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PSCX, LLC
By ordering Professional, Managed, and/or Development Services ("Services") from PSCX, LLC ("PSCX"), the customer ("Customer") agrees to be bound by these Terms and Conditions ("T&C"). Such Services shall be delivered by PSCX or by one or more of its affiliated entities in accordance with the associated Statement(s) of Work, which will form a part of this Agreement, and will be subject to the terms and conditions contained herein.
Customer engages PSCX to provide consulting, system integration, software development, and/or other services (the "Professional, Managed, and/or Development Services") set forth on Statements of Work executed by both parties ("SOWs"), each of which shall contain, at a minimum, a description of the Services to be performed and the associated fees to deliver. Each SOW shall be incorporated into and shall form a part of these T&C. In the event of a conflict between the provisions of these T&C and a SOW, the relevant provisions of the SOW shall prevail.
Unless otherwise specified on a SOW, all Services shall be performed remotely. For Services performed at Customer's premises, Customer shall (a) provide PSCX personnel with reasonable office space and necessary access to hardware and other systems and (b) comply in all material respects with applicable laws relating to the treatment of PSCX personnel who are on Customer's premises.
These T&C govern only the provision of Professional Services. Any Managed Support Services and/or Custom Development Services, including maintenance and support, to be provided by PSCX to Customer shall be governed by the additional terms and conditions set forth below in Exhibit A.
(a) In consideration of the Services, Customer will pay PSCX in U.S. Dollars (unless otherwise quoted in a different currency in either a SOW or a separate quote), the fees set forth in each SOW. PSCX fees do not include any local, state, federal or foreign taxes, levies or duties of any nature ("Taxes"). Customer is responsible for paying all Taxes, excluding only taxes based on PSCX income. If PSCX has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides PSCX with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer agrees to reimburse PSCX for its reasonable out-of-pocket expenses and costs, including travel and lodging incurred in connection with providing the Services under any SOW, if any ("Expenses").
(b) Customer and PSCX will schedule a mutually agreed time for the Services delivery. If Customer cancels or postpones such time for any reason without providing PSCX at least fifteen (15) business days advance written notice, if such notice is not provided in accordance with this Section, then Customer will be responsible for the associated Services fees as follows: (i) written notice is received by PSCX between ten (10) and one (1) business day before the scheduled commencement of the Services, then Customer shall pay fifty percent (50%) of the fees for the cancelled and/or rescheduled Services; (ii) Written notice is received by PSCX on the scheduled day of Services or Customer is not available or present (no show) on the scheduled day of Services, then Customer shall pay one hundred percent (100%) of the fees for the cancelled and/or rescheduled Service. In addition, Services must be utilized within six (6) months from the purchase date, unless otherwise specified in writing and agreed to by mutual signature between the Parties on a Statement of Work, and, if not so utilized, PSCX will have no obligation to provide such Services and Customer will not be entitled to a refund of any amounts relating thereto.
PSCX will invoice Customer for the Services fees set forth in the SOW and all Expenses at actual cost. Customer shall pay invoices per the terms defined in the SOW. Amounts that remain unpaid as of the applicable due date shall accrue interest at the lesser of one and a half percent (1.5%) per month or the maximum rate allowed under applicable law. In addition to any other rights and remedies that PSCX may have, in the event that Customer's payments are more than thirty (30) days past due, PSCX may cease providing the applicable Services until such time as Customer's account is paid in full.
(a) As used herein, "Confidential Information" means all confidential and proprietary information of a party ("Disclosing Party") disclosed 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. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
(b) The Receiving Party agrees that it will (i) use Confidential Information for the sole purpose of exercising its rights and performing its obligations under these T&C, (ii) divulge Confidential Information only to those of its employees, directors, independent consultants or agents who have a need to know such Confidential Information and who are bound by professional duty or in writing (in advance) to confidentiality and non-use obligations at least as protective of such information as these T&C, and (iii) not disclose any Confidential Information to any third party. The Receiving Party shall notify and cooperate with the Disclosing Party immediately upon discovery of any unauthorized use or disclosure of Confidential Information of the Disclosing Party. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior written notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. Notwithstanding the foregoing, Customer acknowledges and agrees that PSCX will, as part of its provision of the Professional Services to Customer, collect, store and use information obtained from Customer, including, but not limited to, information about Customer's users and customers ("Information") for the purposes of (i) providing the Services to Customer and (ii) analyzing and improving PSCX products and services. Customer represents and warrants that Customer has all rights and permissions necessary to grant PSCX access to such Information.
(c) Upon termination of these T&C for any or no reason, the Receiving Party shall (i) immediately cease all use of the Disclosing Party's Confidential Information and (ii) upon request from the Disclosing Party, either return or destroy all Confidential Information of the Disclosing Party.
(d) If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
(a) Customer shall solely own all right, title and interest in and to its Confidential Information. PSCX shall solely own all worldwide right, title and interest in and to its Confidential Information and the Deliverables.
(b) Customer will, subject to the terms of these T&C, have a perpetual, worldwide, non-transferable, non-sublicensable, non-exclusive license to use any Deliverables delivered as part of the Professional Services.
(c) Notwithstanding any other provision of these T&C: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise ("Tools") used by PSCX to develop the Deliverables, and (ii) the term "Deliverables" shall not include the Tools. To the extent necessary to use the Deliverables, Tools that are delivered with or as part of the Deliverables, are licensed, not assigned, to Customer, on the same terms as the Deliverables. As used herein, "Deliverables" shall mean any configurations, applications, reports, and/or written documentation generated for Customer in connection with the performance of the Services.
(a) PSCX MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PSCX HEREBY SPECIFICALLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS SUPPLIERS, ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(a) IN NO EVENT WILL EITHER PARTY'S (AND ITS SUPPLIERS') LIABILITY FOR DIRECT DAMAGES HEREUNDER EXCEED THE TOTAL VALUE OF AMOUNTS TO BE PAID UNDER THE SPECIFIC SOW OR SOWS AT ISSUE.
(b) IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
(c) The limitations and exclusions on liability set forth in Sections 9(a) and 9(b) above shall not apply to damages arising from a breach of a party's obligations of confidentiality under Section 6.
(d) The customer is responsible for ensuring the adherence to federal, state, and local laws and guidelines. PSCX will build, design, and/or support the system or custom application that the customer outlines during the discovery portion of their project.
(a) These T&C shall commence on the date of the engagement set forth in a SOW and shall remain in effect until terminated in accordance with the terms of these T&C. Either party may terminate these T&C upon sixty (60) days advance written notice to the other party; provided, if there is a SOW for which the parties have obligations that extend beyond such termination date, the terms of these T&C shall continue to apply until all obligations have been satisfied or until terminated in accordance with section 10(b).
(b) Either party may terminate these T&C or any SOW hereunder immediately upon written notice (i) if the other party fails to perform its material obligations under these T&C or any SOW and such failure is not corrected within thirty (30) days of written notice of the breach from the non-breaching party; or (ii) in the event the other party breaches any of its obligations of confidentiality as set forth in Section 6. In addition, PSCX may terminate these T&C or any SOW hereunder in the event Customer is more than thirty (30) days past due in its payments to PSCX.
(c) In addition to any payment obligations due by either party to the other party hereunder, the following sections shall survive termination of these T&C for any or no reason: Sections 4, 5, 6, 7, 8(b), 9, 10(c) and 12.
Customer acknowledges that PSCX may either perform the Services directly using PSCX personnel, or in whole or in part, through any of its affiliates, subsidiaries or parent companies in its group, or a local subcontractor on its behalf.
(a) The parties are independent contractors under these T&C and nothing in these T&C authorizes a party to act as an agent of the other or bind the other to any transaction or T&C.
(b) These T&C will bind and inure to the benefit of each party's permitted successors and assigns. Neither party may assign or transfer these T&C in whole or in part by operation of law or otherwise, without the other party's prior written consent. Any attempt to transfer or assign these T&C without such written consent will be null and void. Notwithstanding the foregoing, however, either party may assign these T&C without consent to the acquiring or surviving entity in a merger or acquisition in which such party is the acquired entity (whether by merger, reorganization, acquisition or sale of stock) or to the purchaser of all or substantially all of such party's assets.
(c) All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered mail (return receipt requested); or (iii) two (2) days after it is sent if by overnight delivery by a major commercial delivery service. Either party may by like notice specify or change an address to which notices and communications shall thereafter be sent.
(d) Neither party will be liable to the other for any delay or failure to perform any obligation under these T&C (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the date in which these T&C are entered into and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, cyberattack, riots, natural disasters, pandemic, any other Act of God, refusal of license by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure at reasonable cost.
(e) These T&C will be interpreted and construed in accordance with the laws of the State of Tennessee, USA, without regard to conflict of law principles. The parties hereby consent to the exclusive jurisdiction and venue of the state and federal courts located in the State of Tennessee for resolution of any disputes arising out or relating to these T&C.
(f) In the event any provision of these T&C shall be determined to be invalid or unenforceable under law, all other provisions of these T&C shall continue in full force and effect. These T&C, together with any SOW executed hereunder, contains the entire T&C of the parties with respect to the subject matter of these T&C and supersedes all previous communications, representations, understandings and T&C, either oral or written between the parties with respect to said subject matter. Any additional or inconsistent terms on any purchase order, invoice, or any form of communication shall be null and void. These T&C and any SOW may be modified or waived only in a written instrument signed by both parties. A waiver of any breach under these T&C shall not constitute a waiver or any other breach or future breaches. These T&C may be executed in counterparts and by facsimile, each of which will constitute an original and together shall constitute one instrument.
These PSCX Support Terms of Service ("Support Terms") set forth the additional terms and conditions that apply to Customer's purchase of Managed Support and/or Development Services under a Statement of Work. These Support Terms are intended to supplement the terms and conditions detailed above. Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Statement of Work.
a. "Administrator(s)" means the Customer's account administrator who has a SaaS license assigned to them for the purposes of administering account profiles, platform settings, and the overall Customer account group. Administrators may have a paid or unpaid SaaS license assigned to them, which will impact support levels as further described herein.
b. "Down" means the Services were not available to the Internet due to causes within the reasonable control of PSCX, excluding Scheduled Maintenance or other activities with advance notice. Down does NOT include any failure of Customer to access the Services due to third parties outside of the control of PSCX (such as internet service providers, network service providers or telecommunications service providers), due to Customer hardware, software, systems or networks, or if Customer is able to access the Services using a reasonable workaround provided by PSCX (e.g., unable to access the Services via a web browser, but can access the Services via the client application).
c. "Intellectual Property Rights" means all right, title, and interest to any patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, and any other intellectual property and/or proprietary rights anywhere in the world.
d. "Monthly Support Fees" means the monthly total amount paid or payable by Customer to PSCX for Managed Support Services throughout the subscription term reflected in the Order Form for any such month, exclusive of taxes and fees.
e. "2BD" means PSCX's second business day. PSCX's business days exclude weekends and PSCX-recognized holidays.
f. "Normal Business Hours" means PSCX's normal hours of operation between 8am Monday through 5pm Friday, local time. Normal Business Hours excludes weekends and PSCX-recognized holidays.
g. "Managed Support Services" is defined in Section 2.
h. "Service Interruptions" means Customer's inability to access the Services for more than fifteen (15) minutes, or any other problem relating to Customer's End Users' inability to access the Services to the extent caused by the performance of the Services, or other Services listed in the Order Form, provided such inaccessibility is not a result of any actions or inactions of Customer, its End Users, or any third parties other than PSCX's data center provider (if any). Service Interruptions shall not include Scheduled Maintenance.
i. "Support Ticket" means a unique number generated by PSCX to identify a Customer-specific reported issue. Each issue requires a separate Support Ticket, and Support Tickets must be submitted in accordance with these Support Terms.
PSCX offers subscriptions to paid, remotely delivered technical support Services. The purpose of Managed Support Services is to provide answers or resolve defects that cause a nonconformity to the Services. A resolution to a question or defect may consist of a response, link, fix, workaround, or other relief, as PSCX deems reasonable. Subject to Customer's compliance with these Support Terms, PSCX will provide the Support Services to Customer as described in these Managed Support Terms and Customer's SOW for the applicable plan subscribed to by Customer.
(applies to the full Support Program)
a. The following are not included in the Support Services:
b. Third party components such as hardware and software not procured by PSCX
c. Implementation services*
d. Configuration or administrative services*
e. Integration services
f. Customization services or other custom software development
g. Customized training*
h. Onsite services**
*Professional Services are available separately via PSCX Professional Services.
**Onsite Services and Onsite activities may be available for additional fees, if requested and agreed by the Parties in writing.
(applies to the full Managed Support Program)
a. Support Services require Customer to maintain an active subscription to a UCaaS / CCaaS Platform as defined in the Service Agreement. In the event that Customer's subscription(s) is terminated, Customer's applicable Support Services subscription and these Managed Support Terms will automatically terminate.
b. Additionally, Customer shall:
a. Term. These Support Terms shall remain in effect for as long as the Service Agreement is in effect, unless terminated in accordance with this Section (the "Term").
b. Termination. A party may terminate these Support Terms by: (a) providing written notice of termination without cause to the other party, provided that all outstanding Order Forms have expired or been terminated, or (b) providing written notice of termination for cause if the other party has materially breached these Support Terms or an Order Form and has not cured such breach within thirty (30) days of written notice of the breach. Any termination of these Support Terms will automatically lead to the termination of any active Order Form in place only with respect to the Support Services subscription contained therein.
c. Effect of Termination. In the event that these Support Terms or an Order Form is terminated, Customer shall be obligated to pay PSCX for: (i) The full amount of Managed Support Fees set forth in the terminated Order Forms, as indicated per the Service Agreement. At such time, Customer will be billed for any Support Fees and will not be credited for any pre-paid amounts toward the Support plan subscribed to. (ii) In the event Customer terminates these Support Terms or an Order Form due to PSCX's uncured material breach in accordance with these Support Terms, Customer shall be liable for Support Fees for Support Services rendered up until the effective date of the termination, but no more.
a. With respect to the Support Services, PSCX warrants that: (i) it and each of its employees, consultants and subcontractors, if any, that it uses to provide and perform Support Services has the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the Support Services in accordance with these Support Terms; and (ii) the Support Services will be performed for and delivered to Customer in a reasonable, diligent, workmanlike manner in accordance with industry standards (together, the "Support Warranty").
b. Exclusive Sole Remedy for Breach of the Support Warranty. If through no fault or delay of Customer or breach by Customer of these Support Terms or Order Form, the Support Services do not conform to the foregoing Support Warranty, and Customer notifies PSCX within thirty (30) days of such nonconformity, then Customer may require PSCX to re-perform the non-conforming portions of the Support Services. The foregoing remedy is Customer's sole and exclusive remedy for a breach of this Support Warranty.
c. No other warranties. Customer understands and agrees that except for the limited Support Warranty provided in Section 6(a), the Support Services are otherwise provided "as is" and PSCX, its affiliates, suppliers and resellers expressly disclaim all warranties of any kind, express or implied, including without limitation any warranty of merchantability, fitness for a particular purpose, or non-infringement. PSCX, its affiliates, suppliers and resellers make no warranty or representation regarding the results that may be obtained from the use of the Support Services, regarding the accuracy or reliability of any information obtained through the Support Services or that the Support Services will meet any user's requirements, or be uninterrupted, timely, secure or error free. Use of the Support Services, including without limitation any material and/or data downloaded or otherwise obtained through use of the Support Services, is at Customer's sole risk. PSCX cannot guarantee and does not promise any specific results from the provision of the Support Services.
a. PSCX Intellectual Property Rights. PSCX owns and will continue to own all Intellectual Property Rights in and to the Services, Support Services, products, features, deliverables, data tools, reports, scripts, sketches, diagrams, text, know-how, concepts, proofs of concepts, artwork, software, algorithms, methods, processes, identifier codes, materials, documentation, instructions, or other technology provided or developed by PSCX (or a third party acting on PSCX's behalf) under these Support Terms or SOW (the "Deliverables"), including modifications, enhancements, improvements or derivative works of any of the foregoing, regardless of who first conceives or reduces to practice such Deliverables. Nothing in these Support Terms or a SOW transfers or assigns PSCX's Intellectual Property Rights associated with the Deliverables or the Support Services provided by PSCX and/or licenses provided with respect to any other Services. All rights not expressly granted herein are reserved and retained by PSCX, LLC and its licensors.
b. Limited License. To the extent any Deliverable is provided by PSCX to Customer in the course of provision of Support Services, PSCX hereby grants Customer, for the sole purpose of Customer's internal use of such Deliverable, a limited, royalty-free, non-exclusive, non-transferable, revocable, and non-sublicensable license to use such Deliverable to the extent reasonably required for Customer to avail itself of the benefits of the Support Services provided by PSCX under this Support Terms, only for the duration of these Support Terms.
c. Feedback. This Section applies only to the extent the same subject matter is not addressed in the Statement of Work. By submitting ideas, improvements, suggestions, documents, and/or proposals, whether in writing, oral, or electronic, regarding PSCX services, products, deliverables, or features ("Feedback") to PSCX, Customer acknowledges and agrees that: (a) Customer's Feedback does not contain confidential or proprietary information; (b) PSCX is under no obligation of confidentiality, express or implied, with respect to the Feedback; (c) PSCX may already be developing a solution related to the Feedback; and (d) Customer grants PSCX a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use, commercialize, create derivative works of, incorporate into its products and services, and publish the Feedback for any purpose, without compensation to Customer. Customer acknowledges that it has no rights in or to anything of PSCX's (Intellectual Property or otherwise) as a result of PSCX's use of any such Feedback.
a. Non-Solicitation. Customer shall not hire or solicit the employment of any PSCX Personnel while the PSCX Personnel are providing the Support Services and for a period of one (1) year from the date that the PSCX Personnel last provided Support Services to Customer.
b. Updates. PSCX may elect to change or supplement these Support Terms from time to time at its sole discretion. PSCX will exercise commercially reasonable efforts to provide notice to Customer of any material changes to these Support Terms. Within ten (10) business days of posting changes to these Support Terms (or ten (10) business days from the date of notice, if such is provided), they will be binding on Customer. If Customer continues receiving Support Services after such ten-business-day period, Customer will be deemed to have accepted the changes to these Support Terms.
c. Order of Precedence. In the event of a conflict or inconsistency between these Support Terms and any terms contained in the Statement of Work, the conflict or inconsistency shall be resolved by giving precedence in the following order (1) the SOW; (2) these Support Terms.
d. Survival. All sections of these Support Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, and warranty disclaimers.
e. Relationship of the Parties. PSCX and Customer are independent contractors, and these Support Terms will not establish any relationship of partnership, joint venture, employment, franchise or agency between PSCX and Customer.
f. Assignment. This Section applies only to the extent the same subject matter is not addressed in the Statement of Work. Neither Party may assign these Support Terms, a SOW, or any portion thereof without the other Party's prior written consent; provided however that PSCX may assign these Support Terms, a SOW, or any portion thereof, and all of PSCX' rights and obligations thereunder without consent (a) to an Affiliate; (b) to PSCX's successor or surviving entity in connection with a merger, acquisition, consolidation, sale of all or substantially all of its assets used in connection with the provision of Support Services under these Support Terms; or (c) as part of the transfer or disposition of more than fifty percent (50%) of PSCX's voting control or assets.
PSCX Managed Support Services provide Moves, Adds, Changes, Deletions (MACDs) for UCaaS systems.
If the Customer submits a ticket between 8a-5p local time, the issue will be resolved within 48 hours on the second business day (not including holidays or weekends). Monthly ticket allocation equates to 10% of the total users the Customer has on the platform.
If the Customer submits a ticket between 8a-8p local time, the issue will be resolved within 24 hours on the next business day (not including holidays or weekends). Monthly ticket allocation equates to 12% of the total users the Customer has on the platform.
If the Customer submits a ticket at any time of day (including holidays or weekends), the issue will be resolved within 12 hours. Monthly ticket allocation equates to 15% of the total users the Customer has on the platform.