Biscom Master Services and Software License Agreement | Concord Technologies

Biscom Master Services and Software License Agreement

 

                                Master Services and Software License Agreement

This Biscom Master Services and Software License Agreement (“Agreement”) governs Customer’s acquisition and use of Biscom Products, Services, and Professional Services. Capitalized terms have the definitions set forth herein. By accepting this Agreement by (i) executing an Ordering Document, (ii) clicking a box indicating acceptance, or (iii) using the services, Customer agrees to the terms of this Agreement with respect to the purchase, delivery, access, use, and support of the Biscom Products and Services. If the individual accepting this Agreement is accepting on behalf of a Company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its affiliates. If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the Products, Services, or Professional Services.

The Parties agree as follows:

  1. Definitions.
  • Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify Customer’s or an individual’s identity and authorization to access and use the Products and/or Services. 
  • Account” means the unique Biscom account that each Customer may be required to create and register with Biscom to access and use certain Products and Services.
  • Affiliate” means any legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where “control” means (a) ownership of 50% or more of the equity of such Party or entity, or (b) the power to direct or cause the direction of the management and policies of such Party or entity.
  • Authorized Users” means Customer’s employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Products and/or Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Products and/or Services has been purchased hereunder.
  • Biscom IP” means Biscom’s proprietary information, materials, prototypes, themes, inventions, computer software, programs, files, specifications or any document related thereto that were known or possessed by Biscom relating to the Products or the provision of Services hereunder and any change/enhancements to the foregoing made by or on behalf of Biscom during the Term including, but not limited to the Software and Services and any and all related updates, revisions, extensions, derivative works thereof and corrections to the Software enabling the Services or that add additional features, functionality or capabilities to such Services. Biscom IP encompasses all rights, including but not limited to patents, trademarks, and copyrights, in and to any of the foregoing.
  • Customer Data” means data provided to Biscom by or on behalf of the Customer for processing by or through the Services.
  • Hardware” means all physical computer hardware and other equipment, components and parts supplied by Biscom (including all future upgrades, enhancements, substitutions, and other modifications thereof) including but not limited to, Vega Gateways, Digital Media Gateways (“DMGs”), XCAPI components and Dialogic fax boards.
  • Ordering Document” means quotes, sales orders, quotations or order forms, work orders, statements of work (“SOW”), and similar documents executed by authorized representatives of Biscom and Customer for the purpose of ordering and providing Products and Services.
  • Products” means all Hardware, Software, Updates, Professional Services, SMU, and updates and upgrades thereto provided by Biscom under this Agreement.
  • Professional Services” means those services set forth on an Ordering Document that are identified as professional services, including but not limited to design, consultation, installation, configuration, and training.
  • Schedule” means such associated documents that may add to or modify the Agreement’s terms and conditions and are attached to this Agreement, including, but not limited to, Ordering Document(s) and any applicable service and support Schedules.
  • Service Start Date” means the date Biscom will begin charging Customer for a Product or Service with a Term.
  • Services” means all cloud software as a service (“SaaS”) provided to Customer by Biscom pursuant to this Agreement (including all future upgrades, versions, and other modifications thereof), including but not limited to FAXCOM Anywhere, Biscom SecureMail, Biscom Cloud, Transit, and Biscom Digital Fax.
  • Software” means Subscription Licensed Software and Perpetually Licensed Software.
  • Subscription Licensed Software” means Biscom on-premises software, including any Updates to the Software, in binary executable form, licensed by Customer for a limited Term or subscription period pursuant to an Ordering Document.
  • Perpetually Licensed Software” means Biscom on-premises software, in binary executable form, licensed by Customer for a perpetual term.
  • Support, Maintenance, and Update” or “SMU” means the technical support, maintenance and software updates that Biscom provides for its Products pursuant to the Biscom Support, Maintenance, and Updates (SMU) Agreement Schedule attached hereto.
  • Term” as to any Product or Service means the term length specified in the applicable Ordering Document.
  • Updates” means software updates, bug fixes, patches, or other error corrections to the Software that Biscom generally makes available to licensees of the Software: (a) for Subscription Licensed Software, during the Term of an active subscription to the Subscription Licensed Software; or (b) for Perpetually Licensed Software, during the Term of an active subscription for SMU.
  1. Term; Termination.
  • Term. This Agreement will commence on the Effective Date and will remain in full force and effect as to any Products or Services during the applicable Term, or until earlier terminated by either Party in accordance with the terms of this Agreement. Where such Term is limited, and except as otherwise set forth in the applicable Ordering Document, this Agreement and all Ordering Documents for Services, for SMU, and for any other recurring subscriptions shall automatically renew at the end of the initial Term and at the end of each subsequent renewal Term(s) for an additional one (1) year renewal Term, unless either Party provides written notice of its intent not to renew the Term at least sixty (60) days prior to the end of the then-current Term. Adding additional Products and Services may require Customer’s agreement to additional terms and conditions.
  • Termination. In addition to any other express termination right set forth in this Agreement:
  • At End of Term Commitment. Either Party may terminate this Agreement upon written notice to the other Party (including by electronic mail) following the effective expiration or termination date of any final outstanding Ordering Document or Schedule that constitutes part of this Agreement.
  • For Customer’s Specific Breaches. Biscom may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Biscom’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 18 (“General Restrictions on Use”) or Section 19 (“Confidentiality”);
  • For Material Breach or Default. Either Party may terminate this Agreement effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
  • For Insolvency. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
  • Effect of Termination. Upon any termination of this Agreement for any reason: (a) all Customer rights under this Agreement immediately terminate, except for rights set forth in provisions that expressly survive the termination of this Agreement; (b) Customer’s access to all Services shall be suspended; (c) Customer remains responsible for all Fees and charges incurred through the date of termination, or through the Term commitment on the applicable Ordering Document or Schedule, whichever is longer; (d) Customer’s license (other than a perpetual license) or right to use the Software will terminate and Customer will cease all access to and use of the Software; and (e) the Definitions (Section 1), Termination (Section 2), Fees and Payment (Section 4), Warranties (Section 7), Warranty Limitations (Section 8), Limitations of Liability (Section 9), Indemnification (Section 14), Intellectual Property Rights (Section 15), Grant of Right to Access and Use; License Grant (Section 16), Customer Representations (Section 17), General Prohibitions (Section 18), Confidentiality (Section 19), Spam and Unsolicited Fax Policy (Section 20), Incorporated Documents; Conflict (Section 21), and General (Section 22) sections will continue to apply in accordance with their terms. If termination was due to a breach by Customer of this Agreement, Biscom will not be required to refund any fees paid by Customer and Customer will remain liable for all amounts due hereunder through the Term commitment on the applicable Ordering Document and/or Schedule(s).

 

If termination is due to a breach by Biscom of this Agreement, Biscom will refund fees paid by Customer as follows:

  • For Services and SMU: Biscom will refund to Customer any pre-paid fees for the unexpired portion of the remaining Term for the terminated Services or SMU, calculated on a pro-rated basis.
  • For Hardware, Subscription Licensed Software, and Perpetually Licensed Software: Fees will not be refunded.
  1. Purchasing, Licensing, and/or Subscribing to Products and/or Services. Biscom shall provide to Customer the Biscom Products and/or Services pursuant to and in conformance with Ordering Documents executed by authorized representatives of both Parties; provided that Biscom will not be obligated to commence providing Products or Services until all documents have been executed and all actions have been completed that are necessary to obligate Customer to pay for such Products and Services. The specific number or quantities of Biscom Products and/or Services, applicable prices, effective date, and Term for the Biscom Products and/or Services shall be as provided in an applicable Ordering Document.
  1. Fees and Payment.
  • Fees. Customer will pay Biscom the fees (“Fees”) as set forth in Ordering Documents and Schedules entered into pursuant to this Agreement, without setoff, deduction, or withholding. Fees may include, but are not limited to, initial fees or deposits, one-time charges, and recurring charges. Except as otherwise set forth in this Agreement or in an Ordering Document, all fees are non-refundable.
  • Price Increases. Biscom reserves the right to increase prices once annually per Product/Service with at least 60 days prior written notice to Customer.
  • Service Start Date. Customer will start incurring Fees for Products and Services for its initial Term (other than a perpetual term), as follows:
  • Cloud Fax Services: Upon Customer’s first use of the Services, as shown in Customer’s administrative portal.
  • Subscription Licensed Software: The Service Start Date is day 1 of the first calendar month following execution of an Ordering Document for the initial order of the Software.
  • SMU: The Service Start Date is day 1 of the first calendar month following execution of an Ordering Document for SMU.

 

Except for Cloud Fax Services, if a Product or Service is activated before the Service Start Date, Biscom grants Customer the right or license, as applicable, to access and use the Product or Service at no charge until the Service Start Date for such Product/Services.

  • Additional Products and Services. Fees for any additional, subsequently-added Products and Services will be based on the then-current list price for such Products and Services. The term of any Products and Services added onto an existing contract for the same Product or Services will be co-terminous with the then-current Term for such Product or Services.
  • Expenses. Except as otherwise set forth in an Ordering Document, Customer agrees to reimburse Biscom for reasonable out of pocket expenses incurred by Biscom in connection with providing Professional Services to Customer.
  • Taxes. All pricing set forth in Ordering Documents is exclusive of any applicable sales, use, or other taxes. Unless Biscom is provided with a valid and correct tax exemption certificate, Customer is responsible for payment of all applicable local, state, and federal taxes or fees (however designated) imposed upon or incident to the use, provision, or sale of the Products and Services, including but not limited to value added, consumption, sales, use, gross receipts, excise, access, by pass, ad valorem, franchise, or other taxes, duties or surcharges  (except for taxes based on Biscom’s net income, gross revenue, or employment obligations). Any such liabilities resulting from the provision of Products or Services to Customer hereunder shall be added to Customer’s invoice and shown separately.
  • Invoicing. Biscom will invoice for Fees as follows, unless otherwise specified in the applicable Ordering Document.
  • Cloud Fax Services. Biscom invoices for Customer’s use of Services, monthly, in arrears, at the prices set forth in the applicable Ordering Document(s).
  • Subscription Licensed Software. Biscom invoices for one-time deployment fees and Year 1 licensing fees for Subscription Licensed Software upon Customer’s execution of the applicable Ordering Document. For Subscription Licensed Software with a multi-year Term, Biscom will invoice for each subsequent year of subscription licensing Fees prior to the anniversary of the applicable Service Start Date.
  • Perpetually Licensed Software. Biscom invoices for perpetually licensed Software upon Customer’s execution of the applicable Ordering Document.
  • SMU. Biscom invoices for SMU Fees for the applicable Term upon Customer’s execution of an Ordering Document for SMU. Biscom will invoice for each subsequent year (or Term) of SMU fees prior to the anniversary of the applicable Service Start Date commencing such year or Term of SMU.
  • Hardware. Biscom invoices upon shipment of Hardware.
  • Professional Services. Biscom invoices for Professional Services upon the execution of an applicable Ordering Document.
  • Payment Terms. Unless otherwise specified in an Ordering Document or in writing by Biscom, all Fees, except for any amounts disputed by Customer in good faith, and reimbursement of expenses (as provided herein) are due and payable within thirty (30) days from the date of Biscom’s applicable invoice. All payments by Customer hereunder shall be: (i) made in US Dollars by check or electronic transfer; (ii) deemed to be made only upon receipt by Biscom of the actual funds; (iii) duly identified as relating to the Product or Service purchased or subscribed to; and (iv) made payable and delivered to the name and address designated on the invoice or such other name or address as Biscom may direct in writing from time to time. If Customer chooses to pay by credit card, a 3.5% convenience fee will be added to Customer’s invoice and shown separately.
  • Failure to Make Payment. Past due amounts are subject to a late charge equal to the lesser of 1-1/2% per month or the maximum amount allowed by law. Biscom reserves the right to suspend or terminate the Services or Professional Services or withhold shipment of the Products for continued nonpayment after Biscom has provided at least ten (10) days’ written notice of nonpayment. In the event Biscom employs the services of a collection agency or attorneys for the collection of charges due under this Agreement, Customer shall be liable for all such costs, including, but not limited to, reasonable attorney’s fees and costs incurred by Biscom in prosecuting any related proceedings and any appeals therefrom.
  • Payment Disputes. Customer shall notify Biscom in writing of any disputed charges, along with a reasonably detailed description of the dispute, within ten (10) days of the invoice date. Invoices for which no such timely notification is received shall be deemed accepted by the Customer as true and correct, and the Customer shall pay all amounts due under such invoices within the period set forth in Section 4.8. The parties shall seek to resolve all such disputes expeditiously and in good faith. Customer shall pay all disputed charges resolved in Biscom’s favor on the earlier of: (i) within ten (10) days of resolving the dispute, or (ii) the next regular payment due date.
  1. Shipping; Title; Risk of Loss; Rejection. Biscom reserves the right to make partial shipments, and the Products may ship from multiple locations. All shipments are FOB Shipping Point via common carrier, and title and risk of loss pass to Customer upon delivery to the common carrier by Biscom. Customer is responsible for any shipping charges. Shipping dates are estimates only. Customer may reject any Products that do not match the Products listed in the Ordering Document, are damaged, or are non-functional upon receipt (a “Nonconforming Product”) by providing Biscom written notice of the rejection within ten (10) days of shipment. In the event Customer receives a Nonconforming Product, Customer’s sole remedy is to return the Product to Biscom for repair or replacement as further described in the Warranties section below. Failure to notify Biscom within the ten (10) day rejection period will be deemed as acceptance of the Product.
  1. Returns. Except as otherwise provided for in this Agreement, all sales are final and no refunds or exchanges are allowed, except for warranty returns or as provided by state or federal law.
  1. Warranties.
  • Software Limited Warranty. Biscom warrants that any Software as delivered or made available by Biscom  and when accessed and/or used in accordance with the documentation accompanying the Software and with the terms of this Agreement, will perform substantially in accordance with such accompanying documentation for a period of ninety (90) days from the date of initial delivery of the Software; provided, however, that Biscom shall not be liable under this limited warranty if the Software has been modified or altered by anyone other than Biscom or authorized by Biscom, if the Software has been abused or misapplied, or if Customer has failed to incorporate allUpdates provided to it by Biscom. In the event the Software fails to conform to this limited warranty, Customer must promptly notify Biscom in writing of such alleged nonconformance. Biscom will, at Biscom’s expense, take commercially reasonable steps to correct the deficient Software. If, in Biscom’s sole discretion, Biscom is unable to correct such deficient Software to conform to this limited warranty, then either Party may terminate the license or subscription for such deficient Software. Customer will discontinue all access to and use of such Software and return any installed components of such Software to Biscom, and, as Customer’s sole and exclusive remedy for the warranty breach, Customer shall receive a refund of a reasonable portion of the fees paid by Customer for such deficient Software, such refund amount to be determined by Biscom in its sole but reasonable discretion, and such refund shall be Biscom’s entire liability.
  • Hardware Limited Warranty. Biscom warrants that its Hardware Products are free from defects in workmanship and materials for a period of one (1) year from the date of receipt by Customer. If a valid warranty claim for a Hardware Product is received by Biscom within the warranty period, Biscom agrees to repair or replace the Product that Biscom determines in its sole discretion to be defective under normal use, as defined in the Product instructions. Biscom’s sole liability and Customer’s sole remedy under this limited warranty is to either repair or replace with the same or like Product, at Biscom’s option. A replacement Product will be the same or like and have the remaining warranty period of the original Product or ninety (90) days from the date of replacement or repair, whichever period is longer. When a Product or part is exchanged, any replacement item becomes Customer’s property and the replaced item becomes Biscom’s property.
  • Professional Services Limited Warranty. Biscom warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry practices. In the event of a breach of this limited warranty, as Customer’s sole and exclusive remedy, Biscom will, at Biscom’s expense, take commercially reasonable steps to correct the deficient Professional Services. If, in Biscom’s sole discretion, Biscom is unable to correct such deficient Professional Services to conform to this limited warranty, then either Party may terminate such deficient Professional Services and Customer shall receive a refund of a reasonable portion of the fees paid by Customer for such deficient Professional Services, such refund amount to be determined by Biscom in its sole but reasonable discretion, and such refund shall be Biscom’s entire liability.

 

  1. Warranty Limitations.
  • EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS,” AND BISCOM EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OR REPRESENTATIONS (EXPRESS OR IMPLIED) WITH RESPECT TO THE PRODUCTS AND SERVICES, 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 THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY, OR COMPLETENESS OF THE PRODUCTS AND SERVICES, OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE PRODUCTS AND SERVICES, AND/OR THAT THE PRODUCTS, SERVICES, OR THE OPERATION THEREOF IS OR WILL BE ACCURATE OR ERROR-FREE OR MEETS OR WILL MEET CUSTOMER’S REQUIREMENTS, INCLUDING ANY REQUIREMENTS WITH RESPECT TO PARTICULAR SECURITY, CONFIDENTIALITY, PRIVACY, OR OTHER COMPLIANCE RULES AND REGULATIONS.
  • The warranties set forth in Section 7 do not apply to, and Biscom will not be responsible for, any loss, data loss, damage, or other liabilities to the extent the foregoing arises from: (a) Customer’s failure to follow instructions or documentation relating to use of the Products or Services; (b) Customer’s use of the Products or Services with non-Biscom products, or with components not manufactured or recommended by Biscom; (c) abuse, misuse, or intentional or deliberate damage to the Products or Services; (d) a force majeure event that is outside Biscom’s reasonable control; (e) damage to or defects in a Product or part that has been repaired or modified by persons other than Biscom authorized personnel unless otherwise directed by Biscom in writing; or (f) damage to or defects in any Biscom Product whose serial number has been removed or defaced.
  • The warranties set forth in Section 7 do not apply to any third-party software or hardware furnished with or accompanying the Software or Hardware, if that third-party software or hardware is not provided by Biscom.
  • To the maximum extent permitted by applicable law, the warranties and remedies set forth in this Agreement are exclusive, and Biscom disclaims all other warranties, remedies, and conditions, whether oral or written, statutory or implied. If statutory or implied warranties cannot be lawfully disclaimed, then all such warranties are limited to the duration of the express warranties described in Section 7 and limited by other provisions contained in this Agreement. 
  1. Limitations of Liability.
  • NOTWITHSTANDING THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, WHETHER IN CONTRACT, TORT (INCLUDING, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS (INCLUDING SUCCESSORS AND ASSIGNS) BE LIABLE FOR ANY LOSSES, DAMAGES, OR FINANCIAL OBLIGATIONS OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT THAT EXCEED, IN THE AGGREGATE, THE FOLLOWING AMOUNTS: (A) FOR HARDWARE OR PERPETUALLY LICENSED SOFTWARE, THE AMOUNT ACTUALLY PAID OR PAYABLE TO BISCOM BY CUSTOMER FOR SUCH HARDWARE OR PERPETUALLY LICENSED SOFTWARE; (B) FOR SERVICES, SUBSCRIPTION LICENSED SOFTWARE, PROFESSIONAL SERVICES, OR SMU, THE TOTAL FEES PAID OR PAYABLE FOR SUCH SERVICES, SUBSCRIPTION LICENSED SOFTWARE, PROFESSIONAL SERVICES, OR SMU OVER THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE LIMITATIONS SET FORTH HEREIN SHALL APPLY EVEN IF A PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. NO ACTION OR CLAIM MAY BE INSTITUTED MORE THAN TWELVE (12) MONTHS AFTER THE EVENT GIVING RISE TO SUCH CLAIM.
  • IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS (INCLUDING SUCCESSORS AND ASSIGNS) OR ANY BISCOM LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF CUSTOMERS, OR LOSS OF GOODWILL, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

  1. Modifications to Products and Services. Biscom reserves the right to modify, change, make design changes, or alter or discontinue features of Biscom’s Products or Services from time to time (“Design Changes”), including without limitation by providing upgrades and Updates. Biscom shall not be obligated to make changes to earlier versions of Products or Services previously purchased. Biscom will use commercially reasonable efforts to notify Customer of any such Design Changes, which may include by providing release notes or updated documentation or by placing a notice on Biscom’s website. Biscom may condition the implementation of new features, functionality, or other modifications to the Products or Services on Customer’s payment of additional fees, provided that Biscom generally charges other customers for such new features, functionality, or modifications. Access to new features, functionality, or other modifications to the Products or Services may be subject to additional or different terms and conditions.
  1. Services Support and Maintenance. The Cloud Applications Support Agreement Schedule describes the terms and conditions applicable to support of the Services. 
  1. Account Content and Files; Security.
  • Account Content and Files. All files, folders, messages, comments, and other user information and content created or uploaded by Customer (including any information or data therein) that may be accessed, stored, sent, received, edited, synchronized, shared, or otherwise organized or managed as part of the Services, will not be monitored, disclosed, or changed by Biscom without Customer’s permission unless otherwise permitted by this Agreement or required by law. As between Customer and Biscom, Customer is responsible for the content and files placed or received by Customer in Customer’s Account.
  • Customer Responibility. Without limiting the generality of the foregoing, Customer is responsible and liable for all uses of the Software and Services 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 Services and 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 or Services, whether such access or use is permitted by or in violation of this Agreement.
  • Loss or Deletion of Data. Although Biscom shall maintain reasonable safeguards to prevent unauthorized use or access to any data or information contained in Customer’s Account, Biscom shall not be responsible for any loss or corruption of any such data or information. For Customer files or content that violate this Agreement, user policies, size limits, transfer frequency limits, or bandwidth limits, Biscom reserves the right to terminate the associated accounts and delete any content that may be in violation of the terms of service or this Agreement. Files or content that are deleted from the Services cannot be undeleted or retrieved.
  • Account Security. As part of the registration process, Customer may be required to provide an email address and select a password. Customer’s Account will have a username for the Service. Customer is entirely responsible for maintaining the confidentiality of its Access Credentials. Customer agrees to immediately notify Biscom of any unauthorized use of its Account or any other breach of security known to Customer regarding Customer’s Account or Access Credentials.
  • Storage of Data. Customer acknowledges that for certain Services, Biscom may store data on computers that are located outside of the jurisdiction in which the Customer data originated. Biscom has no control of the destination a customer may send data using the Service.
  • Audit Reports; Security Questionnaires. Upon Customer’s written request, subject to mutually agreed confidentiality protections, and not more than once per calendar year, Biscom will provide a copy of its third-party SSAE 18 Type II or SOC 2 Type II audit report(s) (or their equivalent successor standards) as it pertains to the Services. For written Customer questionnaires that require more than one hour to answer, Biscom will charge Customer $250 per hour to complete such questionnaire. Biscom will decide whether to complete questionnaires at its sole discretion.
  1. Insurance. Biscom will maintain, at Biscom’s own expense and in effect during the term of this Agreement, General Commercial Liability Insurance, Worker’s Compensation Insurance, and Commercial Automobile Insurance, and will furnish certificates of insurance or self-insurance upon request.
  1. Indemnification.
  • Indemnification by Biscom. Biscom will defend (at Biscom’s expense) Customer, its Affiliates, and its/their officers, directors, and employees (“Customer Indemnitees”) from and against any claims, suits, or proceedings brought by a third party (“Claims”) against Customer Indemnitees contending that Customer’s use of the Products or Services in accordance with the applicable documentation and this Agreement infringes any United States copyright or trade secret rights of such third party (“IP Rights Infringement”) and will pay all damages finally awarded by a court of competent jurisdiction or agreed to by Biscom in settlement of the Claim.

 

In the event that the Products or Services or any part thereof is likely to, in Biscom’s sole opinion, or does become the subject of an IP Rights Infringement-related Claim, and Biscom cannot, at its option and expense, (a) procure for Customer the right to continue using the infringing Products or Services, or any part thereof, or (b) modify the infringing Products or Services, or any part thereof, to make them non‑infringing, or (c) supply a non-infringing alternative that does not materially negatively impact the functionality provided by the infringing Products or Services, then Biscom may terminate this Agreement and/or any licenses to infringing Software, upon written notice to Customer, and Customer will stop using the infringing Products and Services and return them to Biscom upon Biscom’s request, at Biscom’s expense. In the event of a termination pursuant to this Section 14.1, Biscom will refund fees paid as follows:

  • For Services and Subscription Licensed Software: Biscom will refund to Customer any pre-paid fees for the unexpired portion of the remaining Term for the terminated Services or Software, calculated on a pro-rated basis.
  • For Perpetually Licensed Software: Biscom will refund to Customer a portion of the fees actually paid to Biscom for licensing and implementation of the Perpetually Licensed Software, calculated by depreciating such fees on a straight-line basis over a three (3) year period starting on the date of the initial delivery of the Software to Customer.
  • For Hardware: Biscom will refund to Customer a portion of the fees actually paid to Biscom to purchase the Hardware, calculated by depreciating such fees on a straight-line basis over a three (3) year period starting on the date of the initial delivery of the Hardware to Customer. 
  • For SMU: Biscom will refund to Customer any pre-paid fees for the unexpired portion of the remaining Term for SMU for the infringing Product(s), calculated on a pro-rated basis.

Biscom will have no liability for any Claim or demand arising from (i) an allegation that does not state with specificity that the Products or Services are the basis of the Claim; (ii) the use or combination of the Products or Services or any part thereof with software, hardware, or other materials not developed or provided by Biscom if the Products or Services or use thereof would not infringe without such combination; (iii) the use of any other release or version of the Products or Services than the most current release or version of any Products or Services provided by Biscom; (iv) modification of the Products or Services by a party other than Biscom, if the use of unmodified Products or Services would not constitute infringement; (v) a breach by Customer of any obligation under this Agreement or a use of the Products or Services by Customer or any user in a manner outside the scope of any right granted herein or not in accordance with the applicable documentation if the Claim would not have arisen but for such breach or unauthorized use; (vi) the Customer Data; or (vii) an allegation made against Customer prior to the execution of this Agreement or any allegation based upon any action by Customer prior to the execution of this Agreement. The foregoing states Biscom’s entire liability and Customer’s exclusive remedy for IP Rights Infringement under this Agreement.

  • Indemnification by Customer. Customer will defend, indemnify, and hold Biscom, its Affiliates, and its/their officers, directors, and employees (“Biscom Indemnitees”) harmless from and against any loss or damage (including reasonable attorneys’ fees) incurred in connection with Claims brought against Biscom Indemnitees that: (i) allege that Customer Data infringes the intellectual property or privacy rights of, or has otherwise harmed, a third party; (ii) are based upon any user’s use of the Products and Services not in accordance with the terms of this Agreement or not in accordance with the applicable documentation, or in violation of Section 18 (“General Conditions on Use”) or in violation of applicable laws, rules, or regulations; or (iii) based on any failure or alleged failure of Customer to comply with any applicable law, rule, or regulation in connection with its use of the Products and Services.
  • Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of the Claim and request for indemnification, (b) reasonably cooperating and assisting in such defense of the Claim at the indemnifying party’s expense, and (c) giving sole control of the defense of the Claim and any related settlement negotiations to the indemnifying party, with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without the indemnified party’s prior written consent. The indemnified party will have the right to participate in its defense of the Claim and hire counsel of its choice, at its own expense.

 

  1. Intellectual Property Rights.
  • General. Biscom IP will remain the sole and exclusive property of Biscom; and Biscom IP will be considered and treated as Confidential Information of Biscom. Customer shall not unbundle any embedded Biscom IP and shall not use or disclose or resell Biscom IP in any manner. Customer shall not have the right to assign, except as expressly permitted in this Agreement, or sublicense any rights in the Biscom IP. Customer Data and Customer’s Confidential Information will remain the sole and exclusive property of Customer.
  • Customer Data. Biscom makes no claim to any right of ownership in Customer Data. Customer Data will not be accessed, used, or disclosed by Biscom except in connection with the performance of this Agreement. By transmitting or permitting Customer Data to be transmitted, Customer represents and warrants to Biscom that Customer is the owner of all rights to that Customer Data, or that Customer otherwise has the right to reproduce and distribute the Customer Data. Biscom shall not use or sell Customer Data for any purpose, except as permitted by this Agreement.
  • Trademarks. 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, products names, and logos appearing on the Biscom Software are the property of their respective owners. Customer may not, without Biscom’s prior written consent, use or display, apart from any use or display through Customer’s use of or access to the Products and Services or the outputs generated therefrom, any trademark, service mark, product name, trade name, or logo appearing on or from any Biscom Product or Biscom server.
  • During the term of this agreement and subject to applicable confidentiality obligations, Biscom may list Customer on its customer list and may generally describe the nature of the Products purchased by and Services performed for Customer, for Biscom’s business promotion and marketing purposes, including placing Customer’s name and/or logo on the Biscom website and in presentations. Biscom may, with Customer’s written consent, create and publicize a case study of Customer’s experience using Biscom’s Product(s) and/or Services as an example of Biscom’s services and abilities. 
  1. License Grant; Grant of Right to Access and Use.
    • License Grant.
      • Subscription Licensed Software. With respect to any Subscription Licensed Software, subject to and conditioned on Customer’s payment of any applicable license or subscription fees and compliance with all other terms and conditions of this Agreement, Biscom hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable and non-assignable (except in compliance with Section 7 (“Assignment”)), world-wide, enterprise-wide license for the Term stated on such Ordering Document to: (a) access, install (to the extent required for user access) on any model, size, power, or level computer, irrespective of the number of processors, and operate, and for users to use, for Customer’s internal use, the Subscription Licensed Software (in binary executable form only) solely for the internal business purposes of Customer; (b) use and make a reasonable number of copies of the Subscription Licensed Software’s accompanying documentation, manuals, and specifications, solely for the internal business purposes of Customer and in connection with Customer’s use of the Subscription Licensed Software; and (c) make a single copy of the Subscription Licensed Software solely for back-up, disaster recovery, and testing purposes, which may be retained by Customer during the Software’s Term (including any renewal Terms) and must be destroyed thereafter. Any such copy of the Subscription Licensed Software: (x) remains Biscom’s exclusive property; (y) is subject to the terms and conditions of this Agreement; and (z) must include all copyright or other proprietary rights notices contained in the original.
      • Software Licensed for a Perpetual Term. With respect to any Perpetually Licensed Software set forth in an Ordering Document that is licensed for an unlimited (perpetual) Term, subject to and conditioned on Customer’s payment of any applicable license fees and compliance with all other terms and conditions of this Agreement, Biscom hereby grants to Customer a perpetual, non-exclusive, non-sublicensable, non-transferable and non-assignable (except in compliance with Section 7 (“Assignment”)), world-wide, enterprise-wide, fully paid-up license to: (a) access, install (to the extent required for user access) on any model, size, power, or level computer, irrespective of the number of processors, and operate, and for users to use, for Customer’s internal use, the Perpetually Licensed Software (in binary executable form only) solely for the internal business purposes of Customer; (b) use and make a reasonable number of copies of the Perpetually Licensed Software’s accompanying documentation, manuals, and specifications, solely for the internal business purposes of Customer in connection with Customer’s use of the Perpetually Licensed Software; and (c) make a single copy of the Perpetually Licensed Software solely for back-up, disaster recovery, and testing purposes. Any such copy of the Perpetually Licensed Software: (x) remains Biscom’s exclusive property; (y) is subject to the terms and conditions of this Agreement; and (z) must include all copyright or other proprietary rights notices contained in the original.
    • Reservation of Rights. Biscom reserves all rights in and to the Software, Services, and accompanying documentation not expressly granted to Customer hereunder. Except for the limited rights and licenses expressly granted under this Agreement, nothing in the Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Software, Services, or any accompanying documentation. Customer acknowledges that, as between Customer and Biscom, Biscom owns all right, title, and interest, including all intellectual property rights, in and to the Software, Services, and any accompanying documentation.
    • Provision of Access to Services. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of this Agreement, Biscom hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 7 (“Assignment”)), world-wide, right to access and use the Services set forth in an Ordering Document during the Term stated on such Ordering Document, solely by Authorized Users in accordance with the terms and conditions herein. Such use is further limited to Customer’s internal use. Biscom shall provide to Customer any necessary passwords and network links, connections, or URLs to allow Customer to access the Services.
    • Authorized Users. The total number of Authorized Users during a Term will not exceed the number identified in the applicable Ordering Document or Schedule, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.

 

  1. Customer Representations. Customer represents and warrants as follows:
  • That Customer possesses the legal right and ability to enter into this Agreement.
  • That Customer agrees to be financially responsible for its use of the Products or Services and to comply with its responsibilities and obligations as stated in this Agreement.
  • That Customer is responsible for regularly reviewing the Biscom website to obtain timely notice of updates to the Products and Services, and notifications. Customer shall be deemed to have accepted such updates and notifications by continuing to use the Products and Services after such updates, and notices have been posted or information regarding such updates, or notices has been sent to Customer.
  • That for Services providing for the transfer and storage of data, Customer has all rights necessary to allow for the data to pass through computers outside of the jurisdiction in which such Customer data originated. Customer further warrants and covenants and agrees that Biscom’s pass-through of data on computers located outside of the jurisdiction in which such data originated does not and will not breach any applicable third party right or applicable law, regulation, convention, by-law, ordinance, or treaty.
  • That Customer is responsible for (i) Customer’s use of Biscom Products or Services (including any activities under any Accounts registered in Customer’s name or used by Customer employees or agents); (ii) breach of this Agreement or violation of applicable law by Customer or any of the Customer’s end users; (iii) a dispute between Customer and any third-party over Customer’s use of Biscom Products or Services; (iv) any hardware or networks that Customer connects with the Products or Services; and (v) any security settings the Customer establishes to interact with or on the Products or Services.
  • That Customer’s use of Products and Services will comply with all applicable laws, regulations, and conventions, including those related to data privacy, international communications, exportation of technical or personal data, and the sending of certain unsolicited facsimiles.
  • That Customer will implement controls to protect the security and use of Customer’s and Authorized Users’ Access Credentials

 

  1. General Conditions on Use.
  • As a condition to Customer’s use of the Products or Services, Customer agrees not to:
  • Upload, store, access, or transmit any file that: (i) violates copyright, (ii) that Customer does not have permission to share, (iii) that infringes on any intellectual property rights, patent, or trade secret, (iv) that violates the privacy rights of any person or organization, (v) that is defamatory, obscene, offensive, or pornographic, (vi) that contains content that is racist, bigoted, defamatory, or harmful to any individual or group, (vii) that violates applicable law or regulation; or (viii) that would give rise to civil or criminal liability;
  • Access, tamper with, or use any non-public areas of the Services or Biscom’s servers or computer systems, or any other service providers involved in providing the Products and Services to Customer;
  • Probe, scan, or test (or attempt to do any of the foregoing) the vulnerability of the Products or Services, or any related Biscom system, or Biscom network, or breach any security or authentication measures used by Biscom in connection with the Products or Services and such systems and networks;
  • Decipher, decompile, disassemble, create derivatives of, or reverse engineer (or attempt to do any of the foregoing) any Products or Services, or take steps to discover Biscom’s Confidential Information (as defined below) or trade secrets in the Products and Services;
  • Rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services, Software, or documentation accompanying them, and if Customer desires to discuss becoming an authorized reseller, then Customer should contact Biscom at sales@concord.net;
  • Use the Products and/or Services other than for Customer’s internal business use.
  • Remove any proprietary notices from the Products, Services, or documentation accompanying them;
  • Build or assist someone else to build a competitive solution using similar ideas, features, functions, appearance, or graphics of the Products and Services;
  • 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 the Services;
  • Send unsolicited email, junk mail, spam, chain letters, promotions, or advertisements for products or services; 
  • Impersonate or misrepresent Customer’s affiliation with any person or entity;
  • Violate any applicable law or regulation; or
  • Encourage or enable any other individual or organization to do any of the foregoing.

Biscom has the right to investigate suspected violations of any of the foregoing, to the fullest extent permitted by this Agreement and by law. Biscom may involve and cooperate with law enforcement authorities in prosecuting Customers or users who violate this Agreement. Customer acknowledges that, although Biscom has no obligation to monitor Customer’s use or access to the Products or Services, it has the right to do so: (a) for the purposes of operating the Products or Services, (b) to ensure Customer’s compliance with this Agreement, (c) to comply with applicable law, or the order or other requirement of a court, administrative body, security agency, or other governmental body; and (d) to investigate possible infringement of any intellectual property rights or privacy rights or violation of any privacy or security laws or regulations.

  • Suspension. Notwithstanding anything to the contrary in this Agreement, Biscom may temporarily suspend Customer’s and any end user’s access to any portion or all of the Services if: (i) Biscom reasonably determines that (a) there is a threat or attack on any of the Services or Biscom IP; (b) Customer’s or any user’s use of the Services, or the Customer Data, disrupts or poses a security risk to the Services or Biscom IP or to any other customer or vendor of Biscom; (c) Customer, or any end user, is using the Services for fraudulent or illegal activities; (d) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (e) Biscom’s provision of the Services to Customer or any user is prohibited by applicable law; (ii) any vendor of Biscom has suspended or terminated Biscom’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 9 (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Biscom shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Biscom shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Biscom will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any user may incur as a result of a Service Suspension.
  1. Confidentiality. As used in this Agreement, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. However, Confidential Information will not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.  Except as otherwise permitted in writing by Disclosing Party, Receiving Party will (i) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care); (ii) not disclose or use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement; and (iii) limit access to Confidential Information of Disclosing Party to those of its employees, contractors, legal advisors, and agents who need such access for purposes consistent with this Agreement and who are bound by confidentiality obligations at least as stringent to those in this Agreement. For the avoidance of doubt, Receiving Party may disclose Confidential Information of Disclosing Party if it is compelled by law to do so, provided that Receiving Party: (A) uses reasonable efforts to minimize any such disclosure and, to the extent permitted by applicable law, and reasonably assists the Disclosing Party in preventing or restricting the disclosure; (B) where permitted by applicable law, gives the Disclosing Party prompt written notice of such requirement to disclose to enable the Disclosing Party (at its cost) to seek an appropriate protective order or other remedy; and (C) uses reasonable efforts to require the recipient of such Confidential Information to preserve the confidential nature of the Confidential Information once disclosed.
  1. Spam and Unsolicited Fax Policy. Customer is prohibited from using Biscom’s Products or Services as a location for responses to email or fax spam offers.
  • If Customer believes it is in receipt of email or fax spam that uses a facsimile number as a location for responses, Customer should take the following steps:
  • If the email or fax contains an email address, telephone number, fax number, or other contact information to “unsubscribe” from receipt of additional messages, Customer should affirmatively unsubscribe;
  • If Customer receives an unsolicited fax from another customer of Biscom Software or Services, Customer should contact the sender to request removal from all lists. Customer may additionally email support@biscom.com to request to have the outbound transmission to Customer’s Biscom fax numbers blocked. Notwithstanding the above, Biscom assumes no responsibility or liability for unsolicited faxes, including unsolicited faxes sent from another customer of Biscom Software or Services.
  • At Biscom’s option and without further notice, Biscom may use reasonable technologies and procedures, such as filters, that may terminate the transmission of unsolicited faxes without delivering them. Biscom is not responsible for blocking or filtering unsolicited faxes sent to customers. The transmission of unsolicited fax advertisements is illegal in the United States under the Telephone Consumer Protection Act of 1991 (47 USC 227) (see https://www.fcc.gov/general/telemarketing-and-robocalls) and is also illegal under the laws of a number of other countries, states, and provinces. Distribution of unsolicited fax advertisements through Biscom Products and Services is prohibited. 
  1. Incorporated Documents; Conflict.
  • Incorporated Documents. Attached to this Agreement as Schedules may be the following documents:
  • Ordering Document(s) setting forth the Products and Services licensed, purchased, or subscribed to by Customer.
  • Service and Support Agreement(s) governing the service and support level for the applicable Products and Services purchased by Customer.
  • The FAXCOM Anywhere Hosted Fax Service Additional Terms and Conditions Schedule.

For the avoidance of doubt, this Agreement may have all, none, or a combination of the above referenced documents as Schedules, depending on the Products and Services purchased by Customer. All Schedules attached hereto constitute part of this Agreement and are subject to its terms and conditions.

Ordering Documents executed by the Parties, whether or not attached hereto, constitute part of this Agreement and are subject to its terms and conditions.

  • Conflict. Except as otherwise provided in this Agreement, if any provision contained in this Agreement is in conflict with, or inconsistent with, any provision in a Schedule, Ordering Document, Service and Support Agreement, or any other document that may be attached to or constitute part of this Agreement, the order of precedence shall be (1) this Agreement; (2) any Ordering Document; (3) any Service and Support Agreement; and (4) any other attached Schedule, unless, however, the Ordering Document, Service and Support Agreement, or Schedule expressly states and identifies which provision of the Agreement is being superseded by the terms contained in such other document, then such other document shall supersede the terms of the Agreement, but only for the applicable section referenced and only in respect of such other document.  No pre-printed or alternative terms and conditions in any purchase order, confirmation or other communication or document provided by Customer will be of any effect.

 

  1. General.
  • Notices. Any notices to be given hereunder to a party shall be made via U.S. Mail or express courier to such Party’s address given below, and/or via email (with confirmation of receipt) to the email addresses listed on an Ordering Document. Notices to Biscom by email must be sent to generalcounsel@concord.net. Notices to Biscom by U.S. mail or express courier must be sent to Biscom, Inc., 2025 First Avenue, Suite 800, Seattle, WA 98121, Attn: Legal Department, with an email copy to generalcounsel@concord.net.  Each Party may change its address for notice by the giving of notice thereof in the manner hereinabove provided.
  • Export Control. Certain Products and Services use Commercial Computer Software under Federal Government Acquisition Regulations and Agency supplements to them. The export of the Products and Services 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 to any prohibited country, entity, or person for which a United States export license or other United States governmental approval is required, or allow the export or re-export of any part of the Products or 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.
  • Governing Law; Venue. It is expressly agreed that the validity, performance and construction of this Agreement 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. The state and federal courts in King County, Washington, shall have exclusive venue and jurisdiction for such claims and disputes, and the Parties hereto submit to personal jurisdiction of such courts. EACH PARTY, TO THE MAXIMUM EXTENT PERMITTED BY LAW, WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT.
  • Entire Agreement; Amendment; Waiver. This Agreement, along with its various attachments, schedules, exhibits and appendices, constitutes the entire agreement and understanding between Customer and Biscom relating to the Products and Services. This Agreement may be amended or modified only by written agreement signed by authorized representatives of both Parties. Failure of either Party to insist upon performance of any term or condition of this Agreement or to exercise any right or privilege hereunder (collectively, “Waiver”) shall not be construed as a continuing or future Waiver of such term, condition, right or privilege.  No Waiver by either Party of any provision of this Agreement shall be binding unless expressly made in writing and mutually agreed to by the Parties.
  • No Partnership. The relationship between Biscom and Customer shall be that of an independent contractor. No agency, partnership, joint venture, or employment 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. 
  • Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
  • Assignment. Neither this Agreement nor any of the rights, interests, or obligations hereunder may be assigned, delegated or otherwise transferred, in whole or in part, by operation of law or otherwise, by either Party without the other Party’s prior written consent, provided that Biscom may assign its rights, obligations, or interests under this Agreement to any third party that acquires all or substantially all of Biscom’s assets, and the Agreement shall be binding upon the acquirer and will remain in full force and effect. Any h assignment, delegation, or transfer by either Party in contravention of this paragraph shall be null and void and of no force or effect whatsoever.  No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
  • Force Majeure. No failure or omission by either party to carry out or observe any of the terms and conditions of this Agreement shall give rise to any claim against such party or be deemed to be a breach of this Agreement if such failure or omission arises from any cause reasonably beyond the control of that party whether caused by acts of God, insurrection, civil disorder, war, military operations, national or local emergency, acts or omissions of any government authority, industrial disputes, fire, lightning, explosion, inclement weather, fiber cuts, failure of carrier or utilities, or other similar causes beyond the control of either Party.
  • No Third Party Beneficiaries. Except as expressly stated herein, nothing in this Agreement will confer any rights, remedies, or obligations upon any person other than the Parties hereto and their respective successors and permitted assigns.
  • Section Headings. The Parties include section headings herein for reference purposes only and shall not in any way affect the meaning or interpretation of this Agreement.
  • Counterparts; Facsimiles; E-signatures. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original. Electronic or facsimile copies hereof shall be deemed to be originals. Each Party agrees that the electronic signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record.

 

Biscom Support, Maintenance, and Updates (SMU) Agreement Schedule

 

  1. This Support, Maintenance, and Updates (SMU) Agreement Schedule (this “SMU Agreement”) sets forth the terms and conditions under which Biscom will provide support (subject to Customer’s payment of applicable fees) for Biscom Products identified on an Ordering Document as being entitled to such support, including technical support, maintenance, and software updates. This SMU Agreement does not apply to any third-party software or hardware products that were not obtained from Biscom, and support will not be provided under this SMU Agreement for such products. Capitalized terms used but not otherwise defined herein shall have the same meanings assigned to them in the Biscom Master Services and Software License Agreement or similar agreement (the “Agreement”) by and between Biscom and Customer.
  2. Technical Support.
    • Standard Support. Biscom technical support is from 8:30 AM to 7:00 PM ET, Monday through Friday, excluding Biscom company holidays (“normal business hours”). Biscom Holidays include: New Year’s Day, Martin Luther King Jr. Day, Memorial Day, Juneteenth, Independence Day, Labor Day, U.S. Presidential Election Day, Thanksgiving Day, the day after Thanksgiving, Christmas Eve, and Christmas Day. Standard support can be accessed by telephone, email to support@biscom.com, and/or via the Biscom Support Portal.
    • 24/7 Support. For an additional fee, Biscom will provide telephone support twenty-four (24) hours per day, seven (7) days per week. Customer is required to have standard support in effect before Customer may execute or otherwise accept an Ordering Document for 24/7 Support. 24/7 Support is available only in the US and Canada.  24/7 Support customers will be given a telephone number that can be used to contact a Biscom support engineer outside of normal business hours.
  3. The sections below apply to SMU purchased for applicable Product(s) pursuant to the Agreement and an Ordering Document.
    • Covered Software Products (other than Services). Biscom support covers initial installation, configuration, and general troubleshooting to resolve open issues for Software licensed to Customer by Biscom. Biscom support does not cover: Customizations to the user interface, including cascading style sheets (CSS) and application text changes; Software changes to implement new features or change existing behavior; configuring Software to run in a highly available or redundant environment; disaster recovery planning and implementation; workflow designs; rules creation; and other work outside the scope of standard product installation and configuration, and any such work will be charged to the Customer as Professional Services at Biscom’s then-current Professional Services rates as set forth in a Statement of Work executed by the Parties.
    • Covered Hardware Products.
      • Repair and Replacement. Biscom will make commercially reasonable efforts to troubleshoot, repair, or replace, as it deems necessary, any incorrectly functioning Vega Gateway, DMG, AudioCodes Gateway or fax board covered by this SMU Agreement with parts of equivalent or greater functionality. If the part is deemed to be user replaceable, then Biscom support will send the replacement part to the Customer. If Biscom technical support is unable to resolve a Hardware problem, Biscom may ship a temporary or permanent replacement part of equivalent functionality to the Customer.  Customer must return the malfunctioning part or unit to Biscom within seven (7) business days after receiving the replacement part. After Customer’s repaired part or unit is received by Customer, Customer must return the temporary replacement part or unit to Biscom within seven (7) business days thereafter; temporary units or parts not timely received by Biscom may be subject to a service charge. Customer agrees to pay for return shipping and insurance of the temporary replacement part or unit, and will carefully pack the temporary part or unit in its original shipping container or similar packaging.
      • Hardware Return Policy. If a malfunctioning fax board or media gateway requires service outside of Section 3.2.1, above, Biscom will provide the Customer with a Return Material Authorization (“RMA”) number. Customer agrees to use reasonable care to pack, handle, and ship any Product and to use the original product packaging or a similar packaging when returning such Product to Biscom. Furthermore, the Customer will pay all shipping and insurance for such shipment to Biscom. In addition to providing Customer’s company name and contact, the RMA number should be clearly marked on the lower left corner of the shipping label.
  1. Maintenance and Updates. Biscom provides releases to its Software from time to time. These releases can be either minor or major updates to the Software. Minor releases could be considered fixes or patch releases, or functional updates to the Software. Major releases are considered significant or material upgrades, and these releases include new features and functionality. Major releases and may incur additional license fees and may be excluded from the Updates offered and provided pursuant to this SMU Agreement in Biscom’s sole discretion. The minor releases are provided and offered to Customer during the applicable Term of this SMU Agreement as set forth in an Ordering Document. The Software, including all Updates provided to Customer under this SMU Agreement, is and continues to be subject to all existing license terms between Customer and Biscom applicable to the Software.
  2. Limitations. This SMU Agreement is subject to the terms and conditions of the Agreement, including but not limited to the limitations on liability set forth in the Agreement. This SMU Agreement applies only to Biscom Products identified on an Ordering Document as being entitled to such support, including technical support, maintenance, and software Updates. This SMU Agreement does not cover any Product which has been improperly maintained, mishandled, incorrectly operated, or altered. Biscom may provide service for such improperly maintained Products, in Biscom’s sole discretion, subject to its acceptance or execution of an Ordering Document for same, on a time and materials basis. This SMU Agreement does not include any services that Biscom may generally make available to its customers at an additional charge.
  3. Named Support Contacts. Customer shall designate at least one and no more than three individuals as point contacts who shall be the identified and exclusive individuals working with Biscom Support. If the Customer so elects, it can designate up to an additional two contact points under this SMU Agreement for the additional fee of $250.00/year/person.
  4. Failure to pay for continued SMU. Biscom will suspend service and support to Customer should Customer fail to pay invoices for support and/or service when they are due. To reinstate service and support with Biscom, Customer must pay SMU Fees covering any gaps in coverage due to non-payment as well as a ten percent (10%) reinstatement fee. Biscom reserves the right, in its sole discretion, to decline to permit Customer to reinstate service and support in the event the gap in coverage is longer than twelve (12) months.
  5. SMU Fees. Customer will be charged annual SMU fees in an amount equal to the percentage indicated on the applicable Ordering Document for the applicable level of SMU, multiplied by the then-current list-price for the Products to which SMU applies, subject to applicable fee increases permitted under the Agreement.
  6. Biscom Technical Support Service Levels.
    1. Technical Support during Normal Business Hours. Biscom will use commercially reasonable efforts to respond to support requests during normal business hours in accordance with the table below.

 

Priority Level DescriptionTarget Response Time
UrgentProduction application down or major malfunction resulting in majority of users unable to perform their normal functions.30 Minutes
HighCritical loss of application functionality or performance resulting in high number of users unable to perform their normal functions.45 Minutes
MediumModerate loss of application functionality or performance resulting in multiple users impacted in their normal functions.4 Hours
LowNo loss of application functionality. Includes standard support request for configuration or installation help.1 Business Day

 

  1. Technical Support Outside Normal Business Hours. Customers with a valid 24/7 support service agreement may contact support outside of normal business hours by calling the provided 24/7 hotline number. The hotline will collect contact and problem information which will be provided to an on call technical support engineer. The call hotline will contact the on-call engineer. Biscom will use commercially reasonable efforts to return Customer’s call within one hour of Customer’s initial contact. In the rare event that an on-call support engineer cannot be located, the after-hours service will follow an escalation tree that includes alternate support engineers, support management, and executive management.
  2. Hardware Replacement. When Biscom determines that hardware replacement is required, Biscom will use commercially efforts to ship the replacement part or unit to Customer’s site. Biscom will use commercially reasonable efforts to ship the same day via overnight carrier by the close of the same business day for determinations made before 2:00 PM Eastern Time. If the determination is made after 2:00 PM Eastern Time, Biscom will use commercially reasonable efforts to ship the replacement hardware the next business day.

 

 Cloud Applications Service Support Schedule

This Cloud Applications Service Support Schedule defines Biscom’s commitments to provide support and maintenance for the Services. Capitalized terms used but not otherwise defined herein shall have the same meanings assigned to them in the Biscom Master Services and Software License Agreement or similar agreement (the “Agreement”) by and between Biscom  and Customer.

 

  1. Notification of Outages/Services Status. Customer notifications are provided via a posted message on the Biscom Cloud Application status page (https://status.biscomcloud.com/). Customers may subscribe to receive updates when status changes are posted and updated on the site. Biscom will use commercially reasonable efforts to notify customers within thirty (30) minutes of Biscom’s becoming aware of a Severity Level 1 problem, or as soon thereafter as is reasonable. Notification updates including expected resolution times will be posted as and when available.
  2. Customer Support Hours. For problems not classified by Biscom as Severity Level 1 problems (“Non-Emergency Problems”), Biscom will respond to support requests based on the Severity Levels Chart, below. Biscom standard support is available from 8:30 AM to 7:00 PM ET, Monday through Friday, excluding Biscom company holidays (“normal business hours”). Biscom Holidays include: New Year’s Day, Martin Luther King Jr. Day, Memorial Day, Juneteenth, Independence Day, Labor Day, U.S. Presidential Election Day, Thanksgiving Day, the day after Thanksgiving, Christmas Eve, and Christmas Day. Customer may pay an additional fee, set forth on an Ordering Document, for 24/7 support.
  3. Reporting Problems. Customer will use best efforts to report problems it identifies as Severity Level 1 to Biscom immediately, and Non-Emergency Problems within one (1) business day. Severity Level 1 problems can be reported during normal business hours via telephone, email to support@biscom.com, and/or via the Biscom Support Portal. For customers with 24/7 support, Severity Level 1 problems occurring outside normal business hours must be reported using the telephone hotline number provided by Biscom. Customer reports of Severity Level 1 problems submitted to Biscom after hours for customers with standard support, or submitted to Biscom after hours via any method other than the hotline for customers with 24/7 support, will be received by Biscom at 8:30 AM on the next business day. Notwithstanding the Severity Level classification selected by Customer, Biscom shall determine the Severity Level applicable to a problem in its sole discretion.
  4. Technology Requirements. Customer shall provide the internet access, firewall rules, technology and equipment reasonably identified by Biscom to support the Services. Customer shall communicate, as needed, to its users the requirements for accessing and using the Services.

Severity Levels Chart

Severity LevelDescriptionResponse Target
1The complete loss of the ability to send and receive messages from multiple methods resulting in majority of Biscom customers unable to perform their normal functions using the Services.30 Minutes
2Critical loss of application functionality for multiple customers which includes one of: unable to transmit, unable to receive, loss of receive to certain types of numbers, and direct delays of over 30 minutes.1 Hour
3Moderate loss of application functionality including items such as cover pages, OCR, intermittent translation issues, higher than expected error rate for one customer, or critical loss for one customer.4 Hours
4No loss of application functionality. Includes standard support request for configuration or installation help.1 Business Day

 

 

FAXCOM Anywhere Hosted Fax Service

Additional Terms and Conditions Schedule

This FAXCOM Anywhere Hosted Fax Service Additional Terms and Conditions Schedule (these “Terms and Conditions”), sets forth additional terms and conditions of Customer’s use of the Biscom Fax FAXCOM Anywhere Hosted Fax service (the “FAXCOM Anywhere Service”) in addition to and in connection with the provisions of the Biscom Master Services and Software License Agreement or similar agreement (the “Agreement”) in effect by and between Biscom and Customer (also referred to as “you” and “your” throughout).  Capitalized terms used but not otherwise defined herein shall have the same meanings assigned to them in the Agreement. These Terms and Conditions may be a Schedule to the Agreement or may be executed separately by the Parties. In either case, these Terms and Conditions constitute part of the Agreement..

  1. Definitions.
  • Account” shall mean either an Enterprise Account or an Office Account.
  • Enterprise Account” shall mean FAXCOM Anywhere Enterprise Cloud Faxing services that make use of Biscom’s FAXCOM Suite software and FAXCOM Suite documentation which permits the customer to fax from their entire domain. Biscom Enterprise Customers connect their companies to the Biscom cloud-based FAXCOM Servers where they send and receive faxes. FAXCOM Suite supports a number of interfaces for sending and receiving faxes, including: email, mobile clients, web and desktop clients, and APIs.
  • Office Account” shall mean the Office edition of Biscom’s Hosted Fax service which enables small-to-medium sized businesses to outsource faxing to the cloud while still keeping fax service management in-house. Office Accounts will have access to sending and receiving faxes from an email account, a web client or web services API.
  1. Description of FAXCOM Service. Biscom offers the FAXCOM Anywhere Service at its website https://www.faxcomanywhere.com/ (together with other websites owned and operated by Biscom, the “Website”).  The FAXCOM Anywhere Service is a cloud faxing service using cloud fax (SMTP and Web) and hybrid faxing. Your use of the Software provided by Biscom related to the FAXCOM Service shall be governed pursuant to the Agreement.
  1. Fax Storage.
  • Enterprise Account Storage. If you are subscribed to an Enterprise Account, Biscom does not store any faxes on our hosted sites, and the service is a transient service, meaning once faxes are received at our data centers, they are immediately sent to the Customer’s site for distribution and storage.
  • Office Account Storage. If you are subscribed to an Office Account, your faxes are either delivered to you via email (SMTP), or you access your faxes through a web client or programmatically through a web service. Faxes delivered through email are transient and immediately sent to the user without delay. Web client and web service users access faxes that are stored by Biscom. Faxes that are stored with Biscom will be limited to 90 days of storage and may be removed after that.
  • Storage Generally. Regardless of your level of service, you acknowledge that Biscom may cease offering this storage feature or change its practices and/or limitations concerning this feature at any time, including, without limitation, changing the maximum number of days that fax messages will be retained, the maximum number of messages stored at any one time, and the maximum storage space allotted on Biscom’s servers on your behalf. You further agree that Biscom has no responsibility or liability whatsoever for any failure or malfunction of this feature, whether or not such failure prevents you from utilizing the feature, including but not limited to the storage or deletion of any faxes. 
  1. Ported Fax Numbers. 
  • If you “ported in” any telephone number(s) in connection with your use of the FAXCOM Anywhere Service, you are entitled to “port out” in connection with terminating your Account only if you satisfy, and subject to, the following requirements and conditions:
  • You provide written notice to Biscom of your intention to “port out” such telephone number(s) no later than sixty (60) days after the date of termination of your Account (the “porting notice period”);
  • Your new telephone carrier provides Biscom’s telephone carrier with a duly executed porting request prior to the expiration of the porting notice period;
  • You have paid Biscom for all Services provided to you prior to the date you provide notice of your intent to terminate your Account; and
  • Prior to the expiration of the porting notice period, Biscom has received an administrative fee to cover its reasonable costs in the amount of U.S. $40 per telephone number. You hereby authorize Biscom to charge your account in the applicable amount for such administrative fees.
  • The porting process can be lengthy; if you would like to maintain your FAXCOM Anywhere Services during the porting process, you must maintain your Account in an active status and not terminate your Account until the porting out is complete. Regardless of when the port out is complete, you will continue to be responsible to pay all applicable Fees with respect to the telephone numbers until you formally terminate your FAXCOM Service. If you fail to satisfy any of the foregoing requirements set forth in Section 4.1, Biscom shall remain the customer of record of the number(s) and you are expressly prohibited from causing or attempting to cause such number(s) to be transferred to any other service provider, telephone carrier, or any other person or entity. Biscom also retains the right to reclaim the number(s) from you after the number(s) are ported out in contravention with these requirements and to seek equitable relief and damages. You understand and agree that even if you satisfy the requirements set forth in this Section 5, technical or procedural difficulties or interruptions may occur, including difficulties and interruptions caused by third party carriers and outside of Biscom’s control, when attempting to port out these numbers and such difficulties or interruptions may prevent your new carrier from porting the numbers. Biscom is not responsible for such technical or procedural difficulties or interruptions, and you will receive no refund of your administrative fee.

 

  1. Unsolicited Fax Advertisement.
  • You acknowledge that technologies and procedures such as filters, that Biscom, in its sole discretion, may use in order to attempt to terminate unsolicited fax advertisements without delivering them, may work imperfectly. You release Biscom from any claims arising out of the imperfect filtering of same.
  • Because our Numbers may be reassigned to other customers in the event your Account is terminated or canceled, and to ensure the best possible service for all customers, you are not permitted to “opt in” to receive spam faxes on the Number provided for your use under the terms of this Agreement.
Scroll to Top