Terms of
Service

Effective Date: 21 Nov 2023

‍1. Agreement. The following Terms of Service (the "Terms") constitute a binding agreement between you and Banyan Storage Inc. ("Banyan" “we,” “our,” and “us”), the operator of the Banyan storage platform (the “Platform”). These Terms set forth conditions regarding your access to and use of the Platform. By accessing or using the Platform in any manner, you agree to be bound by these Terms.
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‍If you are entering into these Terms on behalf of an entity (an “Enterprise Customer”), all references to “you” in these Terms refer to the Enterprise Customer and you represent and warrant that you are a duly authorized representative with the authorization to act on behalf of the Enterprise Customer and bind the Enterprise Customer to these Terms. In addition, you acknowledge that these Terms include rights, restrictions and obligations on all users of the Platform, including individuals. You may use the Platform only in compliance with these Terms.

PLEASE NOTE THAT, EXCEPT AS PROVIDED BELOW, THESE TERMS REQUIRE RESOLUTION OF DISPUTES THROUGH USE OF AN ARBITRATION SERVICE. YOU HEREBY AGREE THAT ALL DISPUTES ARISING FROM, RELATED TO, OR IN CONNECTION WITH YOUR USE OF THE PLATFORM WILL BE RESOLVED IN ACCORDANCE WITH SECTION 22 BELOW.

2. Affiliated Users with Enterprise Customers.

2.1 If you are an individual user accessing the Platform because of your affiliation with an Enterprise Customer (an “Affiliated User”), you may access and use the Platform solely on behalf of the Enterprise Customer, and you agree to comply with these Terms to the extent they are applicable to Affiliated Users. If you are an Affiliated User for more than one Enterprise Customer, you may access and use the Platform on behalf of each Enterprise Customer, subject to your compliance with these Terms.

2.2 If you are an Enterprise Customer you shall ensure that your Affiliated Users comply with these Terms. Any action taken by an Affiliated User with respect to an Enterprise Customer’s account on the Platform will be deemed to be taken on behalf of the Enterprise Customer. As a result, each Enterprise Customer is responsible for any actions that its Affiliated Users take on behalf of the Enterprise Customer. In addition, any action taken by an Affiliated User that is a breach of these Terms will be deemed a breach of these Terms by the Enterprise Customer as well as by the Affiliated User.

3. Eligibility. You are only eligible to use the Platform if you pay the Subscription Fee (explained in Section 8) and you are at least 18 years old.

4. Modification. Banyan reserves the right, at its sole discretion, to modify these Terms at any time and without prior notice. The date of the last modification to the Terms will be posted at the beginning of these Terms. It is your responsibility to check from time to time for updates. By continuing to access or use the Platform, you are indicating that you agree to be bound by any modified Terms.

5. Privacy. Our collection, use, and disclosure of personal information as a result of your use of the Platform is governed by our Privacy Policy.

6. Account Registration. Each user of the Platform must create an account in order to use the Platform. You can create an account on the Platform by logging into your account with certain third-party platforms, like Google (each, a "Third Party Login Provider”). The Third Party Login Provider will determine what information we will be able to access and use. Your Banyan account will be created for your use of the Platform based on the personal information you provide us or that we obtain via the Third Party Login Provider. You are responsible for maintaining the confidentiality of your account and credentials, and are fully responsible for any and all activities that occur under your account. You agree to immediately notify Banyan of any unauthorized use of your account or any other breach of security. Banyan will not be liable for any loss or damage arising from your failure to comply with this section.

You may not transfer your account to anyone else without our prior written permission. If you would like us to terminate your account, please contact us at help@banyan.computer.

7. Drive Sharing. You will have the ability to share drives that you control with other users of the Platform. You are solely responsible for ensuring that you only share your drives with intended users. If you share any of your drives with unintended users, you acknowledge that Banyan has no control over that user’s access to and use of any content stored within the shared drives. YOU HEREBY RELEASE BANYAN AND ITS AFFILIATES FROM ANY AND ALL CLAIMS ARISING OUT OF OR RELATING TO YOUR SHARING OF DRIVES WITH OTHER PLATFORM USERS.

8. Payment and Automatic Renewal.

‍‍8.1 Subscription Fee. You must pay Banyan a monthly storage fee in order to use the Platform that varies depending on the amount of storage space you require (the “Subscription Fee”). Banyan will provide each user the details of the Subscription Fee prior to the user’s creation of an account, and will provide the user prior written notice of any changes to the Subscription Fee, including when the user chooses to upgrade or renew its account. By providing a credit card or other payment method, you represent and warrant that you are authorized to use the designated payment method and that you authorize Banyan (or Banyan’s third-party payment processor) to charge the designated payment method for the total amount of your Subscription Fee (including any applicable taxes and other charges). If the payment method cannot be verified, is invalid, or is otherwise not acceptable, your account may be suspended or canceled. You must resolve any problem Banyan (or Banyan’s third-party payment processor) encounters in order to continue your Banyan account. You acknowledge that the Subscription Fee may vary due to promotional offers, changes in the Platform, or changes in applicable taxes or other charges, and you authorize Banyan (or Banyan’s third-party payment processor) to charge the designated payment method for the corresponding amount. ‍

8.2 Automatic Renewal. Your subscription to the Platform will automatically renew on a monthly basis unless you cancel your subscription before the end of the then-current subscription period. Contact help@banyan.computer if you would like to cancel your subscription. The cancellation will take effect the day after the last day of the current subscription period. We do not provide refunds or credits for any partial subscription periods.‍‍

8.3 Enterprise Customer. If you are an Enterprise Customer and you wish to pay the Subscription Fee for your Affiliated Users, please contact Banyan at help@banyan.computer.‍

8.4 Cancellations and Refunds. You are not entitled to any refund in the event your account is terminated.‍‍

9. Acceptable Use. Banyan hereby grants you permission to access and use the Platform, provided such use is in compliance with these Terms, and you further specifically agree that your use will adhere to the following restrictions and obligations:

• You may only use the Platform for lawful activity. It is your responsibility to comply with all applicable local, state, and federal laws and regulations.
• You may only use the Platform for storage purposes, and not for any other purpose.
• You may only use the Platform as permitted by these Terms. You may not transfer your access to others or allow others to access the Platform through your own access.
• You may not decompile, reverse engineer, or otherwise attempt to obtain the source code or underlying ideas or information of or relating to the Platform.
• You may not submit, download, or share Customer Content unless you have the right to do so.
• You may not take any actions on the Platform with respect to Customer Content that may infringe, misappropriate, or otherwise violate the rights of any third party.
• You may not enter, store or transmit viruses, worms, or other malicious code within, through, to, or using the Platform.
• You may not defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection mechanisms in the Platform.
• You may not copy, rip, or capture any content encountered on the Platform. This includes bulk copying or "scraping" any portion of the Platform using a bot or other tool.
• You may not remove or obfuscate any product identification, copyright, or other proprietary notice from any element of the Platform or associated documentation.‍

10. Apple App Store Terms. If you use Banyan’s iPhone and iPad applications (collectively, the “Application”) available via the Apple, Inc. (“Apple”) App Store in order to access the Platform, the terms of this section apply to your use of the Application:

• Both you and Banyan acknowledge that the Terms are concluded between you and Banyan only, and not with Apple, and that Apple is not responsible for the Application or the Banyan Content;
• The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Platform for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Platform;
• You will only use the Application in connection with an Apple device that you own or control;
• You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
• In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
• You acknowledge and agree that Banyan, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
• You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Banyan, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
• You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
• Both you and Banyan acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
• Both you and Banyan acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.

11. Content. As between you and Banyan, you own all of the information and content you submit through the Platform (collectively, the “Customer Content”). Other than the Customer Content, Banyan owns all rights, title, and interest in and to the materials available through the Platform, including, but not limited to, text, graphics, data, articles, photos, images, videos, and illustrations (all of the foregoing except Customer Content, the “Banyan Content”).

You may not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, transmit, broadcast, or otherwise exploit the Banyan Content, except as necessary to access and use the Platform in accordance with these Terms.

To the extent you own any of the Customer Content that you submit to the Platform, you grant to Banyan a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, reproduce, transfer, display, transmit, and otherwise use such Customer Content, in any media, solely as necessary to provide the Platform to you. To the extent that Customer Content includes personal information, we will only disclose such information in the limited circumstances identified in our Privacy Policy.

To the extent you share Customer Content with other users on the Platform, you hereby grant those users the worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license to view, copy, reproduce, modify, distribute, and transfer the shared Customer Content.

You acknowledge and agree that you are solely responsible for Customer Content that you submit to the Platform. Accordingly, you represent and warrant that you have all rights, licenses, consents and releases that are necessary to grant to Banyan and to other users the licenses above.

Just as you are responsible for your Customer Content, other users on the Platform are responsible for the content they submit and create through the Platform (Collectively, “Other User Content”). YOU HEREBY RELEASE BANYAN FROM ANY AND ALL LIABILITY WHATSOEVER ARISING FROM OR RELATED TO YOUR CUSTOMER CONTENT AND OTHER USER CONTENT AND FOR ANY CONTROVERSIES, CLAIMS, SUITS, INJURIES, LOSS, HARM OR DAMAGES ARISING FROM OR RELATED TO DISPUTES, DEALINGS, OR INTERACTIONS BETWEEN YOU AND ANY OTHER PLATFORM USERS.

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12. Feedback. We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Platform (“Feedback”). You agree that Banyan has the right, but not the obligation, to use such Feedback without any obligation to provide you credit, royalty payment, or ownership interest in the changes to the Platform.‍

13. Notices of Copyright Infringement. Banyan respects copyright law and expects our users to do the same. In accordance with the Digital Millennium Copyright Act (“DMCA”) of 1998, the text of which may be found on the U.S. Copyright Office website at https://www.copyright.gov/legislation/dmca.pdf, Banyan will respond to claims of copyright infringement committed using the Platform that are reported to us, provided they meet the criteria below.

If you are a copyright owner, or a designated agent thereof, please report alleged copyright infringements taking place on or through the Platform by providing us the following information (the “Notice”):

a. the identity of the copyrighted work that you claim has been infringed, or, if multiple copyrighted works are covered by this Notice, a comprehensive list of the copyrighted works that you claim have been infringed;

b. the material that you claim is infringing, and information reasonably sufficient to permit us to locate the material, including at a minimum, the URL of the link shown on the Platform where such material may be found;

c. your mailing address, telephone number, and, if available, email address;

d, a statement that you have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law;

e. a statement that the information in this Notice is accurate and, under penalty of perjury, that you are the owner, or authorized to act on behalf of the owner, of the copyright or of an exclusive right under the copyright that is allegedly infringed; and

f. your full legal name and your electronic or physical signature.You may deliver this notice, with all items completed, to us, as follows:

WeWork ℅ Banyan

79 Madison, 8th Fl

New York, NY 10016

Upon receipt of the Notice as described above, Banyan will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Platform.

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14. Indemnification. You agree to indemnify and hold Banyan, its affiliates, and each of their officers, directors, agents, employees, and representatives (collectively, the “Indemnified Parties”) harmless from any losses, damages, or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (each, a “Claim”) made or brought against any of the Indemnified Parties by a third-party arising out of your breach (or your Affiliated Users’ breach) of these Terms or your violation (or your Affiliated Users’ violation) of any law or regulation. The Indemnified Parties may also participate in the defense of such actions by employing counsel at their own expense, without waiving your obligations to indemnify or defend.  You may not settle or compromise any claim or consent to the entry of any judgment to the extent that the judgment or settlement would prejudice or damage an Indemnified Party, without the prior written consent of the Indemnified Party.

15. Termination. Banyan may immediately and without notice terminate these Terms and disable access to the Platform for you (and, if applicable, your Affiliated Users) if Banyan determines, in its sole discretion, that (a) you or your Affiliated Users have breached these Terms, or (b) you or your Affiliated Users have violated applicable laws or regulations.

Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: Sections 11 (Content), 12 (Feedback), 14 (Indemnification), 16 (Disclaimer of Warranties), 17 (Limitation of Liability), 22 (Governing Law; Arbitration), and 23 (Entire Agreement).

16. Disclaimer of Warranties. YOU HEREBY ACKNOWLEDGE THAT YOU ARE USING THE PLATFORM AT YOUR OWN RISK. THE PLATFORM AND BANYAN CONTENT ARE PROVIDED "AS IS," AND BANYAN, ITS AFFILIATES, AND ITS THIRD-PARTY SERVICE PROVIDERS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, MERCHANTABILITY, UNINTERRUPTED OR ERROR-FREE OPERATION, AVAILABILITY, ACCURACY, COMPLETENESS, RELIABILITY, TIMELINESS, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND ANY OTHER WARRANTY, CONDITION, GUARANTEE, OR REPRESENTATION, WHETHER ORAL, IN WRITING, OR IN ELECTRONIC FORM. BANYAN, ITS AFFILIATES, AND ITS THIRD-PARTY SERVICE PROVIDERS DO NOT REPRESENT OR WARRANT THAT ACCESS TO THE PLATFORM WILL BE UNINTERRUPTED OR THAT THERE WILL BE NO FAILURES, ERRORS OR OMISSIONS, OR LOSS OF TRANSMITTED INFORMATION, OR THAT NO VIRUSES WILL BE TRANSMITTED THROUGH THE PLATFORM.

Because some states do not permit disclaimer of implied warranties, you may have additional rights under your local laws.

17. Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL BANYAN (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, INACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, OR (B) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE SUBSCRIPTION FEES YOU PAID TO BANYAN IN THE TWELVE MONTHS PRECEDING THE CLAIM.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.

18. Notices. Any notices or other communications permitted or required hereunder will be in writing and given by Banyan (a) via email (in each case, to the address that you provide) or (b) by posting to the website.

19. No Waiver. The failure of Banyan to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision.

20. Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without Banyan’s prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. Banyan may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors, and permitted assigns. Unless a person or entity is explicitly identified as a third-party beneficiary to these Terms, these Terms do not and are not intended to confer any rights or remedies upon any person or entity other than the parties.

21. Severability. If, for any reason, an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

22.Governing Law; Arbitration. The laws of the State of New York, without reference to its conflict of law rules or principles, shall govern these Terms and any dispute of any sort that might arise between you and Banyan with respect to these Terms. Any dispute arising from or relating to the subject matter of these Terms shall be finally settled in accordance with the Streamlined Arbitration Rules and Procedures (the “Rules”) of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Rules. The arbitration shall be held in the US county of your most recent physical address or, if there is no such US county, in New York County, New York. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of these Terms, the parties consent to exclusive jurisdiction and venue in the state or federal courts located in New York County, New York. YOU UNDERSTAND AND AGREE THAT BY ENTERING INTO THESE TERMS, YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

23. Entire Agreement. These Terms constitute the entire agreement between you and Banyan regarding your use of the Platform, and supersede all prior written or oral agreements.

24.Contact Us. If you have any questions about the Platform, please do not hesitate to contact us at help@banyan.computer.