1.1. Customer determines the manner and means of transmitting outbound communications, including Proactive Customer Care and Mobile Marketing, using the Genesys Cloud Services platform, including voice, email, text, and push notifications.
1.2. Customer will develop Campaigns using Genesys tools. If Customer retains Genesys to draft, Genesys will develop draft campaign communication. Customer will supervise Genesys’ work, review and revise draft as appropriate for Customer’s needs, and take responsibility for the final message draft.
1.3. Customer is responsible for originating (or causing the origination, via Recipient opt-in requests, of) its desired Messages for Initiation by the Genesys Cloud Services platform. For voice and text communications, Customer shall ensure that: (i) Recipient Numbers are the correct Recipient Numbers for the intended Recipient; (ii) Recipient Numbers are obtained and used at all times in compliance with all applicable Laws (including but not limited to the TCPA and the FDCPA); (iii) Recipient Numbers do not include emergency lines, including those of any hospital, medical center, health care facility, poison control center, fire protection agency, or law enforcement agency; (iv) Recipient Numbers do not include any number assigned to a paging service, cellular telephone service, or other wireless service, unless appropriate consents to transmit to such numbers have been obtained from the intended Recipient; and (v) Recipient Numbers do not include any number to which automated dialing or prerecorded message calls are prohibited under applicable Laws.
1.4. Customer shall provide and be solely responsible in all respects, for: (i) establishing and providing the time(s), date(s) and delivery schedule(s) in respect of Messages, (ii) ensuring that (A) no Telemarketing Message is transmitted before 8 a.m. or after 9 p.m. local time at the Recipient’s location, and (B) no Messages, including Telemarketing Messages, are transmitted outside of hours allowable under applicable Laws.
1.5. Genesys will use commercially reasonable efforts to transmit Customer’s Messages as directed by Customer. Genesys cannot guarantee that Messages, once transmitted by the Genesys Cloud Service platform, will be received, delivered or opened by Recipients.
1.6. Genesys may provide Messages and other data to Providers which may reformat the Message to conform and adapt to Provider requirements and device requirements.
1.7. Genesys Cloud Services are designed to facilitate compliance with certain regulatory obligations related to the TCPA, CAN-SPAM, and FDCPA through the use of filters such as checking Recipient Numbers against state and federal Do-Not-Call lists (each such feature, if enabled by Customer for the applicable Message, a “Compliance Instruction”). Genesys makes no representation or warranty that the compliance-related features of the Genesys Cloud Services are sufficient to meet the obligations related to TCPA, CAN-SPAN, and the FDCPA or other Laws. Notwithstanding the foregoing features of the Genesys Cloud Services, Customer is responsible for determining the Laws applicable to Customer’s use of the Genesys Cloud Services and for determining whether its use of the Genesys Cloud Services remains compliant with such Laws. Customer is also responsible for determining the applicable Compliance Instruction.
In addition to the requirements stated above under Section 1:
2.1. Customer shall ensure that each telephone Message clearly states the identity of the Customer at the beginning of the Message and the Customer’s telephone number during the Message.
2.2. For Telemarketing Messages, Customer will ensure that Recipient Numbers do not include: (A) any number for a intended Recipient who has not given express written consent to receive Telemarketing Messages from Customer in compliance with all applicable Laws; (B) any number for a Recipient who has previously requested not to receive calls from Customer; or (C) any number of a Recipient to whom transmission of Telemarketing Messages is prohibited under applicable Law.
2.3. Customer shall ensure that for each Telemarketing Message: (A) the Message makes the disclosures required by Abusive Telemarketing Acts or Practices, Telemarketing Sales Rule; (B) the Message and information related to the Message (including the Recipient Numbers where the Message is instructed by Customer to be delivered) complies in all respects with the TCPA; (C) transmission of any collections Message complies with the Fair Debt Collection Practices Act (“FDCPA”); (D) the Customer telephone number provided in the Message allows a Recipient (or intended Recipient) to make a do-not-call request to reach Customer during Customer’s regular business hours; and (E) the Message includes (after the Customer identification and disclosures) a means for the Recipient to assert a do-not-call request.
In addition to the requirements stated above under Section 1:
3.1. Genesys Cloud Services cannot be used to transmit Messages to mobile phone numbers in the absence of Recipient’s consent. Customer is responsible for determine whether Recipient’s consent is sufficient to meet the obligations of applicable Law.
3.2. Customer is responsible for determining whether to transmit FTEU Messages or subject to standard messaging terms as applicable for Recipients.
3.3. With respect to Compliance Instructions related to a Recipient’s request to opt-out of receiving text Messages, Genesys will confirm an opt-out with one subsequent automatically-enabled Message only if a Recipient sends an explicit and unambiguous opt-out request directly to the Genesys Cloud Service platform via the same Recipient Number, and only in the event such request is transmitted by such Recipient’s mobile handset. Unless requested by Customer, Genesys will not send an opt-out confirmation in respect of any other Recipient opt-out request (e. g. an ambiguous text message, or an opt-out request initiated online, by email, by chat, by voice call, or letter addressed to a street address). Customer accepts sole responsibility for determining whether confirmation of an opt-out request is required by Law and for instructing Genesys to send out such Messages if so required. Customer is also solely responsible for determining whether the Genesys-enabled opt-out mechanism is sufficient for Customer’s needs or whether such mechanism is sufficient to comply with applicable Law.
3.4. Genesys uses all commercially reasonable efforts to ensure the accuracy of its List Profile Report service; but all such data is provided by the Providers. To that end, Genesys makes no representation or warranty of any kind regarding the accuracy of such data returned from the List Profile Report service. Notwithstanding the foregoing, Genesys’ actions or inactions do not relieve Customer of its responsibility for ensuring the propriety of using the Recipient Numbers provided to Genesys.
3.5. Short Codes are used for Customer Messages transmitted within the US. Customer may provide Short Codes for use with the Genesys Cloud Service or may request Genesys to lease Short Codes on Customer’s behalf. Leasing and provisioning a Short Code takes at least 45 days, and is dependent on receipt of information from Customer and coordination with Providers. Customer takes full responsibility for all information Customer provides in connection with leasing Short Codes. Customer acknowledges that its use of a Common Short Code is limited to the duration and purpose as set forth in the Short Code lease application. Customer will provide complete and accurate information in connection with leasing of Short Codes. At all times a Short Code is active, Customer will be billed for all inbound Text Messages received as well any responses transmitted to these inbound Text Messages.
3.6. Long Codes may be used for Customer Messages transmitted outside of the US.
3.7. Customer may lease a Random Short Code or, Vanity Short Code, either of which may be a Shared Short Code or Dedicated Short Code. Customer is responsible for all fees associated with Short Codes. Customer expressly acknowledges that Shared Short Codes may be leased to many other companies and thus are subject to a higher risk of misrouted communications (e.g., the Common Short Code Administration may lease a short code such as “24242” to multiple companies). Customer’s use of Shared Short Codes is at Customer’s sole risk. Genesys reserves the right to determine whether to support Shared Short Codes.
In addition to the requirements stated above under Section 1:
4.1. Customer shall ensure that for Commercial email Messages, (i) the “from” line, subject heading, and other identifying header information is not misleading or deceptive, (ii) the Message includes a functioning return E-mail address or other means for a Recipient to request not to receive future Commercial email Messages from Customer, (iii) the Message contains warning labels required by the CAN-SPAM Act for sexually oriented material, if applicable; and (iv) the Message does not include Email addresses obtained by means in violation of the CAN-SPAM Act, or of Recipient who has requested not to receive Commercial email Messages from Customer.
4.2. Upon Genesys’ request, Customer will provide proof that the intended recipients of any Commercial email Messages have affirmatively opted-in to receiving such Messages.
Customer shall ensure that any Sensitive Information transmitted or stored through use of the Engage Platform shall be done using Secure Enterprise. Customer acknowledges that speech-recognition and audio recording of Sensitive Numbers and PII (e. g. credit card, social security numbers) is supported only in an encrypted format in a Secure Enterprise. To capture numerical Sensitive Information in Secure Enterprise, Customer shall ensure that all callers enter such Sensitive Information through the Engage Platform only by pressing phone keys (DTMF).
6.1. Fees set forth in Services Orders are subject to Customer’s fulfillment of the Initial Subscription Term. Except as otherwise provided in an applicable Services Order, Customer is obligated to meet a minimum purchase commitment equal to the total monthly recurring fees times the number of months that comprise the Initial Subscription Term.
6.2. As reasonably requested by Genesys, Customer will provide Genesys with forecasts of Customer’s anticipated future usage of the Genesys Cloud Services. Customer’s forecast is for informational purposes to assist Genesys with capacity planning and service management; forecasts do not alter the terms of the Subscription.
6.3. General Pricing Notes
6.4. Voice Messaging Pricing Notes
6.5. Text Messaging Pricing Notes
6.6. Email Pricing Notes
7.1. Customer will submit requests for Support subject to the processes set forth in the Support User Guide. Prior to reporting an issue, Customer shall investigate the issue and make reasonable use of the self-help guides and information posted on the Customer Care Portal. Customer personnel submitting tickets must be knowledgeable and have access to information to facilitate resolution of reported issues. Genesys is not responsible for resolving issues that cannot be reproduced in a controlled test environment. All issues reported by Customer via Genesys Customer Care are tracked in the Genesys Customer Care Case Management Tool and assigned a case number for tracking purposes. Customer shall include the case number in all communications regarding a reported issue.
7.2. The Genesys Cloud Service includes such characteristics as 24×7 systems monitoring and administration. Upon completion of Provisioning, the Genesys Cloud Service will be available 24x7x365 except for downtime in respect of which Customer has received at least 3 days’ notice and which downtime will not exceed five (5) hours per month (“Scheduled Downtime”). Genesys will use commercially reasonable efforts to (i) provide Scheduled Downtime during off-peak business hours (10pm – 5am eastern); and (ii) avoid Scheduled Downtime that would impact all Genesys Cloud Service data centers at the same time. In the event that the Genesys Cloud Service is available for less than 99.9% of the total applicable time (excluding Scheduled Downtime) due to a “production outage” where the platform cannot process Messages on behalf of Customer for the applicable month, Customer may request a credit subject to the Customer’s provision of written notice of such unavailability within thirty (30) days after the end of the applicable month. Such notice must contain a description of service incident including the date and approximate beginning and end time of the production outage service incident for Genesys’ verification. Subject to Genesys’ verification that the service incident had occurred and that Customer’s ability to transmit Messages was impaired by such incident, Customer shall be entitled to recompense in the form of Credits for a production outage for the identified range as follows:
|Service Availability Percentage Range-Outages||Credits|
|< 99.9% ≥ 98.9%||1.5% of monthly Minimum Period Fees|
|< 98.9% ≥ 98.9%||2.5% of monthly Minimum Period Fees|
|< 98.9% ≥ 97.0%||5% of monthly Minimum Period Fees|
|< 97.0%||10% of monthly Minimum Period Fees|
7.3. Genesys, however, will not issue Credits for service incidents caused by: any services, equipment, networks, or the like over which Genesys has no control or does not manage, including but not limited to Customer-provided voice or data networks; Customer’s software, services, computers, facilities, power failures or 3rd party integrations; Customer or users, including modifications made by Customer, User or another third party to the Customer applications, Services, or any features or functionality thereof; actions or inactions required for compliance with Laws; Internet connectivity or failures, and Force Majeure events. This Service Level Agreement is applicable provided Customer is not in material breach of any of the Agreement. This Service Level Agreement, and corresponding Credits, if any, is the sole and exclusive rights and remedies regarding Genesys Cloud Service platform availability.
Customer agrees to Indemnify Genesys with respect to: (i) the Message (including but not limited to its content, transmission, timing, Recipient (including in respect of opt-outs), recording and retention), (ii) Customer’s use of the Genesys Cloud Services for marketing, debt collection and/or telemarketing activities; and (iii) Customer’s use of the Genesys Cloud Services for contests, sweepstakes or similar events (each, a “Covered Claim”), except to the extent a Covered Claim arises as a result of Genesys’ gross negligence or intentional misconduct or a failure of the Genesys Cloud Service to correctly execute Compliance Instructions.
Capitalized terms in this Exhibit 1 and in the Services Order shall have the meanings set forth below and as defined elsewhere in this SOW:
9.1. Campaign: a specific Message or set of Messages communicated to Recipients using the Genesys Cloud Services.
9.2. Communications Circuits: Data and voice communications circuits described in the applicable User Guide provided by one or more telecommunications service providers, via Genesys, for use by Customer that may be made only in connection with Customer’s use of the Genesys Cloud Service. Communications Circuits shall not include any other voice, data, long distance services or other external network facilities required to enable Customer to use the Genesys Cloud Service in the manner intended; such other facilities will be provided by and paid for by Customer.
9.3. Engage Platform: The Genesys Cloud Services platform designed to provide a single, unified platform supporting fully-integrated, multi-channel proactive customer communication messaging strategies (voice, text, email, web and dialer) and follow up reporting.
9.4. FDCPA: Fair Debt Collection Practices Act.
9.5. Improper Communications: 911 calls and other emergency, fraudulent, harassing, unauthorized, or obscene communications.
9.6. Initiate(ion): The service provided in respect of Messages, by the Genesys Cloud Communication platform, to cause Messages to be transmitted by the Genesys Cloud Service. For clarity, Initiation of Messages may not result in a Recipient’s receipt of the Message. For example with respect to SMS and MMS Messages transmitted using Short Codes, the Genesys Cloud Platform Initiates the Messages to Provider(s), but the Genesys Cloud Service platform does not carry the Message to a Recipient. From the point of completion of Initiation, the remaining transmission is provided by Providers.
9.7. List Profile Report: Information about each device (phone number or email address) and/or the Provider information contained within a list on the Genesys Cloud Service platform. The report provides a record for each device contained in each contact in the list and the Provider of that device.
9.8. Messages: The data, text, audio, music, sound recordings, ring tones, graphics, photographs, audio-visual works, artwork, URLs and other materials in electronic form, whether provided by Customer or a third party retained by Customer or acting on Customer’s behalf, that Customer may transmit to a Recipient through the voice, Text Messages, multi-media Message, social media, webchat, web-callback Email or other web-based channels.
9.9. Providers: Paging and mobile network carriers and other suppliers that provide message routing for the telephone industry and other services.
9.10. Recipient Numbers: The telephone numbers to and web addresses at which Customer may cause the Initiation of a Message.
9.11. Short Codes: Short codes are special telephone numbers, shorter than full telephone numbers, used in connection with SMS and MMS Messages. A Short Code may be specific to one mobile operator or “common” and thus supported by major mobile operators within a specific geography. The Common Short Code Administration is responsible for leasing common Short Codes and establishing the terms for use with US-based mobile telephone numbers. Short Codes may be comprised of random numbers or specific, easier to communicate numbers (“Random Short Codes” or “Vanity Short Codes”, respectively). Common Short Codes may be shared by many companies or dedicated for a company’s exclusive use during the leasing term (“Shared Short Codes” or “Dedicated Short Codes”, respectively).
9.12. TCPA: Telephone Consumer Protection Act.
9.13. Telemarketing Message: A Message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services. Except as specifically identified otherwise, the term Telemarketing Message also includes solicitation for charitable contributions.