audit determines that Customer’s use of the Services exceeds or otherwise attempts to circumvent the fee structure contemplated by this Agreement, Binner shall notify Customer of such excess usage and the Parties will negotiate in good faith a reasonable remedy. If the Parties are not able to resolve such excess usage within thirty (30) days, Binner may suspend or terminate Customer’s account.
3. Customer Responsibilities.
   1. General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.
4. Fees and Payment.
   1. General. Customer shall pay Binner the fees (“Fees”) in U.S. dollars associated with the plan or renewal plan selected by Customer through Binner’s third party payment processor. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Binner’s income. Binner may invoice any applicable taxes required by law separately from the Fees.
   2. Storage or Excess Fees. In addition to the Fees stated in Customer’s selected pricing plan, Binner reserves the right to charge an annual storage or other data transfer fee for any customer account that becomes Inactive or exceeds the allowed monthly data transfer limitation identified in Customer’s pricing plan.
5. Confidential Information.
   From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the effective date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
6. Intellectual Property Ownership; Feedback.
   1. Binner IP. Customer acknowledges that, as between Customer and Binner, Binner owns all right, title, and interest, including all intellectual property rights, in and to the Binner IP.
   2. Customer Data. Binner acknowledges that, as between Binner and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Binner a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Binner to provide the Services to Customer. Customer acknowledges that Binner may track and analyze the usage of the Services for purposes of assisting customers, security, and improving the Services and the user experience, provided that Confidential Information of Customer remains subject to Section 5. For example, Binner may use this information to help customers derive more value from Services, to understand and analyze trends, or to track which features are used most often in order to improve the Services. Additionally, Binner may use anonymous usage data on an aggregate basis in the normal course of operating its business.
   3. Feedback. If Customer or any of its Authorized Users sends or transmits any communications or materials to Binner by mail, email, telephone, or otherwise, suggesting or recommending changes to the Binner IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Binner is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Binner on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Binner is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Binner is not required to use any Feedback.
   4. Publicity. Notwithstanding anything to the contrary herein, Binner may make reasonable references to Customer on its website and marketing materials for the purpose of identifying Customer among Binner’s customers. Binner will comply with reasonable requests to remove such references if in Customer’s reasonable determination, such reference violates Customer’s established trademark or branding guidelines or tarnishes Customer’s reputation.
7. Limited Warranty and Warranty Disclaimer.
   1. Binner warrants that the Services will conform in all material respects to the then-current Documentation. Customer’s sole remedies and Binner’s sole liability under the limited warranty set forth in this Section 8(a) are for Binner to exercise commercially reasonable efforts to bring the Services into material compliance with the then-current Documentation. Binner does not make any representations or guarantees regarding uptime or availability of the Services.
   2. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, THE BINNER IP IS PROVIDED “AS IS” AND BINNER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BINNER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, BINNER MAKES NO WARRANTY OF ANY KIND THAT THE BINNER IP, OR ANY REPORTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8. Indemnification.
   1. Binner Indemnification. Binner shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights, provided that Customer promptly notifies Binner in writing of the claim, cooperates with Binner, and allows Binner sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Customer agrees to permit Binner, at Binner’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Binner determines that neither alternative is reasonably available, Binner may terminate this Agreement, in its entirety or with respect to the affected component or part, and issue a pro-rata refund of any pre-paid but unused Fees. This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Binner or authorized by Binner in writing; (B) modifications to the Services not made by Binner; or (C) Customer Data. THIS SECTION 8(a) SETS FORTH CUSTOMER’S SOLE REMEDIES AND BINNER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
   2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Binner’s option, defend Binner from and against any Losses resulting from any Third-Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights or otherwise violates any applicable law; (ii) based on the negligence or willful misconduct of Customer or its Authorized Users; or (iii) base don the use of the Services in any manner not authorized by this Agreement. Binner will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
9. Limitations of Liability.
   IN NO EVENT WILL BINNER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BINNER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL BINNER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO BINNER UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10. Term and Termination.
    1. Term. The term of this Agreement begins upon Customer’s acceptance of this agreement and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect until Customer has no remaining reports on its selected plan (the “Term”).
    2. Termination. In addition to any other express termination right set forth in this Agreement:
       1. Binner may terminate this Agreement, effective on written notice to Customer, if: (A) Customer’s payment method is rejected; or (B) Customer breaches any of its obligations under Section 2(b) or Section 5;
       2. Binner may terminate this Agreement for convenience at any time by providing Customer written notice and issuing a pro-rata refund of any Fees Customer pre-paid but has not used by the effective date of termination;
       3. Customer may terminate this Agreement for convenience at any time by providing Binner written notice, provided that Binner shall have no obligation to refund any prepaid Fees if Customer terminates under this Section 11(b)(iii).
       4. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
       5. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
    3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Binner IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Binner IP. No termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund, excep as set forth in Section 11(b)(iii).
    4. Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(b), 9, 10, and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
11. Miscellaneous.
    1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, the body of this Agreement shall take precedence.
    2. Notices. All notices hereunder must be in writing and addressed to Binner at the addresses set forth in this Agreement, or to Customer using the contact address entered into the account profile (or to such other address that may be designated by the Party giving notice in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
    3. Force Majeure. In no event shall Binner be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Binner’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
    4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Iowa without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Iowa. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted in the federal courts of the United States or the courts of the State of Iowa, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.
    7. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Binner, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    8. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
    9. US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
    10. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

CONTACT US

If you have questions or comments, please contact us at:

Binner Valuations, LLC.
5110 NW 66th Avenue
Johnston, IA, 50131
515-661-7252
info@binnervaluations.com