Biscom Software End User License Agreement

Biscom Software End User Terms of Use

These Software End User Terms of Use (“Terms of Use”) constitute a legal agreement between the customer identified in the MSSA and/or Ordering Document (“Customer”) and Biscom, Inc., on behalf of itself and its parents and affiliates (“Biscom”). Please read these Terms of Use carefully before you install or use this software. The software that you are now preparing to access, use or install (hereinafter the “Software”) is subject to the following terms and conditions. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE ON ANY SYSTEM, YOU ARE AGREEING TO THESE TERMS OF USE. IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU AGREE THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO AGREE TO THESE TERMS OF USE ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO THESE TERMS OF USE. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Biscom Master Services and Software License Agreement or other similar underlying agreement between the parties (the “MSSA”).

The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.

1. Customer expressly acknowledges and agrees that the Software, including any and all updates to the Software, is and continues to be subject to all existing license terms between Customer and Biscom applicable to the Software (including but not limited to any previous release of the Software) (the “Software License”). Customer expressly agrees to continue to abide by all the terms and conditions of the Software License, including but not limited to any conditions or limitations on use, in connection with Customer’s access to and use of the Software.

2. In the event that Customer has obtained the Software for the purposes of evaluation, Biscom grants to Customer a limited, temporary, revocable, non-exclusive, non-transferable, non-assignable license to install and use the Software as contained herein solely for evaluation purposes. Customer may use the Software in accordance with these Terms of Use for the duration of the evaluation period, as approved by Biscom. Biscom reserves the right to revoke this temporary license at any time at its sole discretion, and in such event, Customer shall immediately stop all access to and use of the Software.

3. Customer may not make any changes or modifications whatsoever to the Software. Without limiting the foregoing, Customer may not decompile, disassemble, create derivatives of, or otherwise reverse engineer or gain access to the source code of the Software or attempt to do any of the foregoing.

4. Biscom, the Biscom logo, and all other Biscom and Biscom affiliate trademarks, service marks, product names, and trade names of Biscom are owned by Biscom. All other trademarks, service marks, product names, and logos appearing with the Biscom Software are the property of their respective owners. Customer may not use or display any trademark, service mark, product name, trade name, or logo appearing on the Software without Biscom’s prior written consent. Biscom retains all trademark, patent, copyright, intellectual property rights and all rights not expressly granted in the Software License.

5. This Software is Commercial Computer Software under Federal Government Acquisition Regulations and Agency supplements to them. Furthermore, the export of this product is governed by the U.S. Department of Commerce under its export administration regulations. Customer may not remove or export from the United States or allow the export or re-export of any part of the Software or applicable documentation incorporated in the Software, if any, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury, Office of Foreign Assets Control, or any other United States or foreign agency or authority.

6. Customer is responsible and liable for all uses of the Software and related documentation through access thereto provided by Customer, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Customer is responsible and liable for all actions and failures to take required actions with respect to the Software by its authorized users or by any other person to whom Customer or an authorized user may provide access to or use of the Software, whether such access or use is permitted by or in violation of the Software License.

7. EXCEPT AS SPECIFICALLY SET FORTH IN THE SOFTWARE LICENSE, THE SOFTWARE IS PROVIDED “AS IS” WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BISCOM, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OR REPRESENTATIONS (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE) WITH RESPECT TO THE SOFTWARE OR ITS OBLIGATIONS HEREUNDER, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, BISCOM DOES NOT WARRANT THAT THE SOFTWARE OR THE OPERATION THEREOF IS OR WILL BE ACCURATE OR ERROR-FREE OR MEETS OR WILL MEET CUSTOMER’S REQUIREMENTS.

8. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, LOST PROFITS, COMPUTER FAILURE OR MALFUNCTION, AND LOST OR CORRUPTED DATA), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USE OF THE SOFTWARE, THE SOFTWARE LICENSE, AND THESE TERMS OF USE. SUCH LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT. IN NO EVENT SHALL BISCOM’S AND ITS AFFILIATES’ COLLECTIVE AGGREGATE LIABILITY TO CUSTOMER OUT OF OR IN CONNECTION WITH CUSTOMER’S USE OF THE SOFTWARE, SOFTWARE LICENSE, OR THESE TERMS OF USE EXCEED THE LICENSE FEES PAID BY CUSTOMER TO BISCOM IN CONNECTION WITH THE SOFTWARE LICENSE. THE LIMITATIONS SET FORTH HEREIN SHALL APPLY EVEN IF A PARTY’S REMEDIES UNDER THESE TERMS OF USE FAIL OF THEIR ESSENTIAL PURPOSE.

9. It is expressly agreed that the validity, performance and construction of these Terms of Use and all claims arising directly or indirectly hereunder shall be governed by the internal laws of the State of Washington, without regard to its principles regarding conflicts of laws.

10. If any provision contained herein is in conflict with, or inconsistent with, any provision in the Software License, the Software License shall control, but only to the extent of the conflict. If any provision contained herein is in conflict with, or inconsistent with, any provision in the MSSA, then the MSSA shall control, but only to the extent of the conflict.

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