SOFTWARE LICENSE AGREEMENT
This SOFTWARE LICENSE AGREEMENT (this "Agreement") is entered into as of
January 7, 2020 (the "Effective Date") by and between BAM Technology Services Inc., a
Delaware corporation, on behalf of itself and its Affiliates ("BAM TRADING") and Binance
Holdings Limited, a company incorporated under the Laws of the Cayman Islands
("BINANCE"). As used in this Agreement, "Party" means either BAM TRADING, on the one
hand, or BINANCE, on the other hand, as appropriate, and "Parties" means BAM TRADING
and BINANCE, collectively.
WHEREAS, BINANCE owns a digital currency trading platform which it operates in
multiple countries;
WHEREAS, BAM TRADING, desires to obtain a license to the Licensed Software in
order to operate a digital currency trading platform for the U.S. market, and BINANCE desires to
grant such license; and
WHEREAS, concurrently with the execution of this Agreement, the Parties have entered
into that certain Master Services Agreement (the "Services Agreement") pursuant to which
BINANCE will host, support and maintain the Licensed Software, and develop enhancements to
the Licensed Software as requested by BAM TRADING.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:
1.
DEFINITIONS
Capitalized terms used in this Agreement will have the meanings set forth below.
Affiliates
means, with respect to any Party, any Person that directly, or
indirectly through one or more intermediaries, Controls, or is
Controlled by, or is under common Control with, such Party,
whether such Person is now in existence or hereafter formed.
The term "Control" and its derivatives means any of ( 1) the
possession, direct or indirect, of the power to direct or cause the
management and policies of a Person and (2) ownership of more
than 50 percent of the capital stock of a Person or, in the case of
a non-corporate Person, an equivalent interest.
Applicable Law
means (regardless of jurisdiction) any applicable (1) federal,
national, state and local laws, ordinances, regulations, orders,
statutory instrument, rules, treaties, codes of practice, guidance
notes, policy statements, customary laws, decrees, injunctions,
or judgments and (2) ruling, declaration, regulation,
requirement, request or interpretation issued by any (or any
l
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quasi-) regulatory, judicial, administrative or governmental body
or person.
Center
has the meaning set forth in Section 10.7.
Confidential
Information
has the meaning set forth in Section 5. 1.
Custom Enhancements
has the meaning set forth in the Services Agreement.
Deliverables
means the Licensed Software, Documentation, Custom
Enhancements and any other materials provided to BAM
TRADING by BINANCE under this Agreement.
Dispute
has the meaning set forth in Section 10.7.
Documentation
means all documentation and supportive literature which
explains the use or operation ot: or otherwise relates to, the
Licensed Software, including all proprietary user or operating
manuals, brochures or electronic text.
Electronic Message
means any communication made(]) by telephone, email or
other computer or electronic initiated transmission, (2) by any
other telegraphically transmitted means, or (3) otherwise over
any distance other than by physical delivery.
Intellectual Property
Rights
means all past, present, and future rights of the following types,
which may exist or be created under the Applicable Laws of any
jurisdiction in the world: ( 1) rights associated with works of
authorship, including exclusive exploitation rights, copyrights,
moral rights, and mask work rights; (2) trademark and trade
name rights and similar rights; (3) trade secret rights; (4) patents
and industrial property rights; (5) other proprietary rights in
intellectual property of every kind and nature; and (6) rights in
or relating to registrations, renewals, extensions, combinations,
divisions, and reissues of, and applications for, any of the rights
referred to in subsections ( l) through (5) of this sentence.
Licensed Software
means the compiled, machine-readable, and/or executable
version of BINANCE's proprietary software that comprises its
digital currency trading platform, as may be improved or
modified by BINAN CE, as more fully described in Exhibit A,
including all Maintenance Changes and Custom Enhancements
provided pursuant to this Agreement and the Services
Agreement.
Maintenance Changes
means ( 1) changes, bug fixes, updates, upgrades and
enhancements to existing functionality of the Licensed Software
to facilitate improvement in terms of efficiency and/or
performance of the Licensed Software and (2) new releases of
the Licensed Software.
2.
Malware
has the meaning set forth in Section 6.2(1).
Open Source License
means any license or other contractual obligation that requires,
as a condition of use, modification, or distribution of the covered
technology, that the covered technology or other technology
incorporated into, derived from, or distributed with the covered
technology (1) be disclosed or distributed as source code; (2) be
licensed by the user to third parties for the purpose of making or
distributing derivative works; or (3) be redistributable at no or
minimal charge. Open Source Licenses include licenses or
distribution models similar to any of the following: GNU' s
General Public License (GPL) or Lesser/Library GPL (LGPL);
the Artistic License (e.g., PERL); the Mozilla Public License;
the Netscape Public License; the Common Development and
Distribution License (CDDL); the Apache Software License;
and the Common Public License (CPL).
Open Source Sciftware
means software that is subject to an Open Source License.
Person
means an individual, partnership, corporation, limited liability
company, unincorporated organization, association, trust, joint
venture, joint stock company, a governmental agency (or
political subdivision thereof) or any other entity.
Rules
has the meaning set forth in Section 10.7.
Services Agreement
has the meaning set forth in the recitals.
Use
means load, execute, store, transmit, import, display, copy, and
prepare (and have prepared) derivative works.
LICENSE GRANT
2.
Grant of License to BAM TRADING.
(A)
BINANCE hereby grants to BAM TRADING a worldwide, non-exclusive,
perpetual, irrevocable (except as set forth in Section 8.2), non-transferable, fully paid-up,
royalty-free license, under all of BINANCE's Intellectual Property Rights, to Use the Licensed
Software and Documentation relating thereto in the furtherance of BAM TRADING's business
and operations.
(B)
BAM TRADING may sublicense the licenses granted in Section 2.l(A) to
(1) third parties, including BAM TRADING's contractors, consultants, outsourcers, service
providers and other similar parties, for the benefit of BAM TRADING, and (2) to any portion of
BAM TRADING's business that is divested by BAM TRADING, or the acquirer thereof, for the
benefit of such divested business.
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(C)
BAM TRADING may make copies of the Documentation as BAM
TRADING deems reasonably necessary or appropriate and may provide copies of the
Documentation to BAM TRADING's employees, contractors, customers, consultants, agents,
outsourcers, service providers and other similar parties as necessary for such parties to use the
Licensed Software to conduct BAM TRADING's business. BAM TRADING will also have the
right to copy and use the Documentation at any off-site location for back-up and recovery
purposes.
2.Limitations and Restrictions on License Rights. There will be no limitations or
restrictions on BAM TRADING's use of the Licensed Software pursuant to the licenses granted
in Section 2.1, including limitations or restrictions on (1) the use of the Licensed Software on
any CPU or other item of equipment regardless of size, and on any computer independent of the
number of processors within such computer or (2) the number of users that may access or use the
Licensed Software.
2.API License. BINANCE hereby grants to BAM TRADING, at no charge, a
worldwide, non-exclusive, perpetual, irrevocable (except as set forth in Section 8.2),
transferable, fully paid-up, royalty-free license to use any application programming interface
(API) for the Licensed Software. BAM TRADING may sublicense such license to the Persons
described in Section 2.l(B).
3.
THIRD PARTY SOFTWARE
The Licensed Software does not include any third party software or Open Source
Software other than such software listed in Exhibit A
4.
MAINTENANCE AND DEVELOPMENT
BAM TRADING's obligations with respect to maintenance and support of the Licensed
Software, including the development of Custom Enhancements, are set forth in the Services
Agreement.
5.
CONFIDENTIALITY
General. BAM TRADING AND BINANCE each acknowledge that they may be
furnished with, receive or otherwise have access to information of or concerning the other Party
that such Party considers to be confidential, a trade secret or otherwise restricted. As used in this
Agreement, "Confidential Information" will mean all information, in any form, furnished or
made available directly or indirectly by one Party to the other under this Agreement which is
marked confidential, restricted, or with a similar designation, or that, based on the type or nature
of the information and the circumstances of disclosure, should reasonably be understood by the
receiving Party to be confidential or proprietary. Confidential Information also will include,
whether or not marked as confidential (or with a similar designation), (A) all information
concerning the operations, affairs and businesses of the disclosing Party, the financial affairs of
the disclosing Party, and the relations of the disclosing Party with its customers, employees and
service providers; (B) software provided to the receiving Party by the disclosing Party and the
related Documentation; and (C) the terms and conditions of this Agreement.
5.
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5.
Obligations.
(A)
Subject to the licenses granted to BAM TRADING in this Agreement,
BAM TRADING AND BINANCE will each (1) hold Confidential Information received from
the other Party in confidence and, except as expressly pennitted by Section 5.2(B) or Section
5.2(C), or by the express, prior written approval of the disclosing Party in each instance, which
approval may be withheld or granted by the disclosing Party in its sole discretion, not provide,
disseminate, sell, assign, lease, transfer or otherwise dispose of, disclose to or make available
any Confidential Infonnation of the disclosing Party to any third party, (2) use the Confidential
Infonnation of the other Party only for performing its obligations or exercising its rights under
this Agreement, and (3) use at least the same degree of care as it employs to avoid unauthorized
disclosure of its own information, but in any event no less than commercially reasonable efforts,
to prevent disclosing to third parties the Confidential Jnfonnation of the other Party.
(B)
Subject to the licenses granted to BAM TRADING in this Agreement,
each Party may disclose Confidential Information of the other Party to its employees, directors,
attorneys, auditors, accountants, and subcontractors, provided that ( 1) the recipient has a need to
know the Confidential Information for purposes of performing his or her obligations under or
with respect to this Agreement or as otherwise naturally occurs in such person's scope of
responsibility and (2) such disclosure is made pursuant to obligations of confidentiality that are
no less stringent than those set forth in this Section 5.2.
(C)
A Party may disclose Confidential Information of the other Party under
compulsion of legal process by a court of competent jurisdiction or Applicable Law, provided
that, immediately upon receiving any such request and to the extent that it may legally do so,
such Party advises the other Party of the request prior to making such disclosure in order that the
other Party may interpose an objection to such disclosure, take action to assure confidential
handling of the Confidential Information, or take such other action as it deems appropriate to
protect the Confidential Information.
(D)
Upon a Party's request at any time and upon the termination of this
Agreement for any reason, the other Party will return or destroy, as such Party may direct, all
material in any medium that contains Confidential Information of such Party.
5.Exclusions. Section 5.2 will not apply to any pa1iicular information that the
receiving Party can demonstrate: (A) was, at the time of disclosure to it, in the public domain;
(B) after disclosure to it, was published or otherwise became part of the public domain through
no fault of the receiving Party; (C) was in the possession of the receiving Party at the time of
disclosure to it without any obligation of to restrict its further use or disclosure; (D) was received
after disclosure to it from a third party who had a lawful right to disclose such information to it
without any obligation to restrict its further use or disclosure; or (E) was independently
developed by the receiving Party without reference to Confidential Information of the furnishing
Party.
6.
REPRESENTATIONS, \V ARRANTIES AND ADDITIONAL COVENANTS
6.
Mutual Representations and Warranties. Each Party represents and warrants that:
(A)
it is duly incorporated or organized, validly existing and in good standing
under the laws of the state or country of its incorporation or organization; and
(B)
it has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement, and it has duly authorized the execution, delivery
and performance of this Agreement.
6.Additional BINANCE Representations, Warranties and Covenants. BINANCE
represents, warrants and covenants that:
(A)
the execution, delivery and performance of this Agreement by BINANCE
will not conflict with, result in a breach of, or constitute a default under any other agreement to
which BINAN CE is a party or by which BINANCE is bound;
(B)
the Licensed Software complies with, and will, for the duration of the
Services Agreement, comply with, the provisions, descriptions, and representations (including
perfonnance capabilities, accuracy, completeness, characteristics, specifications, configurations,
standards, functions and requirements) which are contained in the Documentation and Exhibit A;
(C)
BINAN CE is in compliance with, and will, for the duration of the Services
Agreement, comply with, all Applicable Laws governing BINANCE's obligations under this
Agreement, and has obtained and BINANCE will maintain all applicable permits and licenses
required of BINANCE in connection with its obligations under this Agreement;
(D)
the Licensed Software is in compliance with, and BINANCE will maintain
the Licensed Software so that it complies with, all Applicable Laws and in a manner so as not to
cause BAM TRADING to be in violation of any Applicable Laws;
(E)
there is no outstanding litigation, arbitrated matter or other dispute to
which BINANCE is a party which, if decided unfavorably to BINANCE, would reasonably be
expected to have a material adverse effect on BINANCE's ability to fulfill its obligations under
this Agreement;
(F)
the Licensed Software and Documentation do not and will not infringe or
misappropriate any third party's Intellectual Property Rights;
(G)
BINANCE will promptly notify BAM TRADING ifBINANCE learns of
any claim, pending or threatened, or any fact upon which a claim could be made, that asserts that
the Licensed Software or any Documentation may infringe upon any third party's Intellectual
Property Rights;
(H)
the Licensed Software does not include, and BINANCE will not include in
the Licensed Software, any third-party software without BAM TRADING's prior written
consent;
(I)
the Licensed Software does not include and viruses, Trojan horses, worms,
spyware, back doors, email bombs, malicious code or similar items (collectively, "Malware"),
and BINANCE will ensure that no Malware is coded or introduced by BINANCE into the
Licensed Software, and will use best efforts to prevent Malware from being introduced by third
parties into the Licensed Software. In the event that Malware is found to have been introduced
into the Licensed Software, BINANCE will promptly remove, and mitigate the effects of, the
Malware and restore any affected data; and
(J)
the Licensed Software does not include any code that is designed and
intended to disable or otherwise shut down all or any portion of any Licensed Software, and
PARTY B will ensure that no such code is coded or introduced into the Licensed Software.
6.Disclaimer. EXCEPT AS SPECIFIED IN THIS AGREEMENT, THE
SERVICES AGREEMENT AND THE DOCUMENTATION, NEITHER PARTY MAKES
ANY WARRANTIES AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.
LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO DAMAGES ARISING FROM BREACH OF SECTION
5 OR SECTION 6, AND A PARTY'S FRAUD, GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING
BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), WILL A
PARTY BE LIABLE FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE
OR SPECIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.
TERMINATION
8.Termination by BAM TRADING. BAM TRADING may terminate this
Agreement upon a notice sent to BINANCE.
8.Termination by BINANCE. BINANCE may only tern1inate this Agreement if
BAM TRADING materially breaches Section 2.1, and fails to cure such breach within 60 days
following BAM TRADING's receipt of notice of such breach from BAM TRADING or if
termination is required by Applicable Laws.
8.Survival. The provisions of Section l, Section 5, Section 7, this Section 8 .3,
Section 9, and Section 10, as well as any other provision of this Agreement that contemplates
performance or observance subsequent to termination of this Agreement will survive termination
of this Agreement and continue in full force and effect.
9.
NOTICES
All notices given hereunder will be signed by or on behalf of the Party giving them and
given by sending the same by (A) prepaid recognized commercial courier (e.g., DHL), or (B) an
Electronic Message confirmed by a signed copy sent that same business day by prepaid first
class post (e.g., United States mail) or by prepaid commercial courier. Any notice sent by post
or by prepaid commercial courier as provided in this Section 9 will be deemed to have been
given five business days after being sent and any notice sent by email shall be deemed to have
been given upon dispatching if confirmation of transmission is received. Evidence that the
notice was properly addressed, stamped and posted shall be presumptive evidence of posting. A
notice received outside business hours (9:30 a.m. to 4:00 p.m. Pacific time on a business day)
will be considered received when business hours resume. All notices to the Parties will be
validly sent to the relevant address set out above. Notices given hereunder may be given in such
manner as the sender and the recipient may agree in writing from time to time.
10.
MISCELLANEOUS
10.1 Counterparts. This Agreement may be executed in multiple counterparts, each of
which will be deemed an original but all of which taken together will constitute one and the same
instrument.
10.2 Amendment. Any amendment to this Agreement must be agreed in writing and
be signed by all the Parties. Unless otherwise agreed, an amendment will not affect any legal
rights or obligations which may already have arisen.
10.3 Binding Nature and Assignment. This Agreement will be binding on and will
inure to the benefit of the Parties and each of their successors and assigns. Neither Party may, or
will have the power to, assign this Agreement without the prior written consent of the other,
except that BAM TRADING may assign its rights and obligations under this Agreement without
the approval ofBINANCE, to an entity that acquires all or substantially all of the assets of BAM
TRADING, to an Affiliate, or to a successor in a merger or acquisition of BAM TRADING.
10.4 Entire Agreement. This Agreement, including all Exhibits attached hereto,
constitutes the entire understanding and agreement of the Parties. If any provision herein is
determined to be void or unenforceable in whole or in part for any reason whatsoever, such
unenforceability or invalidity will not affect the enforceability or validity of the remaining
provisions or parts contained in this Agreement and such void or enforceable provisions will be
deemed to be severable from any other provisions or parts herein contained.
10.5 Interpretation. In this Agreement, unless the context otherwise requires, (A)
words importing the singular shall include the plural and vice versa and words importing the
masculine gender shall include the feminine and the neuter and vice versa; (B) references to
Sections and Exhibits are to Sections of and Exhibits to this Agreement; (C) a reference to
"including" means including without limiting the generality of any description preceding such
term and any general statement followed by or referable to an enumeration of specific matters
shall not be limited to matters similar to those specifically mentioned; (D) references to any
enactment shall be deemed to include references to such enactment as re-enacted, amended,
supplemented, restated or extended from time to time; and (E) where any expression is defined
or the interpretation of it is set out herein, other parts of speech of such expression shall have a
corresponding meaning References to and the use of the word "days" will mean calendar days,
unless otherwise specified. The Section headings are used for convenience only and will not
affect the construction or interpretation of this Agreement. The Exhibit forms part of this
Agreement and will have the same force and effect as if it was expressly set out in the body of
this Agreement and any reference to this Agreement will include the Exhibit.
10.6 Governing Law. The validity, interpretation, construction and performance of
this Agreement will be governed by the laws of the State ofNew York without regard to the
choice of law principles thereof.
10.7 Arbitration. Without limiting the right of a Party to seek specific perfonnance,
injunctive relief or any other equitable remedy in connection with any alleged breach of Section
5, any dispute, controversy or claim arising out of or relating to this Agreement or its subject
matter (including a dispute regarding the existence, validity, formation, effect, interpretation,
perforn1ance or tern1ination of this Agreement) (each, a "Dispute") will be finally settled by
arbitration. The place of arbitration will be Hong Kong, and the arbitration will be administered
by the Hong Kong International Arbitration Centre (the "Center") in accordance with the
Center's Administered Arbitration Rules in force when the notice of arbitration is submitted (the
"Rules"). The arbitration will be decided by a tribunal of three arbitrators to be appointed in
accordance with the Rules. Arbitration proceedings (including any arbitral award rendered) will
be in English. The tribunal will decide any dispute submitted by the Parties strictly in
accordance with the substantive law of the State of New York and will not apply any other
substantive law. Subject to the agreement of the tribunal, any Dispute(s) which arise subsequent
to the commencement of arbitration of any existing Dispute(s) will be resolved by the tribunal
already appointed to hear the existing Dispute(s). The award of the arbitration tribunal will be
final and conclusive and binding upon the Parties as from the date rendered. Judgment upon any
award may be entered and enforced in any court having jurisdiction over a party or any of its
assets. For the purpose of enforcing this agreement to arbitrate, the Parties irrevocably and
unconditionally submit to the jurisdiction of the courts of Hong Kong and waive any defenses to
such enforcement based on lack of personal jurisdiction or inconvenient forum. For the purpose
of enforcement of an award, the Parties irrevocably and unconditionally waive any defense of
inconvenient forum in any court of competent jurisdiction.
10.8 Waiver of Default. No waiver by any Party of any of the provisions of this
Agreement will be effective unless explicitly set forth in writing and signed by the Party so
waiving. No waiver by any Party will operate or be construed as a waiver in respect of any
failure, breach or default not expressly identified by such written waiver, whether of a similar or
different character, and whether occurring before or after that waiver. No failure to exercise, or
delay in exercising, any right, remedy, power or privilege arising from this Agreement will
operate or be construed as a waiver thereof, nor will any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
10.9 Export Controls. The Parties acknowledge that the Deliverables may be subject
to export controls under the Applicable Laws of the United States and other countries. Without
limiting the Parties' other obligations under this Agreement, neither Party will export or reexport any such items or any direct product thereof or undertake any transaction in violation of
any Applicable Laws. BINANCE will be responsible for, and will coordinate and oversee,
compliance with such Applicable Laws in respect of such items exported or imported hereunder.
IN WITNESS WHEREOF, BAM TRADING AND BINANCE have each caused this
Agreement to be signed and delivered by its duly authorized officer, all as of the Effective Date.
BAM TRADING SERVICES INC.
BINANCE HOLDINGS LIMITED
Catherine Coley
Changpeng Zhao
Name
Name
CEO
l/7 /
CEO
l/7 /
Title
Date
Title
Date
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Exhibit A
Specifications
BINANCE's digital currency trading platform consisting of the following modules, as may be
modified or improved from time to time:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Digital currency exchange platfonn;
Matching engine;
Digital currency wallet services;
Android mobile application;
iOS mobile application;
"MIS" management console;]
User center;
Risk control center; and
And all other related pages, components, modules, scripts, programs and software in
support of the foregoing modules.
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SOFTWARE LICENSE AGREEMENT
This SOFTWARE LICENSE AGREEMENT (this "Agreement") is entered into as of
January 7, 2020 (the "Effective Date") by and between BAM Technology Services Inc., a
Delaware corporation, on behalf of itself and its Affiliates ("BAM TRADING") and Binance
Holdings Limited, a company incorporated under the Laws of the Cayman Islands
("BINANCE"). As used in this Agreement, "Party" means either BAM TRADING, on the one
hand, or BINANCE, on the other hand, as appropriate, and "Parties" means BAM TRADING
and BINANCE, collectively.
WHEREAS, BINANCE owns a digital currency trading platform which it operates in
multiple countries;
WHEREAS, BAM TRADING, desires to obtain a license to the Licensed Software in
order to operate a digital currency trading platform for the U.S. market, and BINANCE desires to
grant such license; and
WHEREAS, concurrently with the execution of this Agreement, the Parties have entered
into that certain Master Services Agreement (the "Services Agreement") pursuant to which
BINANCE will host, support and maintain the Licensed Software, and develop enhancements to
the Licensed Software as requested by BAM TRADING.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and other good and valuable consideration, the receipt and
sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:
1.
DEFINITIONS
Capitalized terms used in this Agreement will have the meanings set forth below.
Affiliates
means, with respect to any Party, any Person that directly, or
indirectly through one or more intermediaries, Controls, or is
Controlled by, or is under common Control with, such Party,
whether such Person is now in existence or hereafter formed.
The term "Control" and its derivatives means any of ( 1) the
possession, direct or indirect, of the power to direct or cause the
management and policies of a Person and (2) ownership of more
than 50 percent of the capital stock of a Person or, in the case of
a non-corporate Person, an equivalent interest.
Applicable Law
means (regardless of jurisdiction) any applicable (1) federal,
national, state and local laws, ordinances, regulations, orders,
statutory instrument, rules, treaties, codes of practice, guidance
notes, policy statements, customary laws, decrees, injunctions,
or judgments and (2) ruling, declaration, regulation,
requirement, request or interpretation issued by any (or any
l
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quasi-) regulatory, judicial, administrative or governmental body
or person.
Center
has the meaning set forth in Section 10.7.
Confidential
Information
has the meaning set forth in Section 5. 1.
Custom Enhancements
has the meaning set forth in the Services Agreement.
Deliverables
means the Licensed Software, Documentation, Custom
Enhancements and any other materials provided to BAM
TRADING by BINANCE under this Agreement.
Dispute
has the meaning set forth in Section 10.7.
Documentation
means all documentation and supportive literature which
explains the use or operation ot: or otherwise relates to, the
Licensed Software, including all proprietary user or operating
manuals, brochures or electronic text.
Electronic Message
means any communication made(]) by telephone, email or
other computer or electronic initiated transmission, (2) by any
other telegraphically transmitted means, or (3) otherwise over
any distance other than by physical delivery.
Intellectual Property
Rights
means all past, present, and future rights of the following types,
which may exist or be created under the Applicable Laws of any
jurisdiction in the world: ( 1) rights associated with works of
authorship, including exclusive exploitation rights, copyrights,
moral rights, and mask work rights; (2) trademark and trade
name rights and similar rights; (3) trade secret rights; (4) patents
and industrial property rights; (5) other proprietary rights in
intellectual property of every kind and nature; and (6) rights in
or relating to registrations, renewals, extensions, combinations,
divisions, and reissues of, and applications for, any of the rights
referred to in subsections ( l) through (5) of this sentence.
Licensed Software
means the compiled, machine-readable, and/or executable
version of BINANCE's proprietary software that comprises its
digital currency trading platform, as may be improved or
modified by BINAN CE, as more fully described in Exhibit A,
including all Maintenance Changes and Custom Enhancements
provided pursuant to this Agreement and the Services
Agreement.
Maintenance Changes
means ( 1) changes, bug fixes, updates, upgrades and
enhancements to existing functionality of the Licensed Software
to facilitate improvement in terms of efficiency and/or
2
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performance of the Licensed Software and (2) new releases of
the Licensed Software.
2.
Malware
has the meaning set forth in Section 6.2(1).
Open Source License
means any license or other contractual obligation that requires,
as a condition of use, modification, or distribution of the covered
technology, that the covered technology or other technology
incorporated into, derived from, or distributed with the covered
technology (1) be disclosed or distributed as source code; (2) be
licensed by the user to third parties for the purpose of making or
distributing derivative works; or (3) be redistributable at no or
minimal charge. Open Source Licenses include licenses or
distribution models similar to any of the following: GNU' s
General Public License (GPL) or Lesser/Library GPL (LGPL);
the Artistic License (e.g., PERL); the Mozilla Public License;
the Netscape Public License; the Common Development and
Distribution License (CDDL); the Apache Software License;
and the Common Public License (CPL).
Open Source Sciftware
means software that is subject to an Open Source License.
Person
means an individual, partnership, corporation, limited liability
company, unincorporated organization, association, trust, joint
venture, joint stock company, a governmental agency (or
political subdivision thereof) or any other entity.
Rules
has the meaning set forth in Section 10.7.
Services Agreement
has the meaning set forth in the recitals.
Use
means load, execute, store, transmit, import, display, copy, and
prepare (and have prepared) derivative works.
LICENSE GRANT
2.1
Grant of License to BAM TRADING.
(A)
BINANCE hereby grants to BAM TRADING a worldwide, non-exclusive,
perpetual, irrevocable (except as set forth in Section 8.2), non-transferable, fully paid-up,
royalty-free license, under all of BINANCE's Intellectual Property Rights, to Use the Licensed
Software and Documentation relating thereto in the furtherance of BAM TRADING's business
and operations.
(B)
BAM TRADING may sublicense the licenses granted in Section 2.l(A) to
(1) third parties, including BAM TRADING's contractors, consultants, outsourcers, service
providers and other similar parties, for the benefit of BAM TRADING, and (2) to any portion of
BAM TRADING's business that is divested by BAM TRADING, or the acquirer thereof, for the
benefit of such divested business.
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(C)
BAM TRADING may make copies of the Documentation as BAM
TRADING deems reasonably necessary or appropriate and may provide copies of the
Documentation to BAM TRADING's employees, contractors, customers, consultants, agents,
outsourcers, service providers and other similar parties as necessary for such parties to use the
Licensed Software to conduct BAM TRADING's business. BAM TRADING will also have the
right to copy and use the Documentation at any off-site location for back-up and recovery
purposes.
2.2
Limitations and Restrictions on License Rights. There will be no limitations or
restrictions on BAM TRADING's use of the Licensed Software pursuant to the licenses granted
in Section 2.1, including limitations or restrictions on (1) the use of the Licensed Software on
any CPU or other item of equipment regardless of size, and on any computer independent of the
number of processors within such computer or (2) the number of users that may access or use the
Licensed Software.
2.3
API License. BINANCE hereby grants to BAM TRADING, at no charge, a
worldwide, non-exclusive, perpetual, irrevocable (except as set forth in Section 8.2),
transferable, fully paid-up, royalty-free license to use any application programming interface
(API) for the Licensed Software. BAM TRADING may sublicense such license to the Persons
described in Section 2.l(B).
3.
THIRD PARTY SOFTWARE
The Licensed Software does not include any third party software or Open Source
Software other than such software listed in Exhibit A
4.
MAINTENANCE AND DEVELOPMENT
BAM TRADING's obligations with respect to maintenance and support of the Licensed
Software, including the development of Custom Enhancements, are set forth in the Services
Agreement.
5.
CONFIDENTIALITY
General. BAM TRADING AND BINANCE each acknowledge that they may be
furnished with, receive or otherwise have access to information of or concerning the other Party
that such Party considers to be confidential, a trade secret or otherwise restricted. As used in this
Agreement, "Confidential Information" will mean all information, in any form, furnished or
made available directly or indirectly by one Party to the other under this Agreement which is
marked confidential, restricted, or with a similar designation, or that, based on the type or nature
of the information and the circumstances of disclosure, should reasonably be understood by the
receiving Party to be confidential or proprietary. Confidential Information also will include,
whether or not marked as confidential (or with a similar designation), (A) all information
concerning the operations, affairs and businesses of the disclosing Party, the financial affairs of
the disclosing Party, and the relations of the disclosing Party with its customers, employees and
service providers; (B) software provided to the receiving Party by the disclosing Party and the
related Documentation; and (C) the terms and conditions of this Agreement.
5.1
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5.2
Obligations.
(A)
Subject to the licenses granted to BAM TRADING in this Agreement,
BAM TRADING AND BINANCE will each (1) hold Confidential Information received from
the other Party in confidence and, except as expressly pennitted by Section 5.2(B) or Section
5.2(C), or by the express, prior written approval of the disclosing Party in each instance, which
approval may be withheld or granted by the disclosing Party in its sole discretion, not provide,
disseminate, sell, assign, lease, transfer or otherwise dispose of, disclose to or make available
any Confidential Infonnation of the disclosing Party to any third party, (2) use the Confidential
Infonnation of the other Party only for performing its obligations or exercising its rights under
this Agreement, and (3) use at least the same degree of care as it employs to avoid unauthorized
disclosure of its own information, but in any event no less than commercially reasonable efforts,
to prevent disclosing to third parties the Confidential Jnfonnation of the other Party.
(B)
Subject to the licenses granted to BAM TRADING in this Agreement,
each Party may disclose Confidential Information of the other Party to its employees, directors,
attorneys, auditors, accountants, and subcontractors, provided that ( 1) the recipient has a need to
know the Confidential Information for purposes of performing his or her obligations under or
with respect to this Agreement or as otherwise naturally occurs in such person's scope of
responsibility and (2) such disclosure is made pursuant to obligations of confidentiality that are
no less stringent than those set forth in this Section 5.2.
(C)
A Party may disclose Confidential Information of the other Party under
compulsion of legal process by a court of competent jurisdiction or Applicable Law, provided
that, immediately upon receiving any such request and to the extent that it may legally do so,
such Party advises the other Party of the request prior to making such disclosure in order that the
other Party may interpose an objection to such disclosure, take action to assure confidential
handling of the Confidential Information, or take such other action as it deems appropriate to
protect the Confidential Information.
(D)
Upon a Party's request at any time and upon the termination of this
Agreement for any reason, the other Party will return or destroy, as such Party may direct, all
material in any medium that contains Confidential Information of such Party.
5.3
Exclusions. Section 5.2 will not apply to any pa1iicular information that the
receiving Party can demonstrate: (A) was, at the time of disclosure to it, in the public domain;
(B) after disclosure to it, was published or otherwise became part of the public domain through
no fault of the receiving Party; (C) was in the possession of the receiving Party at the time of
disclosure to it without any obligation of to restrict its further use or disclosure; (D) was received
after disclosure to it from a third party who had a lawful right to disclose such information to it
without any obligation to restrict its further use or disclosure; or (E) was independently
developed by the receiving Party without reference to Confidential Information of the furnishing
Party.
6.
REPRESENTATIONS, \V ARRANTIES AND ADDITIONAL COVENANTS
6.1
Mutual Representations and Warranties. Each Party represents and warrants that:
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(A)
it is duly incorporated or organized, validly existing and in good standing
under the laws of the state or country of its incorporation or organization; and
(B)
it has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement, and it has duly authorized the execution, delivery
and performance of this Agreement.
6.2
Additional BINANCE Representations, Warranties and Covenants. BINANCE
represents, warrants and covenants that:
(A)
the execution, delivery and performance of this Agreement by BINANCE
will not conflict with, result in a breach of, or constitute a default under any other agreement to
which BINAN CE is a party or by which BINANCE is bound;
(B)
the Licensed Software complies with, and will, for the duration of the
Services Agreement, comply with, the provisions, descriptions, and representations (including
perfonnance capabilities, accuracy, completeness, characteristics, specifications, configurations,
standards, functions and requirements) which are contained in the Documentation and Exhibit A;
(C)
BINAN CE is in compliance with, and will, for the duration of the Services
Agreement, comply with, all Applicable Laws governing BINANCE's obligations under this
Agreement, and has obtained and BINANCE will maintain all applicable permits and licenses
required of BINANCE in connection with its obligations under this Agreement;
(D)
the Licensed Software is in compliance with, and BINANCE will maintain
the Licensed Software so that it complies with, all Applicable Laws and in a manner so as not to
cause BAM TRADING to be in violation of any Applicable Laws;
(E)
there is no outstanding litigation, arbitrated matter or other dispute to
which BINANCE is a party which, if decided unfavorably to BINANCE, would reasonably be
expected to have a material adverse effect on BINANCE's ability to fulfill its obligations under
this Agreement;
(F)
the Licensed Software and Documentation do not and will not infringe or
misappropriate any third party's Intellectual Property Rights;
(G)
BINANCE will promptly notify BAM TRADING ifBINANCE learns of
any claim, pending or threatened, or any fact upon which a claim could be made, that asserts that
the Licensed Software or any Documentation may infringe upon any third party's Intellectual
Property Rights;
(H)
the Licensed Software does not include, and BINANCE will not include in
the Licensed Software, any third-party software without BAM TRADING's prior written
consent;
(I)
the Licensed Software does not include and viruses, Trojan horses, worms,
spyware, back doors, email bombs, malicious code or similar items (collectively, "Malware"),
and BINANCE will ensure that no Malware is coded or introduced by BINANCE into the
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Licensed Software, and will use best efforts to prevent Malware from being introduced by third
parties into the Licensed Software. In the event that Malware is found to have been introduced
into the Licensed Software, BINANCE will promptly remove, and mitigate the effects of, the
Malware and restore any affected data; and
(J)
the Licensed Software does not include any code that is designed and
intended to disable or otherwise shut down all or any portion of any Licensed Software, and
PARTY B will ensure that no such code is coded or introduced into the Licensed Software.
6.3
Disclaimer. EXCEPT AS SPECIFIED IN THIS AGREEMENT, THE
SERVICES AGREEMENT AND THE DOCUMENTATION, NEITHER PARTY MAKES
ANY WARRANTIES AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7.
LIMITATION OF LIABILITY
EXCEPT WITH RESPECT TO DAMAGES ARISING FROM BREACH OF SECTION
5 OR SECTION 6, AND A PARTY'S FRAUD, GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT, IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING
BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), WILL A
PARTY BE LIABLE FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE
OR SPECIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
8.
TERMINATION
8.1
Termination by BAM TRADING. BAM TRADING may terminate this
Agreement upon a notice sent to BINANCE.
8.2
Termination by BINANCE. BINANCE may only tern1inate this Agreement if
BAM TRADING materially breaches Section 2.1, and fails to cure such breach within 60 days
following BAM TRADING's receipt of notice of such breach from BAM TRADING or if
termination is required by Applicable Laws.
8.3
Survival. The provisions of Section l, Section 5, Section 7, this Section 8 .3,
Section 9, and Section 10, as well as any other provision of this Agreement that contemplates
performance or observance subsequent to termination of this Agreement will survive termination
of this Agreement and continue in full force and effect.
9.
NOTICES
All notices given hereunder will be signed by or on behalf of the Party giving them and
given by sending the same by (A) prepaid recognized commercial courier (e.g., DHL), or (B) an
Electronic Message confirmed by a signed copy sent that same business day by prepaid first
class post (e.g., United States mail) or by prepaid commercial courier. Any notice sent by post
or by prepaid commercial courier as provided in this Section 9 will be deemed to have been
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given five business days after being sent and any notice sent by email shall be deemed to have
been given upon dispatching if confirmation of transmission is received. Evidence that the
notice was properly addressed, stamped and posted shall be presumptive evidence of posting. A
notice received outside business hours (9:30 a.m. to 4:00 p.m. Pacific time on a business day)
will be considered received when business hours resume. All notices to the Parties will be
validly sent to the relevant address set out above. Notices given hereunder may be given in such
manner as the sender and the recipient may agree in writing from time to time.
10.
MISCELLANEOUS
10.1 Counterparts. This Agreement may be executed in multiple counterparts, each of
which will be deemed an original but all of which taken together will constitute one and the same
instrument.
10.2 Amendment. Any amendment to this Agreement must be agreed in writing and
be signed by all the Parties. Unless otherwise agreed, an amendment will not affect any legal
rights or obligations which may already have arisen.
10.3 Binding Nature and Assignment. This Agreement will be binding on and will
inure to the benefit of the Parties and each of their successors and assigns. Neither Party may, or
will have the power to, assign this Agreement without the prior written consent of the other,
except that BAM TRADING may assign its rights and obligations under this Agreement without
the approval ofBINANCE, to an entity that acquires all or substantially all of the assets of BAM
TRADING, to an Affiliate, or to a successor in a merger or acquisition of BAM TRADING.
10.4 Entire Agreement. This Agreement, including all Exhibits attached hereto,
constitutes the entire understanding and agreement of the Parties. If any provision herein is
determined to be void or unenforceable in whole or in part for any reason whatsoever, such
unenforceability or invalidity will not affect the enforceability or validity of the remaining
provisions or parts contained in this Agreement and such void or enforceable provisions will be
deemed to be severable from any other provisions or parts herein contained.
10.5 Interpretation. In this Agreement, unless the context otherwise requires, (A)
words importing the singular shall include the plural and vice versa and words importing the
masculine gender shall include the feminine and the neuter and vice versa; (B) references to
Sections and Exhibits are to Sections of and Exhibits to this Agreement; (C) a reference to
"including" means including without limiting the generality of any description preceding such
term and any general statement followed by or referable to an enumeration of specific matters
shall not be limited to matters similar to those specifically mentioned; (D) references to any
enactment shall be deemed to include references to such enactment as re-enacted, amended,
supplemented, restated or extended from time to time; and (E) where any expression is defined
or the interpretation of it is set out herein, other parts of speech of such expression shall have a
corresponding meaning References to and the use of the word "days" will mean calendar days,
unless otherwise specified. The Section headings are used for convenience only and will not
affect the construction or interpretation of this Agreement. The Exhibit forms part of this
Agreement and will have the same force and effect as if it was expressly set out in the body of
this Agreement and any reference to this Agreement will include the Exhibit.
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10.6 Governing Law. The validity, interpretation, construction and performance of
this Agreement will be governed by the laws of the State ofNew York without regard to the
choice of law principles thereof.
10.7 Arbitration. Without limiting the right of a Party to seek specific perfonnance,
injunctive relief or any other equitable remedy in connection with any alleged breach of Section
5, any dispute, controversy or claim arising out of or relating to this Agreement or its subject
matter (including a dispute regarding the existence, validity, formation, effect, interpretation,
perforn1ance or tern1ination of this Agreement) (each, a "Dispute") will be finally settled by
arbitration. The place of arbitration will be Hong Kong, and the arbitration will be administered
by the Hong Kong International Arbitration Centre (the "Center") in accordance with the
Center's Administered Arbitration Rules in force when the notice of arbitration is submitted (the
"Rules"). The arbitration will be decided by a tribunal of three arbitrators to be appointed in
accordance with the Rules. Arbitration proceedings (including any arbitral award rendered) will
be in English. The tribunal will decide any dispute submitted by the Parties strictly in
accordance with the substantive law of the State of New York and will not apply any other
substantive law. Subject to the agreement of the tribunal, any Dispute(s) which arise subsequent
to the commencement of arbitration of any existing Dispute(s) will be resolved by the tribunal
already appointed to hear the existing Dispute(s). The award of the arbitration tribunal will be
final and conclusive and binding upon the Parties as from the date rendered. Judgment upon any
award may be entered and enforced in any court having jurisdiction over a party or any of its
assets. For the purpose of enforcing this agreement to arbitrate, the Parties irrevocably and
unconditionally submit to the jurisdiction of the courts of Hong Kong and waive any defenses to
such enforcement based on lack of personal jurisdiction or inconvenient forum. For the purpose
of enforcement of an award, the Parties irrevocably and unconditionally waive any defense of
inconvenient forum in any court of competent jurisdiction.
10.8 Waiver of Default. No waiver by any Party of any of the provisions of this
Agreement will be effective unless explicitly set forth in writing and signed by the Party so
waiving. No waiver by any Party will operate or be construed as a waiver in respect of any
failure, breach or default not expressly identified by such written waiver, whether of a similar or
different character, and whether occurring before or after that waiver. No failure to exercise, or
delay in exercising, any right, remedy, power or privilege arising from this Agreement will
operate or be construed as a waiver thereof, nor will any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
10.9 Export Controls. The Parties acknowledge that the Deliverables may be subject
to export controls under the Applicable Laws of the United States and other countries. Without
limiting the Parties' other obligations under this Agreement, neither Party will export or reexport any such items or any direct product thereof or undertake any transaction in violation of
any Applicable Laws. BINANCE will be responsible for, and will coordinate and oversee,
compliance with such Applicable Laws in respect of such items exported or imported hereunder.
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IN WITNESS WHEREOF, BAM TRADING AND BINANCE have each caused this
Agreement to be signed and delivered by its duly authorized officer, all as of the Effective Date.
BAM TRADING SERVICES INC.
BINANCE HOLDINGS LIMITED
Catherine Coley
Changpeng Zhao
Name
Name
CEO
l/7 /2020
CEO
l/7 /2020
Title
Date
Title
Date
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Exhibit A
Specifications
BINANCE's digital currency trading platform consisting of the following modules, as may be
modified or improved from time to time:
1.
2.
3.
4.
5.
6.
7.
8.
9.
Digital currency exchange platfonn;
Matching engine;
Digital currency wallet services;
Android mobile application;
iOS mobile application;
"MIS" management console;]
User center;
Risk control center; and
And all other related pages, components, modules, scripts, programs and software in
support of the foregoing modules.
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