Direct Subscription Addendum

Direct Subscription Addendum

BY EXECUTING A SERVICE ORDER THAT INCORPORATES THESE THIS ADDENDUM, CUSTOMER AGREES TO FOLLOW AND BE BOUND BY THESE TERMS AND CONDITIONS FOR THE PRODUCTS AND SERVICES PROVIDED UNDER THIS ADDENDUM. THE PERSON ENTERING INTO THIS ADDENDUM ON BEHALF OF CUSTOMER CONFIRMS THAT HE OR SHE HAS READ AND UNDERSTANDS THE TERMS AND CONDITIONS OF THIS ADDENDUM AND HAS THE AUTHORITY TO BIND CUSTOMER AND ITS RELATED PARTIES HERETO.

SUBSCRIPTION LICENSE ADDENDUM

*** CONFIDENTIAL ***

1. Preamble and Recitals.

1.1.  The Effective Date of this Subscription License Addendum (“Addendum”) is the date of the Services Order to which this Addendum is linked (“Services Order”). This Addendum is made pursuant to the Master Software License and Services Agreement (“Agreement”) linked to the Services Order.

1.2.  The provisions of this Addendum shall apply to all Orders issued by Customer with respect to Affiliate(s) and Site(s) for premise based Software licensed on a subscription basis and any Services related thereto. This Addendum shall only apply to premise based Software to be used in production and licensed on a subscription basis. The definitions contained in the Agreement shall apply to this Addendum.

2. Software.

2.1. Grant of License

2.1.1.  Subject to the terms of this Addendum, including any limitations contained in the applicable Services Order, Agreement or Schedule, Genesys hereby grants to Customer and Customer accepts a non-exclusive, non-transferable, revocable, term license, without right to sublicense, to use the Software products in the quantities and License Unit Types described in an Order or Schedule within the United States and Canada in accordance with the applicable Documentation and License Unit Type during the Subscription Term(as defined below). The Software is provided as a license and not a sale and Customer’s right to use the Software and Documentation shall be limited to those expressly granted in this Addendum. Without limiting the generality of the foregoing, Customer has no right to receive any source code for Software and no implied licenses are granted hereunder. Customer is hereby granted a license to use the Creations solely in connection with, and under the same provisions as, its use of the Software.

2.1.2.  Except as otherwise set forth herein, the Software is licensed as set forth in the Agreement.

3. Maintenance and Support.

3.1.  Maintenance and Support as set forth in the Agreement shall be provided as part of the subscription fees set forth in the Services Order.

4. Subscription Term, Invoicing, Payment and System Requirements.

4.1.  Initial Subscription Term. The Initial Subscription Term will begin on the date of the initial invoice and will continue for the term set forth in the Services Order. Thereafter, any renewal terms shall be for an additional one year period unless otherwise agreed upon by the parties. (the “Renewal Term”).

4.2.  Renewal and Termination. Genesys shall notify Customer of an impending expiration at least ninety (90) days prior to the last date of the Initial Subscription Term or a Renewal Term (“Expiration Date”) and Customer shall, at least sixty (60) days prior to the then-current Expiration Date, either notify Genesys of its intent not to renew or issue a renewal purchase order or Order with payment due on or before the Expiration Date. All renewals of Subscription Licenses must be for all Licensed Software covered under the prior Term and Genesys will not accept partial renewals of Subscription Licenses without repricing in a manner consistent with pricing thresholds of the remaining licenses under Subscription. Upon renewal Customer will pay the applicable fee(s) unless otherwise terminated as set forth herein. The Initial Subscription term plus any applicable Renewal Terms shall together make up the “Subscription Term”. Either party may terminate this Addendum for its convenience as of the end of the Initial Subscription Term or the then-current Subscription Term by providing written notice to the other party at least thirty (30) days prior to the end of the then-current Subscription Term. For the avoidance of doubt, however, upon execution by both parties, the Services Order and each subsequent Services Order for renewal shall be a non-cancelable, non-refundable order by Customer.

4.3. Price Increases. Genesys may increase the annual fees on the anniversary of the start of the Initial Subscription Term or applicable Renewal Term in accordance with the Services Order.

4.4. Invoicing and Payment. For the first year of the Initial Subscription Term, the Customer will be invoiced annually in advance upon the Effective Date of this Addendum for all regular annual fees at the rates set forth in the Services Order. Thereafter, for the second year of the Initial Subscription term and for each Renewal Term, regular annual fees, including any fee increases as set forth in Section 4.3 and any additional quantities licensed in accordance with the Services Order, will be due and payable annually in advance. Non-recurring Fees, overage and other fees will be invoiced monthly in arrears.  Payments will be due within thirty (30) days from and after the date of the applicable invoice.

4.5. Suspension of Services for Nonpayment. Genesys may terminate the Agreement or suspend the Subscription License in the event Customer fails to make any payments under the Agreement when due.

4.6. System Requirements. Customer agrees to maintain minimum system requirements prescribed by Genesys, which may include a requirement to install, operate and otherwise maintain the latest version of the Software. Customer is responsible for procuring any applicable hardware, equipment, third party software, and network or communication services, required to support Customer’s use of the Software or Subscription Services at the Customer’s usage levels.

4.7. Customer may elect to purchase additional licenses during the applicable Subscription Term at the price reflected in Genesys’ then current price list.  Any such licenses will terminate at the end of the Subscription Term in which they are purchased. For example, if Customer agreed to a two (2) year Subscription Term and Customer purchased additional licenses in the second year of such Term, then all of the Customer’s licenses will terminate at the end of the two (2) year Subscription Term.  Further, the increased minimum license commitment shall be maintained during any Renewal Term(s).

5. Usage Data and Audit

5.1. Reporting. Customer agrees that Genesys may directly access validated log, configuration and other files, system tool outputs, and other system information sufficient to provide auditable data of Customer’s use of all Software provided hereunder. Such review will include the placement of a Genesys approved license verification functionality within Customer’s environment at all times during the period of usage. Genesys may only use such information for the following  purposes:

5.1.1. To determine Customer usage for billing and compliance purposes

5.1.2. To collect general usage and technical data for the purposes of improving products and services. Genesys will not disclose any of this information in a form that personally identifies Customer or Customer’s customers.

5.2. Audit. Customer agrees that Genesys or its designee may audit the Customer’s use of the Software solely for the purpose of determining Customer’s compliance with the provisions of this Addendum. Customer will cooperate fully with Genesys and/or its designee in any official or unofficial audit conducted hereunder. If Customer is not in compliance with the provisions of this Addendum, Customer will correct any failure of compliance including without limitation paying any additional fees that may be due and, if such non-compliance is material, Customer will pay the reasonable costs of the audit. Customer further agrees to maintain records sufficient for Genesys to verify compliance with the provisions of the Agreement during the Term of the Agreement and for two (2) years thereafter

5.3. Usage Data. Genesys may use reported usage data for the purposes of improving products and services. Genesys will not disclose any of this information in a form that personally identifies Customer or Customer’s customers

6. LIMITATION OF LIABILITY.

6.1.  THE PARTIES AGREE THAT THE FOLLOWING LIMITATION OF LIABILITY WILL APPLY TO ANY CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS ADDENDUM IT BEING UNDERSTOOD THAT A MODIFIED LIMITATION OF LIABIITY IS APPROPRIATE GIVEN THE SUBSCRIPTION BASED NATURE OF THE LICENSE GRANTED HEREIN:

6.2.  THE AGGREGATE AND TOTAL LIABILITY OF GENESYS AND ITS LICENSORS FOR ANY LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THIS ADDENDUM WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE SOFTWARE THAT CAUSED THE DAMAGES DURING THE TWELVE (12) MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN GENESYS AND CUSTOMER AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO GENESYS. THIS SECTION WILL NOT APPLY TO DAMAGES THAT CANNOT BE LIMITED OR EXCLUDED BY LAW (IN WHICH EVENT THE LIMITATION WILL BE THE MINIMUM AMOUNT REQUIRED BY LAW).

7. General.

7.1. Except as amended herein, all other terms of the Agreement shall remain in full force and effect

7.2. Entire Agreement. The Services Order, this Addendum, the Agreement and any executed Amendment(s) and additional Addendum(s) are the complete and entire Agreement between the parties concerning the subject matter hereof as of the Effective Date. The provisions of the Agreement shall supersede any conflicting or additional provisions on any purchase order or Order, including any entire agreement clause or other clause on any such Order which generally purports to supersede all previous agreements.

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