Biscom Software End User License Agreement
This Software End User License Agreement (“License Agreement” or “EULA”) is a legal agreement between the Customer (either an individual or entity) and Biscom, Inc., a Massachusetts corporation (“Biscom”), with its mailing address at 10 Technology Park Drive, Westford, Massachusetts 01886. Please read this License Agreement carefully before you install or use this software. The client software, services and websites that you are now preparing to access, use or install (hereinafter the “Software”) is subject to the following license terms and conditions. When using our Software, BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE ON ANY SYSTEM, YOU ARE AGREEING TO THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. Capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Biscom Master Services, Purchase, and Software License Agreement (the “MSSA”). The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. This license is granted by Biscom.
- Once you have paid for the Software, Biscom grants to you a non-exclusive, non-transferable, non-assignable license to install and use the Software as contained herein. Customer and Customer’s authorized users may access and use the Software in accordance with this License Agreement. You may use the Software in accordance with this EULA for the period specified in your order or Quote.
- Either party may terminate this License Agreement upon written notice prior to the expiration of the Term in the event the other party commits a material breach, which breach is not cured by such other party within thirty (30) days of receipt of notice of the breach. Notwithstanding the aforementioned, Biscom reserves the right to terminate this License Agreement and any Services and/or other products as may be applicable upon a breach of the Biscom MSSA or any other governing documents, as applicable.
- In the event that Customer has obtained the Software for the purposes of evaluation or development, Biscom grants to Customer a temporary, non-exclusive, non-transferable, non-assignable license to use the Software as contained herein. Customer may use the Software in accordance with this License Agreement for the duration of the evaluation or development period, as approved by Biscom. Biscom retains the right to revoke this temporary license at any time at its sole discretion.
- 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 the Software or attempt to do any of the foregoing. Customer may not rent or lease it to others without prior written permission from Biscom.
- Biscom, the Biscom logo, and all other Biscom 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 Biscom service without the Biscom’s prior written consent. Biscom retains all trademark, patent, copyright, intellectual property rights and all rights not expressly granted. Under no circumstances will Customer be deemed an owner of a copy of the Software within the meaning of Section 117 of the Copyright Act of 1976 (as amended).
- 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.
- General Prohibitions. As a condition to Customer’s right to use the Software, Customer agrees not to:
- Distribute any copyrighted material, including protected audio, image, and video content, including music, movies, or other material that has distribution restrictions in violation of such restrictions;
- Upload, store, access or transmit any file that violates a copyright, that Customer does not have permission to share, that infringes on any intellectual property rights, patent, or trade secret, that violates the privacy rights of any person or organization, that is defamatory, obscene, offensive, or pornographic, that contains content that is racist, bigoted, defamatory, or harmful to any individual or group, or violates law or regulation or would give rise to civil liability;
- Harm or threaten to harm other users in any way, or interfere with, or attempt to interfere with, the access of any user, host or network, including without limitation, by sending a virus, overloading, flooding, or spamming, using the Software;
- Send unsolicited email, junk mail, spam, chain letters, promotions, or advertisements for products or services using the Software;
- Impersonate or misrepresent Customer’s affiliation with any person or entity or partake in any phishing or identity theft scheme;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.Biscom will have the right to investigate and prosecute violations of any of the above by Customer, including without limitation, possible infringement of any intellectual property rights and possible security breaches to the fullest extent of the law. Biscom may involve and cooperate with law enforcement authorities in prosecuting users who violate the terms of this License Agreement.
- Customer hereby agrees to, at its own expense, indemnify, defend and hold Biscom and its subsidiaries, affiliates, officers, directors, agents, and employees harmless from and against any loss, cost, damages, liability, or expense arising out of or relating to (“Claims”):
- any violation, fraud or breach of this Agreement by the Customer;
- Customer’s violation or alleged violation of any law or the rights of a third party, including without limitation, the infringement or violation of any patents, copyright, or other intellectual or proprietary rights;
- Customer’s use, or use by any third party, of the Software on any system that Customer owns, leases or controls; or
- Any illegal or threatening activity using the Customer’s account or Software.
Biscom will have the right to participate in its defense and hire counsel of its choice, at its own expense. Customer will not settle any action or Claims on Biscom’s behalf without the prior written consent of Biscom.
- The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this License Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this License Agreement will otherwise remain in full force and effect and be enforceable.
- No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and Customer does not have any authority of any kind to bind Biscom in any respect whatsoever.
- In any action or proceeding to enforce its rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
- All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
- Biscom represents and warrants that the Software, as delivered by Biscom and when used in accordance with the user documentation accompanying the Software and the terms of this License Agreement, will perform substantially in accordance with such documentation for a period of ninety (90) days from the date of delivery of the Software; provided, however, that Biscom shall not be liable under this warranty if the Software has been modified or altered by anyone other than Biscom, if the Software has been abused or misapplied, or if Customer has failed to incorporate all upgrades provided to Customer by Biscom. In the event of a breach of this warranty, as Customer’s sole and exclusive remedy, Biscom will correct the deficient Software, and if Biscom is unable to correct such deficient Software as warranted, Customer may terminate this License Agreement upon 60 day written notice to Biscom and Biscom shall either: (i) refund the unused portion of the license Fee (Annual) paid to Biscom by Customer hereunder or (ii) replace the Software without charge. Such refund or replacement of the defective Software are Customer’s exclusive remedies for breach of this warranty and shall be Biscom’s entire liability. Any other software and any hardware furnished with or accompanying the Software and not provided by Biscom is not warranted by Biscom, but Biscom shall assign or otherwise transfer such warranties to Customer upon purchase or payment of the license Fee, as applicable.
- EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED “AS IS” AND BISCOM EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OR REPRESENTATIONS (EXPRESS OR IMPLIED) WITH RESPECT TO THE SOFTWARE OR ITS OBLIGATIONS HEREUNDER, INCLUDING ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR AGAINST 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.
- TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, 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 THIS LICENSE AGREEMENT. SUCH LIMITATIONS OF LIABILITY SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION UNDER WHICH SUCH DAMAGES ARE SOUGHT, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, NEGLIGENCE, WARRANTY, INDEMNIFICATION, STRICT LIABILITY, OR OTHER TORT. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE LICENSE FEES PAID BY CUSTOMER TO BISCOM UNDER THIS LICENSE AGREEMENT.
- It is expressly agreed that the validity, performance and construction of this EULA and all claims arising directly or indirectly hereunder shall be governed by the internal laws of the Commonwealth of Massachusetts, without regard to its principles regarding conflicts of laws. The state and federal courts in Massachusetts shall have exclusive venue and jurisdiction for such disputes, and the parties hereto submit to personal jurisdiction in such courts.
- Customer is solely responsible for satisfying its own compliance requirements with respect to security, confidentiality, and other compliance rules and regulations.
- Customer may not assign this License Agreement or any of its rights or obligations hereunder without the prior written consent of Biscom.
- Biscom may update the Software from time to time. If Biscom changes the Software in a manner that materially reduces its functionality, Biscom will inform Customer via post to a Biscom website or via email.
- Except as otherwise explicitly provided in this License Agreement, if any provision contained herein is in conflict with, or inconsistent with, any provision in the MSSA, then the MSSA shall control.
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