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Genesys Master Subscription Agreement

GENESYS MASTER SUBSCRIPTION AGREEMENT

All Editions

This Master Subscription Agreement (“MSA”) is executed by the parties executing, and by the execution of the linking Services Order. The parties agree that this MS­­­A may be executed by any means of signature, including electronic commerce or transmission, including facsimile, email, or acknowledgement through a webpage. By executing the Services Order, Customer agrees to be bound by the all the terms and conditions of the Agreement, including this MSA and the Appendix A  “Glossary and General Terms,” found at www.genesys.com/CloudMSAGlossary. This MSA, Appendix A, the linking Services Order and the other Schedules are incorporated into each other. By an Affiliate’s entering into a Schedule, an Affiliate agrees to be bound by the terms of the Agreement as if it were an original party. In consideration of the mutual promises and obligations in the Agreement, the sufficiency of which is hereby acknowledged, the parties agree as follows.

1. SCOPE OF THE AGREEMENT

1.1 Subject to payment of Fees, Genesys grants Customer a non-transferable, Subscription during the Subscription Term, pursuant to the Agreement, to: (a) access and use the Genesys Cloud Service pursuant to the Agreement; (b) use the Services (other than the Genesys Cloud Service) in conjunction with the Genesys Cloud Service, during the applicable Term.

1.2 In the event of a conflict between a Schedule and this MSA (a) this MSA shall prevail if the applicable terms at issue in this MSA include language to the effect of “Notwithstanding anything to the contrary set forth in the Agreement (or the conflicting Schedule)”; otherwise, (b) the terms the Schedule shall prevail but only for the express purposes of the Schedule, or the subject matter addressed by the inconsistency.

1.3 During the Agreement Term, if Customer is current in payment of the Fees, at all times has no less than two Customer personnel who have completed the initial Training, and is otherwise not in default of the Agreement, Genesys shall provide Support to Customer at the applicable Support Level. Genesys reserves the right to update Support upon commencement of a Renewal Term by providing written notice at least thirty (30) days prior to such renewal date. Support updates shall appear at the Customer Portal www.genesyscloud.com.

1.3 Customer may retain Genesys to configure and/or PS Implement the Genesys Cloud Service, and perform such other Professional Services as set forth in a SOW.

2. PAYMENT

Unless otherwise stated in a Services Order: (a) all Fees are quoted and payable in in the currency set forth in the applicable Services Order ; and, (b) recurring Fees may be invoiced in advance and overage and other Fees shall be invoiced in arrears. (c) Unless otherwise stated in an SOW: (i) Customer will be invoiced for fifty percent (50%) of the PS Implementation (or other Professional Services) Fees upon execution of such SOW. Customer will be invoiced the remaining fifty percent (50%) of the PS Implementation (or other Professional) Services Fee upon performance of the PS Implementation under such SOW. In the event that travel is required under an SOW, Customer shall reimburse Genesys in accordance with the Genesys Travel Policy. If any amount owed for Services is thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts for which Genesys is authorized to charge to a credit card), Genesys may, without limiting other rights and remedies, accelerate all unpaid fee obligations so that all such obligations become immediately due and payable; no additional cure period will apply. Customer will be responsible for paying any applicable Taxes and Regulatory Charges, for any Fees paid or Services received or subscribed as under the Agreement, and applicable Fines. If not paid by Customer, and Genesys pays or becomes obligated to pay any such amounts, and Genesys shall invoice and Customer shall pay such amounts as directed by the applicable invoice. Without prejudice to any other rights of Genesys under the Agreement, Fees expenses and other amounts not received by Genesys by the date due shall be subject to a charge of the lesser of: one and a half percent (1½%) per month, or the maximum charge permitted by Law.

3. TERM AND TERMINATION

Subscription Term shall commence after conclusion of Incremental Service, and upon the earliest of: the Planned Provision Date; the Provision Date; or, Customers use of the Service in a production environment.  Each Subscription Term, shall automatically renew for Renewal Subscription Terms as set forth in the applicable Services Order. In the event a Services Order or SOW terminates or expires past the termination of this MSA, the Agreement shall be deemed to survive solely with respect to such Services Order or SOW until such Services Order or SOW is terminated or expires.

3.2 Either party will have the right to terminate the Agreement by written notice to the other party if (a) the other party has materially breached any Agreement obligation and such breach remains uncured for a period of thirty (30) days after written notice of such breach is sent to the other party; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination by Customer, for breach by Genesys, Genesys shall refund any prepaid Fees covering the remainder of the Subscription Term after the effective date of termination. Upon any termination by Genesys, for breach by Customer, Customer shall pay any unpaid Fees covering the remainder of the Subscription Term after the effective date of termination, and prepaid fees shall not be refunded.. Notwithstanding the foregoing, Genesys reserves the right, without prior notice, to suspend Customer’s access to the Genesys Cloud Service, or reject or cancel the transmission of any information (including Messages) through the Genesys Cloud Service, and suspend and/or revoke any other Services, Support and/or rights granted based upon reasonable belief ((a) i) that Customer is in breach of Section 8, Compliance with Laws, applicable privacy protection obligations, or Genesys’s intellectual property rights; (ii) it is necessary in order to repair or enhance the performance of its network; or, (iii) due to a Provider’s blockade, that is not due a breach by Genesys of the Provider agreement, provided that if Genesys  receives notice of such fact from the applicable Provider, Genesys shall promptly notify Customer of such event; (b) that failure to suspend such access is likely to result in (i) legal liability to Genesys or Customer, or (ii) negative impact to Genesys’s other customers or to the integrity and security of its network; or, (c) Customer’s failure to pay any amount due and owing within thirty (30) days of the payment due date for such payment (excluding amounts disputed in good faith). Genesys reserves the right to impose a re-start fee in the event of any suspension under the Agreement, and thereafter reinstated or re-started. Termination of the Agreement, or any Schedule, by either party shall not act as a waiver of any breach of the Agreement or any Schedule, and shall not act as a release of either party from any liability for breach of such party’s obligations under the Agreement or any Schedule.  Neither party shall be liable to the other for damages of any kind solely as a result of terminating the Agreement/Schedule in accordance with its provisions, and termination of the Agreement/Schedule by a party shall be without prejudice to any right or remedy of such party under the Agreement/Schedule or applicable Law.

3.3 Except as otherwise stated therein, upon execution by both parties, each Services Order shall be a non-cancelable, non-refundable order by Customer. The Fees and Subscription Term for stated on each Services Order shall be applicable only for that Services Order (and renewals thereof) and shall apply whether or not: during periods of suspension, or incurred for Improper Communications, or other unauthorized use of the Service. In no event shall any termination relieve Customer’s obligation to pay any Fees payable for the period prior to the effective date of termination, and any Fees due from Customer to Genesys prior to the termination date shall be payable and due immediately upon termination.

4. INTELLECTUAL PROPERTY

4.1 The Services and all Derivative Works, are the proprietary material of Genesys or its third party licensors including all rights protected by intellectual property Laws. Some or all of the Services are patented or have patent applications pending. Except through use of tools made available by Genesys to Customer for such Customer’s personal or internal business use, Customer may not modify, reproduce, download, record or store in a retrieval system, or distribute the features, functions, content, graphics, design or layout of the Services, or portions of the Services or Genesys logos or other proprietary marks.  To the extent such tools are provided, the results and proceeds of such use (other than Customer’s Existing Intellectual Property, which shall be retained by Customer) shall be deemed Genesys’s Derivative Works, and shall be governed by the terms of the Agreement. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and shall promptly notify Genesys of any such unauthorized access or use. Subject to the limited rights expressly granted hereunder, Genesys reserves all rights, title and interest in and to the Services, including all related intellectual property rights. Customer is granted no rights hereunder other than as expressly set forth under the Agreement. Customer (on behalf of itself and its Related Parties) hereby assigns to and, if applicable, waives in favor of Genesys, all rights (including non-performance of moral rights), title and interest in and to the Creations and Feedback. To the extent, and for any reason the foregoing assignment or waiver is not effective, Genesys shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use, or incorporate into the Services any Creation or Feedback. Customer shall not (a) create Derivative Works based on the Services, (b) reverse engineer the Services, or (c) access the Services in order to build a competitive product or service. Customer agrees to take any action reasonably requested by Genesys to evidence, maintain, enforce or defend the foregoing rights, and agrees not to take any action to jeopardize, limit or interfere in any manner with Genesys’ ownership of, and rights with respect to the Services or Derivative Works. Genesys shall reimburse Customer for all reasonably incurred direct costs for any assignment provided by Customer under this Section 4.1.

4.2 As between Genesys and Customer, the Customer Data and Messages are the proprietary material of Customer and shall be considered Customer’s Confidential Information. Customer grants Genesys a non-exclusive, non-sublicenseable (except to parties working on Genesys’s behalf), non-transferable, limited, royalty free license to store, transmit, and otherwise make use of the Customer Data and Messages for Customer’s benefit during the Agreement Term as directed by Customer or as necessary to provide the Services and to otherwise fulfill its obligations under and in accordance with the Agreement. Customer shall be solely responsible for and Customer shall comply with all requirements of integrity, quality, legality and all other similar aspects in respect of Customer Data and Messages or a web page created by Genesys at Customer’s direction.  Under no circumstances will Genesys be responsible for any loss, damage or liability arising out of Genesys’s authorized use, in accordance with the Agreement, of Customer Data or Messages.

5. REPRESENTATIONS AND WARRANTIES

THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” ‘WHERE IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. GENESYS MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS, CURRENCY, LEGALITY OR RELIABILITY OF ANY CONTENT AVAILABLE THROUGH THE GENESYS CLOUD SERVICE. CUSTOMER IS RESPONSIBLE FOR VERIFYING ANY INFORMATION BEFORE RELYING ON IT. USE OF THE SERVICES AND THE CONTENT AVAILABLE ON OR THROUGH THE SERVICES ARE AT CUSTOMER’S SOLE RISK. GENESYS MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE GENESYS CLOUD SERVICE WILL BE UNINTERRUPTED, TIMELY, COMPLETE, OR ERROR-FREE. CUSTOMER IS RESPONSIBLE FOR TAKING ALL NECESSARY PRECAUTIONS TO ENSURE THAT ANY CONTENT OR MESSAGES CUSTOMER MAY OBTAIN FROM OR SUBMIT TO THE SERVICES ARE FREE OF VIRUSES.

Voice Quality. If Customer’s use of the Genesys Cloud Service is over an Internet connection, unmanaged by the provider or other authorized third party, Customer acknowledges that the voice quality may be inferior to the voice quality that would result from the use of managed voice/data circuits and Customer agrees that if voice quality is unsatisfactory, Customer will upgrade to managed Communications Circuits at Customer’s expense.

6. LIMITATION OF LIABILITY

EXCEPT FOR CLAIMS ARISING FROM CUSTOMER’S BREACH OF SECTIONS 4, 8 OR 9, THE CUMULATIVE AGGREGATE LIABILITY OF A PARTY AND ALL OF ITS RELATED PARTIES TO THE OTHER PARTY AND ALL OF ITS RELATED PARTIES UNDER THE AGREEMENT SHALL NOT EXCEED DIRECT DAMAGES IN THE AMOUNT OF THE LESSER OF THE FEES PAID TO GENESYS FOR THE SERVICES: (A) THAT ARE THE SUBJECT OF THE DISPUTE; OR, (B) DURING THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE COMMENCEMENT OF THE SUBJECT OF THE DISPUTE. (C) IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS RELATED PARTIES BE LIABLE TO THE OTHER PARTY OR ANY OF ITS RELATED PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS, REVENUE, DATA OR USE), WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF SUCH PARTY OR ANY OF ITS RELATED PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AN AGREED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS HELD UNENFORCEABLE FOR ANY OTHER REASON. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL ELEMENT OF THE AGREEMENT, AND THAT IN ITS ABSENCE THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. (D) THIS LIMITATION OF LIABILITY SHALL NOT OPERATE SO AS TO REDUCE: (I) ANY AMOUNTS DUE AND OWNING AS FEES FROM CUSTOMER TO GENESYS; OR, (II) INDEMNIFICATION OBLIGATIONS.

7. CONFIDENTIALITY

7.1 During the Confidentiality Period, recipient shall (a) protect all Confidential Information using 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) to prevent unauthorized use or disclosure; (b) not use any Confidential Information except as expressly authorized in the Agreement (c) not disclose, orally or in writing, any Confidential Information to any person, other than an employee, consultant or agent of recipient bound by terms at least as restrictive as those set forth herein with a need to know such Confidential Information; and, (d) immediately report in writing to discloser, and shall cooperate with discloser in the investigation of any unauthorized copying, use, or disclosure of the Services, or any other Confidential Information, that is known to or reasonably suspected by recipient. Within ten (10) days of termination of the Agreement, each party shall deliver to the other party, or destroy, all copies of such other party’s Confidential Information.

7.2 The obligations in this Section 7, however, shall not apply to any information which:  (a) is already in the public domain or becomes available to the public through no breach of the Agreement by recipient; (b) was in the recipient’s possession prior to receipt from discloser, as proven by recipient’s written records; (c) is received by the recipient from a third party free to disclose such information to recipient; (d) is required by applicable Law judicial or administrative process, to be disclosed or retained provided that recipient shall: (i) notify discloser of such, affording opportunity for discloser to take protective actions, and (ii) disclose only as much of the Confidential Information as required, maintaining all proprietary notices applicable to such Confidential Information; or, (e) is independently developed by recipient without use of the Confidential Information.

8. COMPLIANCE WITH LAWS

Without limiting the mutual compliance with Laws set forth in the Glossary, as an express condition of the Agreement, Customer agrees and acknowledges the following. At all times during the Agreement Term, Customer shall be compliant with all applicable Laws and standards, including the Payment Card Industry Data Security Standards (PCI/DSS) if Customer provides credit card information to the Services. Customer shall not use nor permit third parties to use the Services in any manner that violates applicable Laws or causes Genesys, or any of its Related Parties to violate applicable Laws, including but not limited to such items governing outbound telemarketing, emergency dialing, debt collection, call recording, data protection and privacy. Customer shall Indemnify Genesys, and its Related Parties, for Customer’s failure to abide by its obligations under this Section 8.

9. USE OF SERVICES

9.1 Security Features. (a) Private Variables. Customer represents, warrants, and shall ensure that in respect of its use of CX Builder, and all Customer Data transmitted though CX Builder or the results and proceeds of Customer’s use thereof: (i) all Sensitive Information is captured and used solely via the use of Private Variables, which such action is acknowledged by Customer as solely within Customer’s control; and, (ii) wherever Private Variables are transmitted to web services, Customer agrees that such transmittals are required to be through https://; (b) Recordings. Customer acknowledges that Recordings are solely within its discretion and control. Without limiting the foregoing, to that end: (i) Customer accepts sole responsibility for determining the method and manner of performing recording such that it is compliant with all applicable Laws and for instructing the services accordingly; (ii) Customer shall ensure that Recordings shall be made only for diagnostic, quality assurance, archival, and/or Support purposes, and in any event only for purposes required and/or allowed by, and in full compliance with, all applicable Laws.  (iii) in the case of Genesys Cloud Communication Service, Customer will instruct the Genesys Cloud Communication Platform not to retain the Recordings for more than 14 days;  (iv) Customer will ensure that Recordings will not knowingly include any bank account number, credit card number, authentication code, Social Security number, or other personal or Sensitive Information, except as allowed or required by all applicable Laws; (v) to the extent Recordings are encrypted, or electable by Customer as part of the Service, Customer shall elect such encryption, and Customer shall not modify, disable, or circumvent the Recording encryption feature within the Service and shall otherwise ensure that it will use the Service in compliance with the encryption feature; and,  (vi) Customer agrees to direct its Users to instruct Persons being called not to disclose any Personal Information and to immediately stop the Recording via the User interface should any Sensitive Information be disclosed, and delete Recordings containing the Sensitive Information.   (c) Improper Communications.. Customer shall maintain strict security over all VoIP Services lines. In the event (i) Customer discovers or reasonably believes Improper Communications are being made or have been made, Customer shall immediately notify Genesys; (ii) of any use of the Services for Improper Communications, and without limiting any Indemnification by Customer under the Agreement, Customer will be responsible to Genesys, the applicable carrier(s) and/or service provider(s), and each of their suppliers for all fees, costs and claims.

(d) Customer Responsibilities. Notwithstanding anything to the contrary in the Agreement, and without limiting Customer’s other Indemnifications under the Agreement, Customer shall Indemnify Genesys, and its Related Parties, for Customer’s act or omission under Section 9, such as resultant from information (i) which is not captured or shared through use of Private Variables or which is not transmitted to web services through https://; or, (ii) in respect of (A) Recordings which Customer has chosen not to encrypt, or otherwise violates the Agreement or Laws; and, (B) Improper Communications or, (C) use of the Services in violation of Section 9.3. Such release and Indemnification shall include any and all liability related to breaches of confidentiality requirements or other legal requirements related to Sensitive Information (including but not limited to requirements for PHI and PII).

9.2 Customer Data (a) Protection of Customer Data.  (i) Genesys Protection. Provided Customer is fully compliant with the above Section 9.1, (A) Genesys shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data; and, (B) at all times during each Subscription Term, Genesys shall maintain its status as a level 1 PCI DSS compliant service provider and comply with applicable credit card association rules regarding cardholder data security. (ii) Genesys shall not: (A) modify Customer Data; (B) disclose Customer Data except as required by Laws in accordance with the above Section 7.2 (d), or as expressly permitted in writing by Customer; or, (C) access Customer Data except to provide the Services and prevent or address Service or technical problems, at Customer’s request in connection with Support, or to the extent otherwise permitted in the Agreement. (iii) Customer Protection. Customer agrees to maintain an appropriate administrative, physical, and technical level of security regarding its account ID, password, and connectivity with the Services. Without limiting any Indemnification obligations of Customer, Customer shall be solely responsible, Genesys shall have no liability, and Customer shall Indemnify Genesys, and its Related Parties, for account ID or password having been stolen, compromised, or used for malicious purposes, including in respect of all use of the Services using the stolen account information. (b) Use of Customer Data. Without limiting anything else contained in the Agreement, Customer warrants and represents that it shall obtain all consents necessary for Genesys to provide the Services in connection with the Customer Data, and otherwise use the Customer Data pursuant to the Agreement, including those related to the transfer of any Customer Data across a country border, and other protection and use of the Customer Data, and that Customer’s use of Customer Data will not comprise an act restricted under Section 9.3 of this MSA.   Customer acknowledges and agrees that the Customer Data may be transferred or stored outside the country where Customer and its customers are located order to carry out the Services and Genesys’s other obligations under the Agreement. Customer further represents and warrants that the use of Customer Data by Genesys, as authorized under the Agreement, is not in violation of any Law, or in breach of any covenant or obligation of confidentiality that Customer has to any person or entity. Customer acknowledges that Genesys has no responsibility to review or monitor any Customer Data including reviewing or determining the legality, accuracy or completeness of Customer Data used through the Services.  Genesys, however, reserves the right to take any action with respect to the Services that Genesys deems necessary or appropriate in its sole discretion, if Genesys reasonably believes Customer’s use of the Services could create liability for Genesys, its Related Parties and/or its suppliers or could compromise or disrupt services provided to other customers.  Genesys will have no obligation to maintain a system-level backup of the Customer Data, other than in accordance with applicable Laws. (c) EU Directive Obligations.  In addition to the other obligations of each party under this Section 9, each party will comply, and will ensure that its personnel and subcontractors comply, with the EU Directive 95/46/EC, or such similar Laws within or outside of the EU (“Similar Data Security Laws”)  (“EU Directive”) as it applies to the performance of such party’s obligations under the Agreement. To the extent that either party is a Data Processor such party shall only process Personal Data in accordance with the instructions of the Data Controller.  (The terms “Data Processor”, “Data Controller” and “Personal Data” are as defined in the EU Directive, and shall be deemed to denote analogous terms under Similar Data Security Laws.)  The Data Processor shall promptly notify Data Controller if it receives any complaint, notice or communication which relates directly or indirectly to the processing of Personal Data under the Agreement, and provide full co-operation and assistance in relation to any such complaint, notice or communication.

9.3 Transmissions and Other Use Customer represents and warrants, and shall ensure that it and all Users shall not: (a) use the Services, in whole or in part, to (i) store, Initiate or transmit material (including Customer Data and Messages) that is infringing, libelous, defamatory, abusive, harmful to minors, designed to cause annoyance, inconvenience or distress to any person; comprises unsolicited marketing (i. e. spam), in violation of third-party privacy or property rights, or otherwise tortious or in violation of Law (ii) transmit Malicious Code, (iii) transmit 911 or any emergency services or other Improper Communications (or reconfigure to support or provide such use); and, Customer acknowledges that (A) Genesys does not provide Customer the ability to reach 911 or other emergency services; and, (B) Customer: (1) is solely responsible for providing an alternative means for 911 access to emergency services and for any associated costs, including interconnection costs and governmental fees or assessments; and, (2) Customer agrees to inform any individuals who may be present where the Services are used, or who use the Services, of the non-availability of 911 dialing; (b) interfere with, unreasonably burden, or disrupt the integrity or performance of the Services or third-party data contained therein; (c) attempt to gain unauthorized access to the Services or its related systems or networks; (d) provide the Services to non-User third parties, including, by resale, license, lend or lease; and, (e) without Genesys’s prior written consent, imply or state, directly or indirectly, that Customer is affiliated with or endorsed by Genesys; or, publicize the existence of the Agreement, or any of its terms. Customer will use best efforts to prevent and/or block any prohibited use, and will cooperate with Genesys to prevent or cease such use from continuing.  Customer will notify Genesys immediately, in writing, if it knows or has reason to know that that the Services are being used in violation of the Agreement, of such violation(s), and the basis for such knowledge, and shall Indemnify Genesys, and its Related Parties for such violative use9. Data Retention. Without limiting anything set forth in this MSA, Data will be stored by the Genesys Cloud Services, if at all, for the time periods set forth in the applicable User Guide.

9.5 Customer Responsibilities. Notwithstanding anything to the contrary in the Agreement, without limiting Customer’s other Indemnifications under the Agreement, Customer shall Indemnify Genesys, and its Related Parties, for Customer’s act or omission under Section 9, such as resultant from information (a) which is not captured or shared through use of Private Variables or which is not transmitted to web services through https://; (b) in respect of (i) Recordings which Customer has chosen not to encrypt, or otherwise violates the Agreement or Laws; and, (ii) Improper Communications; or, (c) use of the Services in violation of Section 9.3. Such release and Indemnification shall include any and all liability related to breaches of confidentiality requirements or other legal requirements related to Sensitive Information (including but not limited to requirements for PHI and PII).

Customer acknowledges and agrees that this Section 9 is an essential element of the Agreement and that in its absence, the economic and data protection terms of the Agreement would be substantially different.

10 INDEMNIFICATION

10.1 Genesys shall Indemnify Customer and its Related Parties for a finding that the Genesys Cloud Service has or continues to infringe(d) such third party’s intellectual property rights, identified in a patent or copyright that is enforceable in the United States.  Notwithstanding the foregoing, Genesys shall not be liable and shall have no obligation to Customer, and its Related Parties, for any claim arising from or based upon (a) the use of the Genesys Cloud Service outside the scope or terms, or upon or after the termination of the Agreement; or (b) if the claim would not have arisen without (i) any modification of the Genesys Cloud Service by Customer or a party acting under Customer’s direction or control; (ii) the combination of the Service with any technology (including software), equipment or other device, product or service that causes any modification, intentional or inadvertent, to the Services; or, (iii) use of the Protected Assets after receipt of notice from Genesys to discontinue such use; or, (c) Customer’s actions against the third party intellectual property holder.  (d) In the event that it is determined or Genesys believes that the Genesys Cloud Service has violated the third party’s intellectual property rights, Genesys shall:  (i) obtain for Customer the right to continue using the Genesys Cloud Service, (ii) replace or modify the Genesys Cloud Service so that it becomes non-infringing while retaining substantially similar functionality; or (iii) if neither of the foregoing remedies can be reasonably effected by Genesys, terminate Customer’s right to use the Genesys Cloud Service and refund to Customer the Fees paid for the Genesys Cloud Service in the amount of the lesser of the (A) prepaid, unused Fees; or (B) Fees paid during the immediately prior twelve (12) month period. The provisions of this Section 10 state the sole, exclusive, and entire liability of Genesys to Customer, and are Customer’s sole remedy, with respect to the infringement of third party intellectual property rights.

10.2 (a) Each Indemnification obligation under the Agreement shall be conditioned upon the following. The Indemnified party shall take all reasonable steps to mitigate any potential expenses and shall provide the Indemnifying party with:  (i) prompt written notice of any such claim or actions, or possibility thereof upon becoming aware of the same; (ii) relevant information (subject to confidentiality restrictions the Indemnified party owes to third parties), authority and reasonable assistance to settle or defend and such claim or action; (iii) tender sole control and authority over, and reasonably assist with the defense or settlement of such claim or action, subject to Section 10.2. (b)(i) The Indemnified party shall have the right to approve counsel selected by the Indemnifying party to defend the Indemnified party, which approval shall not be unreasonably withheld or delayed.  (ii) Notwithstanding the foregoing, the Indemnified party shall have the right to retain counsel of its own choice, at its own expense, in respect of the subject of the Indemnification, for purposes including services as co-counsel, or to monitor the defense provided by the Indemnifying party’s appointed counsel. (iii) In the event that the Indemnifying party (A) fails to defend the Indemnified party or (B) insists upon a defense of which the Indemnified party, in good faith and in the exercise of reasonable judgment, does not approve, then the Indemnified party shall have the right to the sole control and authority over the defense and settlement of the claim, including the engagement of counsel of its own choice, the fees and costs of which shall be the sole responsibility of Indemnifying party.

10 Marketing. Customer grants Genesys the right to use Customer’s name and logo to identify Customer as a Genesys customer. Subject to prior written approval of content, Customer grants Genesys the right to issue a press release after execution of the Agreement announcing that Customer has become a Genesys customer, and to make other announcements and place promotion in various publications and media.

11. Assignment. Customer may not assign its rights or obligations under the Agreement, either in whole or in part, without the prior written consent of Genesys. Without limiting the preceding sentence, the rights and liabilities of the parties hereto shall bind and inure to the benefit of their respective successors and assigns.

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