**Updated August 8, 2023**
The terms and conditions of this Subscription Software License Agreement and the documents referenced herein (the “Agreement”) shall apply to all Genesys Subscription Software and is an Agreement between the Genesys entity (“Us,” “We,” “Our”) and the customer entity both indicated on the on the Services Order.
This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter hereof, superseding all prior or contemporaneous Agreements, representations, promises and understandings, whether written, electronic, oral or otherwise. Except as expressly provided herein, each party acknowledges and agrees that by executing the terms and conditions specified in this Agreement, (i) it is not relying upon any other statements, representations, warranties, promises, assurances, or the like, (ii) no remedies are, or will, be available to a party with respect to the foregoing, and (iii) such remedies are unconditionally and irrevocably waived; provided, the foregoing shall not apply to any acts of fraud by a party.
Region-specific and Country-specific Provisions. Unless otherwise indicated in the heading of the applicable section, all sections are applicable to You and Your Affiliates regardless of the country or region from which You or Your Affiliates use the Genesys Subscription Software. Country or region-specific provisions shall be applicable to You and Your Affiliates when using in the referenced region or country.
This Agreement takes effect on the date when both parties have executed a Services Order for the Genesys Subscription Software (the “Effective Date”), and such Service Order will be governed by this Agreement.
1.1 Scope. This Agreement shall apply to all Genesys Subscription Software that You license from Us.
1.2 Definitions. In addition to the terms defined elsewhere in the Agreement, some defined terms that You should be familiar with are:
Affiliate: A business entity that: (a) Controls the subject party; (b) is Controlled by such party; or (c) is under common Control with the party but only during the time that such Control exists. For the purposes of this definition, “Control(led)” is the ability to determine the management policies of an entity through equity ownership of a majority of shares or by control of the board of management.
AppFoundry: The Genesys marketplace website where Customer may purchase third party software applications to integrate with the Genesys Subscription Software.
Documentation: The applicable technical instructions describing the operation of the Subscription Software found at https://docs.genesys.com/Documentation (for Genesys Engage) and https://help.genesys.com/resource-center-pureconnect.html (for PureConnect).
Exclusions: Claims arising from any of the following conditions, which are deemed excluded from and that terminate Our warranty, defense or indemnity obligation: (i) use of Materials in combination with any non- Genesys equipment, software, services, processes, data or materials; (ii) Your non-compliance with this Agreement or Documentation; (iii) Your use of Materials after receipt of notice from Us to discontinue such use, including Your failure to use modifications provided by Us; (iv) the development or use of any alteration, derivation, modification or customization of the Materials; (v) Our compliance with Your requests or instructions or the use of any materials or data provided by You; or (vi) Your business method(s) or process(es).
Feedback: any suggestions, enhancement requests, recommendations, report, feedback, proposals, anonymized statistical data or other information concerning the Subscription Software. Notwithstanding anything to contrary herein contained, in no event shall Feedback be deemed Customer Intellectual Property unless such Feedback existed on or before the Effective Date.
Fees: the fees Customer is required to pay Us to use the Subscription Software during the applicable term.
Force Majeure: delays or failures on performance resulting from acts beyond the control of a party. Such acts include acts of God, denial of service attacks, strikes, lockouts, riots, acts of war, terrorism, epidemics, Laws effective after the Effective Date, fire, communication line failures, power failures, earthquakes or other disasters natural or man-made.
Hybrid Services: cloud-based subscription services provided by Genesys and its Affiliates via designated websites (including AppFoundry) and transacted by Genesys as Software as a Service that may be ordered (with a valid service Order) by Customer for use with the Genesys Software licensed by the Customer.
Industry Standard(s): generally accepted practices as reflected in policies and procedures.
Law(s): all domestic and international laws, statutes, rules, regulations, ordinances and other pronouncements having the effect of law.
License Unit Type: The license type (e.g. seat/concurrent) as listed in Schedule B and as set forth on the Order.
Malicious Code: viruses, worms, time bombs, corrupted files, Trojan horses and other harmful or malicious code, files, scripts, agents, programs, or any other similar code that may interrupt, limit, damage the operation of a computer or property.
Ramp Period: A period specified in the Services Order (if applicable) that is intended to allow implementation of the Software.
Seasonal License: Subscription Licenses ordered for a limited number of months for use during the applicable Term, as defined by the Order. Seasonal Licenses may only be ordered for Genesys Subscription Licenses previously ordered and may not be ordered as standalone licenses. Seasonal Licenses must be ordered in advance of use either at the time the initial Order is placed or during the Subscription Term
Services Order or Order: The document by which You order, and Genesys agrees to provide, the Genesys Software pursuant to this Agreement.
Software or Genesys Software: the Genesys’ proprietary computer programs made generally available by Genesys on a subscription, term-based basis and licensed by You from Us pursuant to this Agreement that You may install on equipment owned or operated by You or a third party on Your behalf as shown on a Services Order. Software does not include Third-Party Products or services.
Subscription License: Software that Customer is authorized to use as evidenced by an Order that specifies the Genesys Software product(s) and quantity acquired for the applicable Term.
Support: the support for the Software, as described in Schedule A.
Third-Party Product(s): means any software, Equipment, or services proprietary to an entity other than Genesys or its Affiliates that is sold or licensed separately and that may integrate or interoperate with the Software, including free and open source software.
User: An individual who is licensed to use the Software for one or more roles (e.g. agent, supervisor, administrator).
2.1 Proprietary Rights. All trademarks, service marks, patents, copyrights, trade secrets and other intellectual property rights in any and all Software, Documentation, and any other materials or products provided to You by Us under this Agreement (collectively, “Materials”) are and shall remain the exclusive property of Genesys or its Affiliates, licensors or suppliers, as applicable, whether or not specifically recognized or perfected under applicable local Genesys and its Affiliates, licensors and suppliers reserve all rights not expressly granted in the Agreement and own all rights in all derivative works of the Materials and any copy, translation, modification, adaptation or derivation (including any improvement or development) of the Materials.
2.2 Use of Materials. You will not and will not permit or authorize any third party to: (a) sell, rent, lease, sublicense or otherwise make the Materials available to any third party except as expressly authorized by this Agreement; (b) modify or create any derivative works, functionally equivalent works, or translations of the Materials; (c) copy any feature, design or graphic in or disassemble, reverse engineer or decompile the Materials or remove or modify any proprietary markings or restrictive legends placed on any Materials; (d) access or use the Materials to compete with, or to assist anyone else to compete with, the provider of the Materials; (e) remove or modify any proprietary markings or restrictive legends placed on any Materials; (f) take any action that jeopardizes Our rights or the rights of Our business partners, licensors or suppliers in any Materials; (g) violate any Laws; (h) use the Materials in a manner that is defamatory, harassing, hateful, infringing or otherwise causes damage or injury to any person, group, or property; (i) transmit Malicious Code; (k) perform unauthorized penetration testing or vulnerability scans; (l) damage, disable, overburden or impair the Materials or any other party’s use of the Materials. You are responsible for the use of the Materials by Your Affiliates. You take full responsibility for ensuring that all of Your personnel, third party service providers, and all other third parties that access or use the Software comply with this Agreement, and You will be liable for their acts and omissions. Customer may not encumber, transfer, sell, time share, assign, rent, lease any of its rights granted in this Agreement.
2.3 Similar Materials and Services. Subject to the confidentiality provisions of this Agreement, nothing in this Agreement precludes or limits Us in any way from (i) providing materials that are similar to materials provided or contemplated in this Agreement or (ii) developing deliverables or other materials or services that are similar to or compete with any materials or services developed as a result of this Agreement, regardless of their similarity to any Genesys is free to use any concepts, processes, techniques, improvements or other know- how developed by Us in the course of performance of this Agreement (even if similar to materials, products and services provided hereunder) free from any use restriction or payment obligation. For the avoidance of doubt, but subject to this Agreement, including this Section 2.3, We do not claim any rights to Your Confidential Information.
2.4 Software License. Subject to the terms of this Agreement, including any limitations contained in the applicable Order, Genesys hereby grants to Customer and Customer accepts a non-exclusive, non- transferable, revocable, term license, without right to sublicense, to use the Software in the quantities and License Unit Types described in an Order 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 rights to use the Software and Documentation shall be limited to those expressly granted in this Agreement. 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.
2.5 Evaluation Software. Evaluation Software ordered by Customer is licensed for a term of ninety (90) days from delivery solely for Customer’s nonproduction usage for purposes of internal evaluation and demonstration. Evaluation Software is provided “AS-IS” and without any warranty or indemnification of any kind including any set forth in this section or elsewhere in this Agreement.
2.6 Separate License. All Licenses granted in this section are granted separately from any services Customer may receive from Us, and do not require Customer to purchase such services.
2.7 Additional Licenses. Order issuance and payment of all associated Fees is required prior to the usage of any additional quantities and types of Software beyond the scope previously licensed.
2.8 Back-up Copies. Customer is authorized to make a reasonable number of copies of the Software for archival and cold back-up purposes.
2.9 Documentation and License Unit Type. By downloading, installing, or copying the Software or any update, fix or patch thereto, Customer accepts the then-current Documentation and Licensed Unit Types that govern the use of the Software.
2.10 Feedback. Customer hereby assigns ownership of all intellectual property rights in any report, feedback, or other information concerning the Software provided by Customer to Us.
2.11 Non-Genesys Technology. Except as otherwise required by law or by underlying third party license agreements, any non-Genesys technology provided as part of a Software product is limited to use only with such product.
2.12 Delivery and Acceptance. We will deliver the Software to Customer. Delivery shall occur when the Software has been uploaded onto the FTP site and Customer is provided all necessary passwords for download from such site.
2.13 Disabling Code. Software distributed under this Agreement is subject to measures consistent in all material respects with Industry Standard practices to ensure that it does not contain Malicious The use of license keys and the occurrence of “pop-up” reminders to register the Software on an annual basis will not constitute a breach of the foregoing warranty.
2.14 Third-Party Products and Hybrid Services.
2.14.1 Third-Party Products. Certain Third-Party Products may be available for Customer to Order from Us but such products will not constitute Software, as defined The terms and conditions governing the use of any such Third-Party Products, will be the terms of the shrink-wrap, click- wrap, or other third-party license included with such products. Your use of the Third-Party Products is subject to such supplier terms and conditions, and not the terms and conditions of this Agreement. We are not a party to the terms and conditions governing Third-Party Products, and all claims with respect to such Third-Party Products should be made against the relevant supplier.
2.14.2 Hybrid Sevices. Certain Hybrid Services may be available from Genesys for Customer to order from Us. However, in the event Customer wishes to place such an Order, Customer will be required to agree to additional terms and conditions regarding access to and use of such Hybrid Services.
3.1 Parties and Exceptions. For purposes of this Agreement, the party disclosing Confidential Information is referred to as the “Discloser” and the party receiving Confidential Information is referred to as the “Recipient.” “Confidential Information” means proprietary information of Discloser, or third-party proprietary information disclosed to Discloser, that is provided to Recipient. Recipient’s obligations to protect Discloser’s Confidential Information does not apply to information that: (i) is or becomes, through no act or omission of Recipient, publicly available; (ii) known by Recipient at the time of receipt, as shown by Recipient’s contemporaneous written records; (iii) is subsequently and rightfully provided to Recipient by a third party without restriction on disclosure; or (iv) is independently developed by Recipient without use of or access to Discloser’s Confidential Our, Our business partners, licensors and supplier’s, Confidential Information includes the Materials and technical information relating to the Materials.
3.2 Confidentiality. Recipient will safeguard the confidentiality of Discloser’s Confidential Information including, at a minimum, the precautions taken by Recipient to protect its own Confidential Information but in any event no less than reasonable precautions. Recipient will: (a) not disclose or use Discloser’s Confidential Information for any purpose other than as contemplated by and consistent with the terms of this Agreement, (b) limit access to Discloser’s Confidential Information only to its employees and agents who have a need to know such information and who are bound by written confidentiality obligations at least as protective as the requirements of this Agreement and (c) not sell, transfer, disclose or otherwise make available Discloser’s Confidential Information to any third party without the other party’s prior written consent. If Recipient is required to disclose Discloser’s Confidential Information under the terms of a subpoena, court order, governmental rule or regulation or other judicial requirement, unless legally prohibited from doing so, Recipient will promptly notify Discloser of the existence, terms and circumstances surrounding such a request or requirement so that Discloser may seek an appropriate protective If Discloser seeks a protective order, Recipient will reasonably cooperate in such effort at Discloser’s expense. Subject to Recipient’s compliance with the foregoing notice and cooperation obligations, Recipient will be allowed to make the required disclosure.
3.3 Return of Confidential Information. The Recipient will return any tangible materials containing Confidential Information, and any copies or reproductions thereof, to the Discloser within thirty (30) days after the Discloser’s written request. Recipient agrees to undertake whatever action is reasonably necessary to remedy any breach of Recipient’s confidentiality obligations or any other unauthorized disclosure or use of the Confidential Information by Recipient, its employees, its agents, or The Recipient acknowledges that monetary damages may not be a sufficient remedy for unauthorized disclosure of Confidential Information and that the Discloser Party shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction without the necessity of posting any bond.
3.4 Customer acknowledges and agrees that Genesys (i) does not require Protected Health Information
(“PHI”) or Personally Identifiable Information (“PII”) to perform its obligations under this EUA, and
(ii) is not processing or transmitting PHI or PII under this Agreement. Customer shall comply with all laws concerning the disclosure of PHI and PII. Unless PHI or PII is required for Us to perform its Services, Customer shall not send or disclose PHI or PII to Genesys. If Customer needs to disclose PHI or PII to Us, Customer shall follow Our written instructions when disclosing such PHI or PII to Us.
4.1 Ramp Period. The Ramp Period for Software will begin on the date the Software is delivered and will continue for the period set forth in the applicable During the Ramp Period, Customer will have access to the Software for deployment purposes. The Ramp Period is separate from and not included in the Subscription Term.
4.2 Initial Subscription Term. The Initial Subscription Term will begin at the end of the Ramp Period and will continue for the term set forth in the applicable Thereafter, any renewal terms shall be for an additional one-year period unless otherwise agreed upon by the parties. (each a “Renewal Term”).
4.3 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 Us of its intent not to renew or issue a renewal purchase order or Order with payment due on or before the Expiration Date. In the event Customer submits a renewal Order that has a lower annual order value than the prior Term, Genesys reserves the right to reprice the Software for which the Order is being Upon renewal of an Order Customer will pay the applicable Fee(s) unless it has been terminated as set forth herein. The Initial Subscription Term plus any applicable Renewal Terms shall together make up the “Subscription Term” though each individually may be referred to as “Term”. Upon execution by both parties, each Order shall be a non-cancelable, non-refundable order by Customer.
4.4 Price Increases. Genesys may increase the annual fees on the anniversary of the start of the Initial Subscription Term or applicable Renewal Term by notifying Customer at least ninety (90) days prior to such anniversary In the event of a multiyear Order, any annual price adjustment will be as set forth in the Order.
4.5 Seasonal Licenses. Seasonal Licenses may only be ordered for Software previously ordered and may not be ordered as standalone Seasonal Licenses must be ordered in advance of use either at the time the initial Order is placed or during the Subscription Term.
4.6 Invoicing and Payment. For the first year of the Initial Subscription Term, the Customer will be invoiced annually in advance upon the Order Effective Date for all regular annual Fees and any Seasonal Licenses at the rates set forth in in the Order. Thereafter, for any Renewal Terms, the regular annual Fees, including any fee increases as set forth in Section 4.4, any Seasonal Licenses, and any additional quantities licensed in accordance with the Order, will be due and payable annually in advance. Non- recurring Fees and other Fees will be invoiced monthly in arrears. Additional Subscription Licenses ordered during a current Term will be invoiced in advance for the remainder of the Term in which they are purchased, as set forth in the applicable Order.
4.7 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.
4.8 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 at the Customer’s usage levels.
5.1 Support. Support for Genesys Software shall be provided as set forth in Schedule A and in the Support Guide located at https://docs.genesys.com/Documentation/ST/latest/Premise/Welcome.
5.2 Professional Services. We will provide the Professional Services identified in each Statement of Work or Services Order referencing this Agreement and executed by the parties. If You desire to change an executed Statement of Work and such change is reasonably acceptable to Us, the parties will execute a revised Statement of Work or change order. You understand that revisions to a Statement of Work may require payment of additional fees and may require changes to the work schedule as reflected in the revised Statement of Work.
5.3 Cooperation. You acknowledge that the successful and timely performance of the Professional Services requires Your good faith cooperation. Accordingly, You will fully cooperate with us including without limitation: (i) providing us with relevant access, information and Your materials as reasonably requested (and You grant us a royalty-free, non-exclusive license to use such information and materials to perform the Professional Services); and (ii) making Your personnel available to Us as reasonably requested. You acknowledge that the Professional Services may be delayed or not completed if You do cooperate with Us or if Our performance is otherwise delayed or prevented by You or Your contractors or agents.
5.4 Compensation. Each Statement of Work or Services Order shall contain the charges for the Professional Services. You will reimburse Us for reasonable travel and living expenses.
6.1 Software Warranty. Beginning on the effective date of the Service Order, We warrant to You that, for 90 days from delivery, the Software will materially conform with the applicable Documentation. If an actual noncompliance with this warranty is reported by You to Us, then We will at Our option either (i) repair or replace the Software such that it substantially conforms to the Documentation; or (ii) terminate the license. In the event of termination, We will refund pre-paid, unused fees for such non-compliant Software. Any refund provided hereunder shall be deemed a revocation of the license granted for such refunded Software. Customer acknowledges that the Software functions solely as a conduit for transmission and storage of Genesys is not responsible for and will have no liability for the content, accuracy, completeness, timeliness, security, integrity, utility, or applicability of the data stored or transmitted using the Software.
6.2 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6 (WARRANTIES) ALL MATERIALS OF ANY KIND, INCLUDING ANY AND ALL SOFTWARE, THIRD PARTY PRODUCTS, DELIVERABLES, CUSTOMIZATIONS, HARDWARE, AND SUPPORT SERVICES, ARE PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE (AND OUR BUSINESS PARTNERS, LICENSORS AND SERVICE PROVIDERS) DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS OR OTHERWISE (INCLUDING ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY, QUIET ENJOYMENT, TIMELINESS, COMPLETENESS, OR ACCURACY). WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT USE OF ANY MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFECTS IN ANY SOFTWARE OR OTHER MATERIALS OF ANY KIND WILL BE CORRECTED. YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE MATERIALS NECESSARY TO ACHIEVE YOUR INTENDED RESULTS. TO THE EXTENT THAT WE CANNOT DISCLAIM A WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
6.3 WE SHALL HAVE NO WARRANTY OBLIGATIONS TO THE EXTENT A CLAIM AROSE FROM THE FURTHER, THE REMEDIES SET FORTH IN THIS SECTION SIX (WARRANTIES) ARE YOUR SOLE AND EXCLUSIVE REMEDY(IES) FOR ANY BREACH OF THE FOREGOING WARRANTIES AND TO THE EXTENT THAT ANY OTHER AGREEMENT BETWEEN US IS DETERMINED BY A COURT TO PROVIDE FOR A DIFFERENT REMEDY, THIS AGREEMENT SHALL CONTROL.
7.1 CONSEQUENTIAL DAMAGES EXCLUSION. IN NO EVENT WILL WE (AND OUR BUSINESS PARTNERS, LICENSORS OR SERVICE PROVIDERS) BE LIABLE FOR ANY OF THE FOLLOWING DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT:
(i)INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE, (ii) COVER DAMAGES OR OTHER SIMILAR DAMAGES (INCLUDING THE COST OF PROCURING AN ALTERNATE VENDOR OR SERVICE); OR (iii) ANY LOSS OF PROFITS, BUINESS, GOODWILL (INCLUDING PECUNIARY LOSSES ARISING FROM LOSS OF GOODWILL), REVENUE, OR LOSSES RELATED TO STOPPAGE IN CUSTOMER’S OPERATION. THE DAMAGES DESCRIBED IN THIS SECTION ARE EXCLUDED, EVEN IF A PARTY IS EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
7.2 LIMITATION OF LIABILITY. OUR (AND OUR BUSINESS PARTNERS’, LICENSORS’ AND SUPPLIERS’) TOTAL AGGREGATE LIABILITY FOR ANY LOSS, COST, CLAIM OR DAMAGES IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE SERVICES ORDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE LOSS, COST, CLAIM OR DAMAGE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS LIMITATION ON LIABILITY FORMS A FUNDAMENTAL BASIS OF THE BARGAIN HEREUNDER, IN THE ABSENCE OF WHICH, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD HAVE BEEN DIFFERENT. 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).
7.3 ANYTHING TO THE CONTRARY IN THIS SECTION 7 NOTWITHSTANDING, ANY EVALUATION SOFTWARE IS PROVIDED FREE OF CHARGE AND WE (AND OUR BUSINESS PARTNERS’, LICENSORS’ AND SUPPLIERS’) SHALL NOT BE LIABLE UNDER ANY THEORY FOR ANY DAMAGES SUFFERED BY CUSTOMER RELATED TO THE EVALUATION SOFTWARE. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL WE BE LIABLE FOR ANY INCIDENTAL, SPECIAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE EVALUATION SOFTWARE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.
7.4 The parties must use their reasonable efforts to mitigate any loss, damages or expense arising out of, or in connection with, the Agreement.
7.5 Genesys Indemnification. Subject always to Your compliance with Section 7.7 (Indemnification Procedures), We will pay to defend You at Our expense and indemnify You for any amounts awarded against You in a final judgment or settlement approved by Us, with respect to any claims by a third party that the unaltered Software, as originally delivered to You, infringe or misappropriate any valid and enforceable patents, copyright registrations, federal trade dress registrations and federal trademark trade mark registrations of such third party which are enforceable in signatory countries to the Berne Convention. We may at any time and at Our option and expense: (i) obtain for You a license to continue to use the Software that may infringe a third party’s rights; (ii) modify the Software so as to avoid infringement while preserving substantially equivalent functionality; or (iii) terminate the Agreement and the licenses granted hereunder and refund to You the prepaid, unused fees covering the remainder of the term of the applicable Services Order.
7.6 Customer Indemnification.You will defend Us and Our Affiliates at Your expense, indemnify Us and Our Affiliates against any judgments finally awarded by a court, and pay any settlements approved by You with respect to any claims: (a) that Customer Data and/or Your method or process of doing or conducting business infringes any intellectual property rights of a third party; (b) arising from Your non-compliance with the Agreement, including Section 2 (Scope of Use); or (c) any circumstances arising under the Exclusions.
7.7 Indemnification Procedures. A party entitled to indemnification (“Indemnified Party”) will promptly notify the other party (“Indemnifying Party”) of any claim and provide reasonable assistance to the Indemnifying Party with respect to handling the claim, at the Indemnifying Party’s expense. Failure to provide timely notice or reasonable assistance will relieve the Indemnifying Party of its indemnification obligations to the extent that the Indemnifying Party has been materially prejudiced thereby. The Indemnifying Party will have the sole right to defend and settle any claim (except that the Indemnifying Party may not agree to any settlement that does not unconditionally release the Indemnified Party, without the Indemnified Party’s prior written consent). The Indemnified Party will be entitled to participate in the defense of a claim and to employ legal representation at its own expense to assist in the handling of a claim.
7.8 WE SHALL HAVE NO DEFENSE, WARRANTY OR INDEMNIFICATION OBLIGATIONS TO THE EXTENT ANY CLAIM(s) AROSE FROM AN EXCLUSION(S). FURTHER, SECTION 7.5 STATES THE ENTIRE LIABILITY AND OBLIGATION OF GENESYS, AND YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INFRINGEMENT OR CLAIMS OF INFRINGEMENT BY THE SERVICES, OR ANY PART THEREOF, OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT.
8.1 Term. The term of this Agreement shall begin on the Effective Date and shall continue for the duration of the current Order for which this Agreement is being entered into and shall apply to any add-on Orders that co- terminate with that current Order. Upon renewal, Genesys reserves the right to require a new Agreement.
8.2 Termination for Cause. Either party may terminate the Agreement upon notice and thirty (30) days’ opportunity to cure (if susceptible to cure) if the other party breaches a material term of the Agreement, makes an assignment for the benefit of creditors, admits in writing its inability to pay debts as they become due, is the subject of a bankruptcy order, or becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or if any of its assets are the subject of any form of seizure, or goes into liquidation, either voluntary (otherwise than for reconstruction or amalgamation) or compulsory or if a receiver, examiner, or administrator is appointed over its assets (or the equivalent of any such event in the jurisdiction of such other party. Failure to pay and violation of proprietary rights obligations are material If, during the cure period referenced in this Section 8.2, We document an effort to promptly cure the breach, then, notwithstanding anything to the contrary, You will not terminate the Agreement while such good faith efforts are continuing. Our efforts to cure the breach may not exceed 120 days from Your notice.
8.3 Effect of Termination for Cause. Immediately upon termination, the licenses granted hereunder and rights to use shall terminate, and You must stop using the Within five (5) days after termination You will de-install the Software and all copies and (a) return the Materials and all copies in Your possession or (b) destroy the Materials and all copies and confirm in writing that they have been destroyed.
8.4 Termination for Convenience and Effects of Termination for Convenience. We may terminate this Agreement for convenience by providing thirty (30) days’ The sole effect of such termination is that You will no longer be able to place Orders or renew existing Orders under this Agreement. For clarity, Termination for Convenience will not affect any current, active Orders. Upon expiration of any active Orders for Software, You must stop using the Software and any applicable Materials. Within five (5) days after termination You will de-install the Software and all copies and (a) return the Materials and all copies or (b) destroy the Materials and all copies and confirm in writing that they have been destroyed.
8.5 Survival of Terms. All terms of this Agreement which, by their nature, are intended to survive termination of this Agreement will survive termination, including all use restrictions, confidentiality obligations, ownership terms, indemnification obligations, disclaimers, Exclusions, limitations of liability, effect of terminations, and general terms.
9.1 Excess Usage. Customer may not exceed the licensed quantity of Software, unless otherwise agreed in advance by the parties.
9.2 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 Customer will cooperate fully with Genesys and/or its designee in any official or unofficial audit conducted hereunder. Such audit may include the placement of an approved license verification functionality within Customer’s environment at any or all times during the period of usage. If Customer is not in compliance with the provisions of this Agreement, 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 to verify compliance with the provisions of the Agreement during the Term of the Agreement and for two (2) years thereafter.
10.1 Compliance with Laws. Each party will comply with laws, statues, rules, regulations, ordinances, and
other pronouncements having the effect of law (collectively “Laws”) as applicable to a party and, in the case of Customer, applicable to the Materials and their use. In no event will We be responsible for providing, implementing, configuring or coding the Materials in a manner that complies with any Laws that apply to Your business or industry, including without limitation, the Communications Act of 2003 as implemented by OFCOM, the UK Bribery Act, the US Foreign Corrupt Practices Act, the FTC or FCC regulations or the US Telephone Consumer Protection Act of 1991 (collectively “Customer Specific Laws”). You will comply with Customer Specific Laws, and in no event will We or Our business partners, licensors or suppliers be liable for any claim or action arising from or related to Your failure to comply with any Customer Specific Laws, it being understood that You are solely liable for any such failure(s) and resulting claims or actions.
10.2 Publicity. Subject to prior written approval of content, You grant Us the right to use Your name in any press release, public disclosures, case studies, advertising or materials (collectively “Marketing Materials”) distributed to prospective or existing customers of Genesys. Further, Customer will provide reasonable assistance to Genesys in Genesys’ efforts to prepare and distribute any such Marketing Materials.
10.3 Assignment. Customer may not assign the rights granted hereunder or this Agreement, in whole or in part and whether by operation of contract, law, change of control, merger or otherwise, without Genesys’ prior express written Subject to the preceding sentence, the rights and liabilities of the parties hereto shall bind and inure to the benefit of their respective successors and assigns.
10.4 Cumulative Remedies, Force Majeure and Injunctive Relief. All remedies available to Us will be cumulative and the specification of a remedy will not preclude Us from pursuing other remedies available at law or in equity. Except for payment obligations, neither party will be responsible for acts of Force Majeure. Nothing in this Agreement will prevent Us from seeking immediate injunctive relief against You in the courts having jurisdiction over You.
10.5 Governing Law. This Agreement shall be governed by the respective governing law, and any dispute related to this Agreement shall be subject to the exclusive jurisdiction of the respective courts, listed at https://library.genesys.com/m/123731202d01669c/original/Governing-contract-references-in-service-order_EN.pdf, based on Customer’s domicile, without reference to conflicts of law provisions. The parties agree to submit to the personal and exclusive jurisdiction and venue of such courts. The UN Convention for the International Sale of Goods shall not apply to this Agreement. The prevailing party to any dispute shall be entitled to recover its cost of enforcing a claim, including but not limited to attorneys’ fees.
10.6 Independent Contractors. The parties are acting as independent contractors. Nothing in the Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.
10.7 Notices. All notices under this Agreement shall be in writing and deemed to have been given when (i) personally delivered, (ii) sent by registered mail, postage prepaid (which shall be deemed to have been received on the third business day following the date on which it is mailed), or (iii) sent overnight by a commercial overnight courier that provides a receipt (which shall be deemed to be received on the next business day after mailing. All notices provided by Genesys will be sent to the Customer’s current business contract, with a cc to the Legal Department. All notices provided by Customer will be sent to the applicable Genesys entity as set forth at https://www.genesys.com/company/legal-docs/governing-law-jurisdiction-and-notices.
10.8 Waiver.No provision of the Agreement may be waived unless such waiver is in writing and signed by the partyagainstwhich thewaiver istobe Eitherparty’sfailuretoact withrespect to abreach by the other Party of this Agreement does not constitute a waiver of its rights with respect to subsequent or similar breaches.
10.9 Severance. If any provision of this Agreement is deemed invalid, illegal, or unenforceable, it will be considered stricken from this Agreement, and the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
10.10 Complete Agreement; Amendment. The Agreement constitutes the complete Agreement between the parties and supersedes all prior Agreements, representations, written or oral, concerning the subject matter of the The Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party. The terms of the Agreement shall supersede the terms in any purchase order submitted by You.
10.11 Compliance. You represent and warrant that (a) neither You or any Affiliate are on any government- issued list of restricted persons or entities including the Commerce Department Entity List, Denied Persons List or Unverified List, the Treasury Department Specially Designated Nationals and Blocked Persons List, and the State Department Debarred Parties List; and (b) You will not export or re-export, directly or indirectly, any services, products, or Materials or Confidential or Proprietary Information of any kind provided by Company to any countries outside the United States except as permitted under the U.S. Commerce Department’s Export Administration
10.12 Execution; Digitized Copies. The parties agree that this Agreement may be executed by any means of signature, including electronic commerce or transmission, including facsimile, email or acknowledgement through a webpage. The Agreement may be executed in counterparts, each of which is deemed an original but which together constitute one Signed digitized copies of the Agreement and other associated documents including attachments and amendments shall legally bind the parties to the same extent as original documents.
10.13 Subcontracting. We may subcontract certain portions of the Services under this Agreement to third parties, provided that we shall be responsible for the performance of such subcontractors.
10.14 Anti-Corruption and Bribery Act Compliance. In connection with any actions or activities associated with this Agreement or in connection with the relationship between the Parties, neither Party will engage in any unlawful trade practices or any other practices that are in violation of the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act of 2010, or any other law that prohibits bribery or similar activity. Each Party will ensure that neither it nor its Affiliates, subcontractors and agents: either directly or indirectly, seek, receive, accept, give, offer, agree or promise to give any money, facilitation payment, or other thing of value from or to anyone (including but not limited to government or corporate officials or agents) as an improper inducement or reward for or otherwise on account of favorable action or forbearance from action or the exercise of influence; or fail to establish appropriate safeguards to protect against such prohibited actions. Each Party will, upon request from the other Party, provide evidence of the steps being taken to avoid prohibited actions, including the establishment of policies, practices, and/or business controls with respect to these To the extent permitted by the relevant authority, each Party will promptly inform the other Party of any official investigation with regard to alleged breaches of the above laws that are related in any way to this Agreement.
Schedule A
Maintenance and Support Terms
The provisions of this Schedule shall apply to all Orders issued by You for Maintenance and Support.
1. Definitions
1.1 “All Relevant Information” means the information deemed necessary by Genesys to enable the successful identification and resolution of a service request.
1.2 “Maintenance Fee” means the annual fee to be paid to Genesys to entitle You to access and use Maintenance and Support in accordance with the provisions of this Agreement.
1.3 “Maintenance and Support” means the maintenance and support service purchased by You that provides (i) Maintenance, Minor and Major Releases, if any, and appropriate Documentation to the Software; (ii) telephone or email assistance with respect to the Software (iii) Your access to Genesys support personnel twenty-four (24) hours per day, seven (7) days per week, for “Critical” issues as defined herein. Telephone assistance shall comprise: (A) clarification of functions and features of the Software, (B) clarification of Documentation pertaining to the Software and (C) error verification, analysis and resolution.
1.4 “Release” means a version of any Software containing functional enhancements, modifications, extensions, error corrections or bug fixes. Releases are not provided as part of the Software unless You have timely paid the applicable Maintenance Fees.
1.5 “Major Release” means a Release which comprises a substantial change to the Software content and fixes to previously determined defects, and may include architectural changes.
1.6 “Minor Release” means a Release which comprises new features, functions, and fixes to previously determined defects.
1.7 “Maintenance Release” means a Release which comprises fixes to previously determined defects, but does not include new features or functions.
2. Maintenance and Support
2.1 Technical Support Procedures. Genesys shall use commercially reasonable efforts to correct material errors in the Software in accordance with the technical support and escalation procedures set forth in the Support Guide for On-Premise Licenses. In the event that remote resolution is not possible, Genesys may, upon mutual agreement, attend Your site to attempt such resolution. In such case, additional fees and travel expenses may be applicable.
2.2 Covered Versions and Exclusions. Genesys shall provide Maintenance and Support for the current Major Release of the Software and the most current version of the immediately prior Major Release. Genesys shall not provide Maintenance and Support relating to flaws in operation arising out of: (i) changes to the operating system or environment which adversely affects the Software; (ii) any alterations, Customizations of or additions to the Software performed by parties other than Genesys or at the direction of Genesys; (iii) use of the Software not in accordance with the Agreement or Documentation; (iv) accident, negligence or misuse of the Software; (v) interconnection of the Software with other software not supported by Genesys; (vi) modification of the database structure designed to be used by the Software or (vii) introduction or extraction of data into, or from any Genesys Software database, by any means other than the use of Genesys application programming interfaces. Genesys shall have no obligation to provide Maintenance and Support unless You are current on all fees due under this Agreement.
2.3 Designated Contacts. You shall appoint at least two (2) employees to initiate and manage Maintenance and Support inquiries with Genesys (“Designated Contacts”). Designated Contacts shall conform to the requirements set out in the Support Guide for On-Premise Licenses and achieve formal Genesys training applicable to the Software. Designated Contacts shall have competent knowledge of the technical infrastructure where the Software is installed. You shall maintain at least two (2) Designated Contacts for as long as it receives Maintenance and Support. Genesys shall be entitled to charge reasonable additional fees for Services provided beyond the scope of Genesys’ support obligations set forth herein.
2.4 Usage Without Entitlement. You may not use Genesys Maintenance and Support for Genesys Software that is not covered by a valid Entitlement. If it is determined that You have made use of Maintenance and Support without authorization of the Entitlement, You will be invoiced for the usage at the then current Genesys prices for Maintenance and Support.
2.5 Activation Files. If Maintenance and Support terminates or expires, Genesys may require payment for a new Activation File.
2.6 Developer Materials. Maintenance and Support for Developer Materials does not include any Maintenance and Support for Developed Works or any general development support.
3. Responsibilities for Maintenance and Support
3.1 You shall use commercially reasonable efforts to perform the following tasks with regard to Maintenance and Support:
3.2 Genesys shall use commercially reasonable efforts to perform the following tasks with regard to Maintenance and Support:
Schedule B
Software License Elements and Definitions
The following list includes the standard software licensing elements and definitions used by Genesys. These definitions are subject to periodic changes in response to updated offerings.
LICENSE ELEMENTS
The Genesys software license definition and entitlement consists of a base license, plus three types of modifiers. The license definition is complete only if the base license and all mandatory modifiers are specified.
Base License: The basic user type for this software license type.
Term: Modifier specifying the time period for which the license is granted.
Pricing Method: Modifier specifying how the license applies across the population of users.
Environment: Modifier specifying whether the licenses will be used in the customer’s production or non-production environment types.
Example: A complete license definition for a typical agent seat license would be as follows:
| Base license | Term | Pricing Method | Environment |
| Seat | Subscription | Users | Production |
DEFINITIONS
| BASE LICENSE | |
| User | A software user is a person licensed for one or more roles (ex. agent, supervisor, administrator). |
| Session (Port) | A semi-permanent Genesys information interchange, between two or more communicating devices, or between a computer and user. A session is set up or established at a certain point in time, and torn down at a later point in time. |
| System | A unique instance of the core Genesys configuration environment, regardless of other Genesys applications used. A system can be single-site, multi-site, and include High Availability (HA) and Disaster Recovery (DR) configurations. |
| Site | Used to license a single physical location, typically where users are co-located. |
| Application | Computer software designed to perform specific business tasks for the User or end customer (as opposed to system core or middleware which serve the application, but not the user). |
| Instance | A single occurrence of a running software process. |
| Lab Instance | One lab system unit is limited to a single non-production instance and may not be replicated without the purchase of an additional lab system licenses. |
| PRICING METHOD | |
| Concurrent | Actual simultaneous use of the product by a User, application or system component. Licenses the peak number of Users logged in or able to access the License Software functionality at any given moment, without regard to location or User role. |
| Named | A Named User is a specific person licensed for exclusive use of the Software. |
| Time-based | A cumulative time period of measure (ex. minutes, hours, months) of actual use (ex. user login time, session length) of a product. |
| ENVIRONMENT | |
| Production | In use for revenue-generating business operations. |
| High Availability (HA) | A production system on hot standby or in active load-balancing configuration with the ability to act as backup in case of primary system failure. |
| Lab | In use for Testing and staging products and solutions prior to production implementation including Hammer (load) testing. |
