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Direct Subscription Addendum with PureSuccess

Direct Subscription Addendum with PureSuccess

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. PureSuccess Services.

3.1.  PureSuccess Services are an agreed upon offer of Services that Genesys will provide in conjunction with the Subscription offering provided herein. PureSuccess Services shall be governed by the terms of the Agreement and of Exhibit 1 attached hereto.

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. Remix. During the Initial Subscription Term, the parties may agree to change the mix of products licensed once per year on the anniversary of the start of the Initial Subscription Term. Thereafter, the parties may change the mix of products licensed once per year upon the end of the Renewal Term. Customer must notify Genesys of its desire to remix at least sixty (60) days prior to the anniversary date or end of the Renewal Term. Subject to Genesys’ agreement, the parties will sign a remix addendum setting forth the terms of the remix. Any such remix must follow all of the following rules:

4.4.1. Customer shall not decrease the total fees associated with licenses issued to it by Genesys during the applicable Subscription Term. As such, any remix in the total number of licenses must result in the same or an increased minimum license fee commitment.

4.4.2. Where Customer already subscribes to a product and wishes to add more quantity of such product to its mix, the remix ratio is established based on the net price of the product it is removing from its mix of products (the “Original Product”)  and the net price of the product it wishes to add (the “Target Remix Product”).

4.4.3. Where Customer does not already subscribe to the Target Remix Product, the remix ratio is based on the net price of the Original Product and the list price of the Target Remix Product.

4.4.4. Customers cannot remix within its base package. Customer must at all times subscribe to the entire base package in the quantities set forth in the base package.

4.4.5. Customers cannot remix from a Genesys product to a third party product

4.4.6. Customer cannot remix to products that are not available for subscription licensing.

4.5. PureSuccess Offer Changes. During the Initial Subscription Term, the parties may agree to change the Customer’s PureSuccess offer once per year on the anniversary of the start of the Initial Subscription Term. Thereafter, the parties may change the PureSuccess offer once per year upon the end of the Renewal Term. Customer must notify Genesys of its desire to change its PureSuccess offer at least ninety (90) days prior to the anniversary date or end of the Renewal 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 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.

4.7. 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 or Subscription Services at the Customer’s usage levels, including usage levels resulting from any Customer bursting.

4.9. 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. Additional Usage:

5.1. If Customer usage exceeds the licensed quantity set forth above in any given month the following terms apply:

5.1.1. Bursting. Except as otherwise provided in an Order, Customer’s usage may exceed its licensed quantity by up to twenty-five percent (25%) over the then current monthly quantity. (the “Cap”) In the event of usage within the Cap, Customer will pay to Genesys the monthly fee for the additional quantity of each product used during the month plus a thirty percent (30%) fee which will be calculated by multiplying the monthly fee for each additional quantity for the month during which the excess/overage event occurred by 30%. (together the “BurstingUsage Fee”).  The Bursting Usage Fee will be invoiced monthly in arrears.

5.1.2. If Customer exceeds the Cap, in addition to the fees set forth in Subsection (i) above, Customer must purchase a subscription license for any additional quantity of licenses over the Cap for the remainder of the Subscription Term. The initial month of such purchase shall be invoiced in arrears and thereafter the additional fees and quantities will be added to the monthly fees and quantities set forth above.

6. Supplemental Subscription Services, Tokens, and Service Element Consumption:

6.1.  Supplemental Subscription Service Catalog.  During an active Subscription Term, Customer may purchase supplemental service elements, which are defined in the Genesys PureSuccess Service Catalog  (“Service Catalog”) referenceable in your entitlement dashboard and which may include specifically defined professional services, support services, or training and education services. (“Service Elements”)  Service Elements  may be purchased  either by issuance of a purchase order and invoicing under the terms of the Agreement or by redemption of Tokens as set forth in the next section. The fees for any such Supplemental Subscription Services shall be invoiced in advance and payment shall be due within thirty (30) days of the date of the invoice.

Tokens.  A “Token” is a unit that can be exchanged for Service Elements. Customer may acquire Tokens in one of two ways:

6.1.1.  As included in a PureSuccess offering.  In such case the number of Tokens provided will be defined in the Customer’s Order.

6.1.2. By purchasing additional Tokens separately during a Subscription Term.

6.2. Upon receipt of Customer’s order and remittance for any Tokens, Genesys will issue the amount of Tokens purchased to Customer.  Amounts used to purchase tokens are non-refundable. Further, a token will have a defined amount and expiration date, which shall not be extended beyond, as applicable: (i) the anniversary of the start of the Initial Subscription Term;  or, (ii) after expiration of the Initial Subscription Term, at the end of the applicable Renewal Term. When Customer wants to purchase a Service Element using Tokens, Customer will present the Tokens to Genesys in the amount set forth in the Service Catalog  for the desired Service Element

6.3. PureSuccess Service Elements and Token consumption. During the Initial Subscription Term, all Service Elements and Tokens provided as part of the PureSuccess Offer or purchased separately must be fully consumed prior to the first anniversary of the start of the Initial Subscription Term. Thereafter, all Service Elements and Tokens provided as part of the PureSuccess Offer or purchased separately must be fully consumed prior to the end of the Initial Subscription Term or Renewal Term

7. Usage Data and Audit

7.1. 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:

7.1.1. To determine Customer usage for billing and compliance purposes

7.1.2. 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.

7.2. 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

7.3. 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

8. LIMITATION OF LIABILITY.

8.1.  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:

8.2.  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).

9. General.

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

9.2. 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.

 

Exhibit 1

PureSuccess Services.

1. Services. Genesys will provide any Services delivered as part of the PureSuccess Services, including any Deliverables, as described in the PureSuccess Service Catalog executed by the parties and in accordance with the terms of the Agreement, including this exhibit.

2. Maintenance and Support. Genesys will provide any Maintenance and Support Services as set forth in the Agreement and the applicable support guidelines  as outlined on www.genesys.com/customer-care.

3. Training. Training will be provided in accordance with the “Terms and Conditions – Genesys University” and the Agreement.

4. Staffing. Genesys will make all staffing decisions in its performance of the PureSuccess Services including use of subcontractors. Genesys will be responsible for the performance of subcontractors hereunder.

5. Resources. Customer shall make available in a timely manner at no charge to Genesys all data, facilities, data, equipment or other resources reasonably required by Genesys to perform the PureSuccess Services. This may include providing the necessary server/networking infrastructure to implement and utilize the system, cables, cabling, and connections to “house” wiring, and guaranteeing the house wiring has been tested and is fully certified to function. Customer is responsible for all hardware, software, and services provided by other consultants or third party vendors that may also be involved with the service. Customer warrants that Customer has obtained valid licenses or other legal rights to use, and to permit Genesys to use on Customer’s behalf, all equipment, software, documentation and other materials not provided by Genesys that are used in the performance of the PureSuccess Services

6. Customer Data. Prior to providing Genesys access to Customer computer system or network, Customer is responsible for performing a full backup including all Customer Data. Genesys will have no responsibility for Customer failure to perform a full backup or for the results of the backup including the reliability of Customer backup software, equipment or media. It is solely Customer responsibility to determine and implement all necessary steps to backup Customer Data and Genesys will have no responsibility for loss of or damage to Customer Data.

7. Access. Genesys may require after-hours and/or weekend access to any services sites.

8. Location of Services. All PureSuccess Services will be delivered remotely unless otherwise stated in this Agreement, an applicable Order, or other document between the parties. Where PureSuccess Services are provided at a Customer site, Customer will provide a safe and secure work environment.

9. Communication. Genesys will communicate with Customer’s appointed Point of Contact for Customer for the applicable service.  He/she will be responsible for all communications among all Customer parties (staff, vendors, consultants) and for the escalation and resolution of any issues for Customer.

10. Cooperation. Customer agrees that the successful and timely performance of the PureSuccess Services requires Customer good faith cooperation and that the participation and commitment of Customer during the Service delivery will be a key to its success. This participation and involvement will include assigned tasks to Customer team members as outlined in the Services documentation. Accordingly, Customer agrees to fully cooperate with Genesys including without limitation: (i) providing relevant information and Customer materials as reasonably requested; (ii) granting Genesys a royalty-free, non-exclusive license to use such information and materials to perform the PureSuccess Services; (iii) making Customer personnel available to Genesys as reasonably requested; and (iv) permitting Genesys to access Customer network via a virtual private network (VPN) as reasonably requested. Customer acknowledges that the PureSuccess Services may be delayed or not completed if Customer does not cooperate with Genesys or if Genesys’ performance is otherwise delayed or prevented by Customer or Customer contractors or agents. If completing a particular milestone requires performance of tasks by Customer or a third party outside Genesys control, the completion dates for such milestones will be equitably adjusted

11. Minor Modifications. Genesys reserves the right to amend the tools, information, documentation and any other materials or services without notice to the Customer where, at the sole discretion of Genesys where such amendment does not constitute a fundamental change to the materials.

12. Language. All PureSuccess Services, materials and communications are assumed to be delivered in English.

13.Travel and Expenses. Customer shall reimburse all reasonable travel and other expenses incurred by Genesys in performance of the PureSuccess Services

14. Intellectual Property. The copyright and all other intellectual property rights relating to the tools, information, documentation and any other materials or services (collectively, “Genesys Proprietary Information”) provided to Customer hereunder are solely owned by and hereby reserved to Genesys. Under no circumstances may the whole, or any part of the Genesys Proprietary Information be produced, copied or distributed in any form or by any means or translated into another language without the prior written consent of Genesys. Any breach or threat of breach of this provision by the Customer shall entitle Genesys to injunctive and other appropriate equitable relief (without the necessity of proving actual damages); in addition to whatever remedies it may have at law. Genesys Proprietary Information is made available to the Customer on an “as is” basis. As between the Customer and Genesys, Genesys Proprietary Information will be deemed Confidential Information of Genesys as set forth in the Agreement.

15. Ownership of Work Product. All specifications, designs, processes, techniques, concepts, code, discoveries and inventions made or developed in connection with the PureSuccess Services, including but not limited to Deliverables, Creations and Customizations, shall be the sole and exclusive property of Genesys.

16. License to Deliverables. Subject to the terms of this Agreement, upon payment in full of all amounts due, Genesys grants to Customer a non-exclusive, non-sub-licensable, license to use Deliverables and Creations created hereunder solely in connection with the Software.

17. Warranty. Genesys warrants that it shall provide PureSuccess Services in a professional and workmanlike manner.

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