GENESYS MASTER SUBSCRIPTION AGREEMENT

For Cloud Services

BY EXECUTING A SERVICE ORDER OR STATEMENT OF WORK THAT INCORPORATES THIS AGREEMENT, CUSTOMER AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS GENESYS MASTER SUBSCRIPTION AGREEMENT. THE PERSON ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER CONFIRMS THAT HE OR SHE HAS READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAS THE AUTHORITY TO BIND CUSTOMER AND ITS RELATED PARTIES HERETO.

GENESYS MASTER SUBSCRIPTION AGREEMENT

For Cloud Services

***CONFIDENTIAL***

This Master Subscription Agreement (“Agreement”) is executed by the parties to the Services Order.  By executing a Services Order, the parties agree to be bound by the applicable Service Orders and the Agreement. Capitalized terms shall have the meanings defined throughout and in Section 13. In consideration of the mutual promises and obligations in the Agreement, the sufficiency of which is hereby acknowledged, the parties agree as follows.

1. SERVICES

1.1. Subject to the terms of the Agreement, Genesys grants Customer a non-transferable, non-sublicensable, non-exclusive Subscription to access and use the Genesys Cloud CX Service during the Subscription Term.

1.2. Genesys will make Support for the Genesys Cloud CX Service available to Customer at the Support Level set forth in the Services Order. Customer’s access and use of Support is subject to the terms of the applicable Support Guide for Cloud Subscriptions. Genesys reserves the right to make changes to the Support Guide which become effective for Customer upon commencement of a Renewal Term. Genesys also reserves the right to update Support case management processes as needed and may elect to post an announcement on My Support, the Customer Care portal.

1.3. Customer may retain Genesys to perform Professional Services as set forth in a mutually acceptable Statement of Work (“SOW”).

1.4. Customer may retain Genesys to provide training as set forth in a Services Order.  Customer’s access and receipt of training is subject to the terms set forth at https://ebooks-genesys.com/TUTerms.

2. INVOICING AND PAYMENT

2.1. Payments will be due within thirty (30) days of the date of the applicable invoice.

2.2. Fees shall be as set forth in the Services Order or SOW (“Fees”). Unless otherwise stated in a Services Order or this Agreement: (a) all Fees are quoted and payable in the currency set forth in the applicable Services Order, and (b) Customer will be invoiced for the Professional Services Fees as set forth in the SOW. Genesys reserves the right to update Fees and other terms for any Renewal Term by notice to Customer at least ninety (90) days’ prior to the end of the then-current Term. Such changes will become effective for Customer upon commencement of a Renewal Term.

2.3. Customer will reimburse all pre-approved travel and other expenses incurred in connection with the Services.

2.4. Fees are exclusive of applicable Taxes and Regulatory Charges. Customer will reimburse Genesys for Taxes and Regulatory Charges arising in connection with the Services.

2.5. If Customer in good faith disputes the amount of any invoice, Customer will timely pay the undisputed amount and will notify Genesys in writing of the disputed amount no later than the date payment would otherwise be due, providing the reasons for the dispute. The parties will attempt in good faith to resolve the dispute within thirty (30) days after Genesys’ receipt of Customer’s notice of dispute (the “Resolution Period”), during which time Customer’s withholding of the disputed amount will not be considered a material breach of this Agreement. Upon resolution of the dispute, Customer will pay the resolved amount promptly but in any case within ten (10) days of mutual written agreement resolving the dispute. If the dispute is not resolved within the thirty-day (30) Resolution Period, then each party will be entitled to pursue all available remedies.

3. TERM AND TERMINATION

3.1. The term of the Agreement shall commence upon the Effective Date and shall continue for the duration of any effective Services Orders or SOWs. The Initial Subscription Term will commence upon the Scheduled Provisioning Date.

3.2. ​In the absence of a written non-renewal notice provided at least sixty (60) days prior to the end of the applicable Term, each Subscription Term shall automatically renew for Renewal Subscription Terms as set forth in the applicable Services Order.

3.3. Either party will have the right to terminate the Agreement by written notice to the other party if (a) the other party has breached a material obligation under the Agreement or any Services Order or SOW and such breach remains uncured for a period of thirty (30) days after written notice of such breach is sent to the other party; provided  such breach is curable, it being understood that a breach of Sections 4.1 and 4.2 are incurable.; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Upon any termination of the Agreement by Customer for breach by Genesys, Genesys shall refund any prepaid Fees covering the remainder of the Subscription Term after the effective date of termination. Upon any termination of the Agreement by Genesys for breach by Customer, Customer shall pay any unpaid Fees covering the remainder of the Subscription Term after the effective date of termination, and prepaid fees shall not be refunded. Termination of the Agreement by a party shall be without prejudice to any right or remedy of such party under the Agreement or applicable Law. If, during the cure period referenced in 3.2(a), Genesys documents an effort to promptly cure the breach, then, notwithstanding anything to the contrary, Customer will not terminate this Agreement or a Services Order or SOW while such good faith efforts are continuing. Genesys’ efforts to cure the breach may not exceed 120 days from Customer’s notice.

3.4. Notwithstanding any term in the Agreement to the contrary, Genesys reserves the right to suspend the Genesys Cloud CX Services, or portion thereof, or reject or cancel the transmission of any information through the Genesys Cloud CX Service based upon (i) reasonable belief that the use of the Genesys Cloud CX Services is in violation of applicable Laws, (ii) Customer’s failure to pay amounts when due, or (iii) an imminent compromise to the security or integrity of the network. As practicable depending on the circumstances, Genesys will provide notice of the suspension and keep Customer reasonably informed of Genesys’ efforts to restore the Genesys Cloud CX Services.

3.5. Except as otherwise stated therein, upon execution by both parties, each Services Order shall be a non-cancelable, non-refundable order by Customer. The Fees and Subscription Term stated on each Services Order shall be applicable only for that Services Order. Fees shall apply during periods of suspension and as incurred for unauthorized use of the Genesys Cloud CX Service.  Customer’s purchase of the Genesys Cloud CX Service is not conditioned on the availability of any future service or enhancement. Upon termination of this Agreement (or a Services Order) for any reason all licenses granted hereunder and Customer’s access to the Services will terminate.

4. INTELLECTUAL PROPERTY

4.1. All Intellectual Property Rights in the Services (and other materials or services provided hereunder) remain the exclusive property of Genesys and its licensors or suppliers, as applicable. Genesys and its licensors and suppliers reserve all rights not expressly granted in this Agreement and own all rights in all Derivative Works of the Services (and other materials provided hereunder) and any copy, translation, modification, adaptation or derivation (including any improvement or development) of the Services (and all other materials provided hereunder).

4.2. No implied licenses are granted hereunder. Customer is granted no rights in or to the Services except as expressly set forth under a Services Order. Customer shall not (a) modify or create any Derivative Works, functionally equivalent works, or translations of the Services or any other materials provided hereunder, (b) reverse engineer the Services or take any action that jeopardizes Genesys’ rights or the rights of its licensors and service providers in any materials, including the Services, made available to Customer hereunder; (c) access the Services in order to build a competitive product or service or to assist anyone else to compete with Genesys; or (d) use the Services in a way that violates any Law. Genesys Cloud CX Services include tools that can be used to create content related to Customer Data. The algorithms, compilations, collation methods and anonymized analyses created through the use of Genesys Cloud CX Services are considered Derivative Works and therefore are retained by Genesys.  Customer retains, however, non-anonymized analyses of Customer Data obtained from its use of such tools.

4.3. As between Genesys and Customer, the Customer Data are the proprietary material of Customer and shall be considered Customer’s Confidential Information. Customer grants Genesys a non-exclusive, non-sublicenseable (except to parties working on Genesys’ behalf), non-transferable, royalty-free license to access, process, store, transmit, and otherwise make use of the Customer Data as directed by Customer or as necessary to provide the Services and to otherwise fulfill its obligations under and in accordance with the Agreement.

4.4. To the extent not already owned by Genesys and subject in each case to Section 12.1 to the extent Customer is identified by name or logo, Customer, on behalf of itself and its Related Parties, hereby grants Genesys a perpetual, exclusive, royalty-free, worldwide license to use or disclose (or choose not to use or disclose), and create derivative works of Feedback for any purpose, in any way, in any media worldwide.

4.5. Nothing in this Agreement precludes or limits Genesys in any way from providing materials or services that are similar to materials or services provided or contemplated in this Agreement or 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 Services. Genesys will be free to use any concepts, processes, techniques, improvements or other know-how developed by Genesys in the course of performance of this Agreement free from any use restriction or payment obligation.  For the avoidance of doubt, but subject to this Agreement, including this Section 4.5, Genesys does not claim any rights to any of Customer’s Confidential Information.

5. WARRANTIES

5.1 Genesys warrants that the (i) Professional Services and (ii) Maintenance and Support will be performed in a professional and workmanlike manner and in accordance with applicable requirements of this MSA.

5.2 Genesys warrants that the Genesys Cloud CX Services will materially conform to the specifications set forth in the Documentation.  For purposes of this Section 5, “Documentation” shall mean applicable technical published manuals that accompany the Genesys Cloud CX Services.

5.3 Customer’s sole and exclusive remedy for breach of the warranties set forth in this section shall be for Genesys to re-perform non-conforming services or to correct errors.

5.4 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, THE SERVICES ARE PROVIDED TO CUSTOMER ON AN “AS IS” ‘WHERE IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. GENESYS MAKES NO REPRESENTATIONS OR WARRANTIES THAT USE OF THE GENESYS CLOUD SERVICE WILL BE UNINTERRUPTED, TIMELY, COMPLETE, OR ERROR-FREE.

6. LIMITATION OF LIABILITY

6.1. THE CUMULATIVE AGGREGATE LIABILITY OF A PARTY AND ALL OF ITS RELATED PARTIES (AND IN THE CASE OF GENESYS, ITS LICENSORS OR SERVICE PROVIDERS) UNDER THE AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED THE FEES PAID TO GENESYS DURING THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE COMMENCEMENT OF THE DISPUTE FOR THE SERVICES THAT ARE THE SUBJECT OF THE DISPUTE. CUSTOMER 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.

6.2. IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS RELATED PARTIES (AND IN THE CASE OF GENESYS, ITS LICENSORS OR SERVICE PROVIDERS) BE LIABLE TO THE OTHER PARTY OR ANY OF ITS RELATED PARTIES (AND IN THE CASE OF GENESYS, ITS LICENSORS OR SERVICE PROVIDERS) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE DAMAGES OF ANY CHARACTER, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOSS OF BUSINESS OR GOOD WILL, WORK STOPPAGE, LOST PROFITS, REVENUE, DATA OR USE, COMPUTER FAILURE OR MALFUNCTION AND TELECOMMUNICATIONS CHARGES FROM UNAUTHORIZED ACCESS), COVER DAMAGES , OR OTHER SIMILAR DAMAGES REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER IN CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY OR ANY OF ITS RELATED PARTIES (AND IN THE CASE OF GENESYS, ITS LICENSORS OR SERVICE PROVIDERS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AN AGREED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS HELD UNENFORCEABLE FOR ANY OTHER REASON.

6.3. THIS LIMITATION OF LIABILITY SHALL NOT OPERATE SO AS TO: (I) REDUCE ANY AMOUNTS DUE AS FEES; (II) LIMIT LIABILITY ARISING IN CONNECTION WITH INDEMNIFICATION OBLIGATIONS; OR (III) LIMIT LIABILITY FINALLY DETERMINED TO HAVE RESULTED FROM A PARTY’S GROSS NEGLIGENCE OR WILFULL MISCONDUCT. 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. CONFIDENTIALITY

7.1. During the Confidentiality Period, recipient shall (a) protect the confidentiality of all Confidential Information using the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care) to prevent unauthorized use or disclosure; (b) not use any Confidential Information except as expressly authorized in the Agreement; (c) not disclose, orally or in writing, any Confidential Information to any person, other than an employee, consultant or agent of recipient bound by terms at least as restrictive as those set forth herein with a need to know such Confidential Information.

7.2. The obligations in Section 7.1, however, shall not apply to any information which: (a) is already in the public domain or becomes available to the public through no breach of the Agreement by recipient; (b) was in the recipient’s possession prior to receipt from discloser, as proven by recipient’s written records; (c) is received by the recipient from a third party free to disclose such information to recipient; or (d) is independently developed by recipient without use of the Confidential Information.

7.3. Nothing in this Agreement shall prevent a party from disclosing Confidential Information to the extent required by applicable Law, judicial or administrative process, provided that recipient shall: (i) notify discloser of any duty to disclose, affording opportunity for discloser to take protective actions (except to the extent notice is prohibited by Law), and (ii) disclose only as much of the Confidential Information as required, maintaining all proprietary notices applicable to such Confidential Information.

7.4. Upon written request in connection with termination of the Agreement, each party shall deliver to the other party or destroy all copies of such other party’s Confidential Information. Notwithstanding the foregoing, recipient may retain an archival record of Confidential Information to the extent required pursuant to applicable Law subject to recipient’s compliance with the remaining terms of this section.

8. COMPLIANCE WITH LAWS

Each party shall comply with all applicable Laws in connection with the performance of its obligations under this Agreement. Notwithstanding the foregoing, however, Genesys is not responsible for ensuring that the Services, or Customer’s use thereof, comply with any Laws applicable to Customer’s business or industry, including, without limitation communications and privacy regulations such as the Telephone Consumer Protection Act of 1991 and the Health Insurance Portability and Accountability Act (HIPAA).

9. USE OF THE SERVICE

9.1. Customer will not, and will not permit or authorize others, to use the Genesys Cloud CX Service for any of the following:

9.1.1. to violate applicable Law;

9.1.2. to transmit Malicious Code;

9.1.3. to transmit 911 or any emergency services (or reconfigure to support or provide such use);

9.1.4. to interfere with, unreasonably burden, or disrupt the integrity or performance of the Genesys Cloud CX Services or third-party data contained therein;

9.1.5. to attempt to gain unauthorized access to systems or networks; or

9.1.6. to provide the Genesy s Cloud Services to non-User third parties, including, by resale, license, lend or lease.

9.2. Customer will use commercially reasonable efforts to prevent and/or block any prohibited use by Customer personnel or Customer’s Users.

9.3. Customer will maintain any reasonable, appropriate administrative, physical, and technical level of security regarding its account ID, password, antivirus and firewall protections, and connectivity with the Genesys Cloud CX Services.

9.4. Customer shall maintain strict security over all VoIP Services lines. Customer acknowledges that Genesys does not provide Customer the ability to reach 911 or other emergency services and Customer agrees to inform any individuals who may be present where the Genesys Cloud CX Services are used, or who use the Genesys Cloud CX Services, of the non-availability of 911 or other emergency dialing.

9.5. If the Genesys Cloud CX Service will be used to transmit or process Sensitive Information, Customer will ensure that all Sensitive Information is captured and used solely via the use of available Security Features.

9.6. Recordings. As between Genesys and Customer, Customer acknowledges that Recordings are solely within its discretion and control. Without limiting the foregoing: (i) Customer accepts sole responsibility for determining the method and manner of performing recording such that it is compliant with all applicable Laws and for instructing the services accordingly; and (ii) Customer shall ensure that Recordings shall be made only for diagnostic, quality assurance, archival, and/or Support purposes, and in any event only for purposes required and/or in compliance with, all applicable Laws.  Customer will ensure that either (a) Recordings will not knowingly include any bank account number, credit card number, authentication code, Social Security number, or other personal or Sensitive Information, except as allowed or required by all applicable Laws; or (v) Recordings are encrypted at all times. To the extent Recordings are encrypted or where encryption is electable by Customer as part of the Service, Customer shall elect such encryption.  Customer shall not modify, disable, or circumvent the Recording encryption feature within the Genesys Cloud CX Services and shall otherwise ensure that it will use the Genesys Cloud CX Services in compliance with the encryption feature.

10. CUSTOMER DATA

10.1. General.

10.1.1. Customer acknowledges and agrees that the Customer Data may be transferred or stored outside the country where Customer and its customers are located in order to carry out the Services and Genesys’ other obligations under the Agreement.

10.1.2. Customer represents and warrants that it has obtained all consents necessary for Genesys to collect, access, process, store, transmit, and otherwise use Customer Data in accordance with the Agreement.

10.1.3. Customer shall comply with all requirements of integrity, quality, legality and all other similar aspects in respect of Customer Data and Messages. Genesys may, but is not obligated to, review or monitor any Customer Data. Genesys expressly disclaims any duty to review or determine the legality, accuracy or completeness of Customer Data used through the Genesys Cloud CX Services.

10.1.4. If Customer, End Users or Persons provide credit card information to the Genesys Cloud CX Services, Customer retains responsibility for compliance with all applicable standards, including the Payment Card Industry Data Security Standards (“PCI-DSS”).

10.1.5. Each party will comply with the European Union Directive 95/46/EC (the “EU Directive”) or such similar Laws within or outside of the EU (“Similar Data Security Laws”), as each applies to the performance of such party’s obligations under the Agreement. To the extent that either party is a Data Processor such party shall only process Personal Data in accordance with the instructions of the Data Controller. (The terms “Data Processor”, “Data Controller” and “Personal Data” are as defined in the EU Directive, and shall be deemed to denote analogous terms under Similar Data Security Laws.) The Data Processor shall promptly notify Data Controller if it receives any complaint, notice or communication which relates directly or indirectly to the processing of Personal Data under the Agreement, and provide full co-operation and assistance in relation to any such complaint, notice or communication.

10.2. Protection of Customer Data.

10.2.1. Unless Customer’s failure to comply with Section 9 prevents Genesys from doing so, Genesys shall maintain reasonable, appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data and (ii) Genesys shall maintain its status as a PCI-DSS Level 1 compliant service provider and comply with applicable credit card association rules regarding cardholder data security.

10.2.2. Genesys shall not modify, disclose, or access Customer Data except to provide the Services and perform Support to prevent or address service issues or technical problems, at Customer’s request in connection with Support, or to the extent otherwise permitted in the Agreement.

10.2.3. Genesys will have no obligation to maintain a system-level backup of the Customer Data except as set forth in the applicable User Guide or as required by applicable Laws. Customer Data will be stored by the Genesys Cloud CX Service for the time periods set forth in the applicable User Guide unless otherwise set forth in the applicable Services Order.

11. INDEMNIFICATION

11.1. Subject to the Exclusions, Genesys shall pay to defend Customer at Genesys’ expense, indemnify Customer against any judgments finally awarded by a court and pay any settlements approved by Genesys with respect to any third-party claims that the original, unchanged Genesys Cloud CX Service, as it stands alone, infringes or misappropriates any third party’s Intellectual Property Rights as identified in a patent or copyright that is valid and enforceable in the United States. Genesys may at any time and at its option and expense: (i) obtain for Customer the right to continue using the Genesys Cloud CX Service, (ii) modify or replace or modify the Genesys Cloud CX Service so that it becomes non-infringing while retaining substantially similar functionality; or (iii) if neither of the foregoing remedies can be reasonably effected by Genesys, terminate Customer’s right to use the Genesys Cloud CX Service and refund to Customer any prepaid, unused Fees. The provisions of this Section 11 state the sole, exclusive, and entire liability of Genesys and are Customer’s sole remedy with respect to the infringement of third party intellectual property rights.

11.2. Customer will defend Genesys and its Related Parties at Customer’s expense, indemnify Genesys and its Related Parties against any judgments finally awarded by a court, and pay any settlements approved by Customer with respect to any claims:  (a)  that Customer Data and/or Customer’s method or process of doing or conducting business infringes any Intellectual Property Rights of a third party; (b) arising from Customer’s non-compliance with Section 4 (Intellectual Property); or (c) that the Services or the use thereof infringes any Intellectual Property Rights of a third party to the extent such claim arises in connection with an Exclusion(s).

11.3. A party entitled to indemnification (“Indemnified Party”) shall take all reasonable steps to mitigate any potential expenses and shall provide the other party (the “Indemnifying Party”) with:  (i) prompt written notice of any such claim or actions, or possibility thereof upon becoming aware of the same; and (ii) relevant information (subject to confidentiality restrictions the Indemnified party owes to third parties), authority and reasonable assistance to settle or defend and such claim or action. 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 Indemnified Party shall tender sole control and authority over to the Indemnifying Party, and reasonably assist with the defense or settlement of such claim or action. Notwithstanding the foregoing, the Indemnified Party shall have the right to retain counsel of its own choice, at its own expense, in respect of the subject of the Indemnification, for purposes including services as co-counsel, or to monitor the defense provided by the Indemnifying Party’s appointed counsel.  The Indemnified Party shall have the right to approve counsel selected by the Indemnifying Party, which approval shall not be unreasonably withheld or delayed.

12. MISCELLANEOUS

12.1. Marketing. Subject to Customer’s written consent in each instance, Customer grants Genesys the right to use Customer’s name and logo to identify Customer as a Genesys customer. Subject to prior written approval of content, Customer grants Genesys the right to issue a media release after execution of the Agreement announcing that Customer has become a Genesys customer, and to make other announcements and place promotion in various publications and media. Customer agrees that, not less than once per calendar quarter during the Term of this Agreement, to act as a reference customer as requested by Genesys. Except as set forth in a mutually agreed written public statement, Customer will not imply or state that Customer is affiliated with or endorsed by Genesys, publicize the existence of the Agreement, or disclose any of its terms.

12.2. Assignment. Neither party may assign its rights or obligations under the Agreement, either in whole or in part, except (1) with respect to a sale of substantially all of the assets of its business, merger, or change in the party’s ownership, or (2) with the prior written consent of the other party, which shall not be unreasonably withheld. Without limiting the preceding sentence, the rights and liabilities of the parties hereto shall bind and inure to the benefit of their respective successors and assigns.

12.3. Government Usage. This is a commercial item agreement. If the Services are acquired by or on behalf of the U.S. Government, a state or local government, or a prime contractor or subcontractor (of any tier) of the foregoing, such government customers and users shall obtain only those commercial license rights set forth in the Agreement.

12.4. Professional Services. Genesys will perform Professional Services on a time and materials basis unless otherwise stated in an SOW. Genesys shall control the manner by which the Professional Services are performed. Genesys reserves the right to make all staffing decisions in its sole and reasonable discretion. Customer shall make available at no charge all technical data, computer facilities, programs, files, documentation, test data, sample output, office space, equipment and other assistance as reasonably requested by Genesys in the performance of Professional Services. Genesys retains sole and exclusive ownership of all materials created in connection with its performance of the Professional Services, including but not limited to: methodologies, know-how, source and object code; specifications, configurations, designs, architecture, processes, techniques, concepts, discoveries, and, inventions made or developed (collectively, “PS Creations”), in addition to all Derivative Works of the foregoing. To the extent, and for any reason the foregoing statement of ownership is not effective, Genesys shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use, including the incorporation into the Genesys Cloud CX Service, all PS Creations. Unless otherwise set forth in the Statement of Work, Customer is hereby granted a license to use the PS Creations solely in connection with, and under the same provisions as, its use of the Genesys Cloud CX Services.

12.5. Survival: The provisions of the Agreement regarding payment, confidentiality, assignment, licenses, definitions, limitation of liability, intellectual property and any provision which by its nature should survive, will survive the termination of the Agreement. In the event that any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions of the Agreement shall remain in full force.

12.6. Cumulative Remedies, Force Majeure and Injunctive Relief: All remedies available to Genesys will be cumulative and the specification of a remedy will not preclude Genesys from pursuing other remedies available at law, or in equity. Neither party will be responsible for acts of Force Majeure. Nothing in this Agreement will prevent Genesys from seeking immediate injunctive relief against Customer in the courts having jurisdiction over Customer.

12.7. Governing Law: This Agreement shall be governed by the laws set forth in Table 1 below, based on the Customer’s domicile, without reference to conflicts of law provisions. The parties agree to submit to the personal and exclusive jurisdiction of such courts and that venue therein is proper and convenient as set forth in Table 1. In the event more than one Genesys entity is or becomes a party the Agreement, the governing law shall be California and United States federal law; and, the California state courts in and for San Mateo County, California (or, if there is federal jurisdiction), the United States District Court for the Northern District of California, each of which shall have the personal and exclusive jurisdiction, which such jurisdiction is acknowledged to be proper and convenient. The UN Convention for the International Sale of Goods shall not apply to the Agreement in whole or in part. In any dispute under the Agreement, the prevailing party shall be entitled to recover its cost of enforcing its claim, including but not limited to attorney fees.

12.8. Authority to Execute: The party executing the Agreement on behalf of the parties represents and warrants that he or she has been duly authorized under the party’s charter documents and applicable law to do so.

12.9. 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.

12.10. Third party beneficiaries: No third-party beneficiary relationships are created by this Agreement.

12.11. Notices: All notices under the Agreement shall be in writing and shall be deemed to have been given when (a) personally delivered; (b) sent by electronic facsimile transmission; or (c) sent by registered mail, postage prepaid (which notice shall be deemed to have been received on the third (3rd) business day following the date on which it is mailed) or (d) sent overnight by a commercial overnight courier that provides a receipt (which notice shall be deemed to be received on the next business day after mailing). Notices to either party shall be sent to the applicable address set forth in the preamble of the Agreement or such other address as a party may notify the other party of in writing.

12.12. Waiver: No provision of the Agreement may be waived unless such waiver is in writing and signed by the party against which the waiver is to be effective.

12.13. Complete Agreement; Amendment. The Agreement constitutes the complete agreement between the parties and supersedes all prior agreements and representations, written or oral, concerning the subject matter of the Agreement. In the event of a conflict between the terms of a Services Order and the other provisions of the Agreement, the terms of the Services Order shall take precedence; however, Sections 6, 8, 9, 10 and this section 12.13 of the Agreement may only be modified in the Services Order by a direct reference to such sections. The Agreement may not otherwise 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 Customer purchase order or other ordering document.

12.14. 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 two (2) or more counterparts, each of which is deemed an original, but which together constitute one contract or document. 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.

12.15. Subcontracting. Genesys may subcontract certain portions of the Services under this Agreement to third parties, provided that Genesys shall be responsible for the performance of such subcontractors.

13. DEFINITIONS

Affiliate: A business entity that: (a) Controls the party; (b) is Controlled by the 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 ownership of a majority of shares or by control of the board of management.

Confidential Information: Any information disclosed by one party to the other party, or otherwise learned by the recipient from the discloser, marked “confidential” or disclosed or learned under circumstances that would lead a reasonable person to conclude that the information was confidential. Notwithstanding the foregoing, Genesys Confidential Information includes but is not limited to the Services and the terms of this Agreement and Customer Confidential Information includes but is not limited to Customer Data. In addition, whether or not marked “confidential” or otherwise identifiable as confidential, the following information shall be deemed Confidential Information of the discloser: inventions, product development plans, education materials, pricing, marketing plans, and customer lists.

Confidentiality Period: The longer of: (i) three (3) years after termination of the Agreement, or (ii) indefinitely with respect to trade secrets, Customer Data, and the Services.

Customer Data: (a) all data submitted through the Genesys Cloud CX Service by Customer or Users; and (b) the non-anonymized content of any reports generated by the Genesys Cloud CX Service regarding Customer’s use of the Genesys Cloud CX Service.

Derivative Work: A new or modified work that is based on or derived from all or any part of the Services, including without limitation, a revision, modification, translation, localization, adaptation, abridgment, port, condensation or expansion, in any form, of the Services, or any work that would infringe any copyright if created without the authorization of the copyright holder or any other intellectual property right in the Services or that uses trade secrets or other Confidential Information embodied in or used by the Services.

Effective Date: The effective date of the Agreement, which shall be the date both parties have signed the Agreement.

Exclusions: are conditions that are deemed excluded from, and that terminate, Genesys’ warranty, defense or indemnity obligations, as follows: (i) use of Genesys Cloud CX Service in combination with any non-Genesys equipment, software, services, processes, data or materials; (ii) Customer’s non-compliance with this Agreement or documentation, including the User Guide; (iii) use of the Genesys Cloud CX Service after receipt of notice from Genesys to discontinue such use; (iv) the development or use of any alteration, derivation, modification or customization of the Genesys Cloud CX Service regardless of whether developed by Genesys, Customer, or any other person or entity and regardless of whether developed using any Genesys tools, methods or training; (v) Genesys’ compliance with Customer’s requests or instructions or the use of any materials provided by Customer; (vi) Customer’s business method(s) or process(es); (vii) Customer content or Customer Data.

Feedback: any suggestions, enhancement requests, recommendations, report, feedback, proposals, anonymized statistical data or other information concerning the Genesys Cloud CX Service provided by Customer to Genesys hereunder. 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.

Force Majeure: Delays or failures on performance resulting from acts beyond the control of a party. Such acts include acts of God, provider blockades, 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.

Genesys Cloud CX Service(s): The individual services and use of features and functionality of Genesys proprietary software and supporting facilities, all as further described in the applicable User Guide, that are ordered by Customer by a Services Order. The term “Genesys Cloud CX Service” excludes Professional Services, Support and the use of Third-Party Applications.

Indemnify (and all forms of the word (e. g. Indemnification): Agreement to indemnify, hold harmless, and defend the other party and its Related Parties and from and against any and all third-party claims, demands, sums of money, actions, rights, causes of action, obligations, allegations and liabilities of any kind or nature whatsoever, and from any resulting liabilities, damages, losses, and costs (including, but not limited to, attorney fees and disbursements) arising from or relating, directly or indirectly, to the use, act, omission, or manner set forth as the subject of and giving rise to the claim.

Initial Subscription Term: The minimum term for the initial Subscription under each Services Order.

Intellectual Property Rights: Any and all technology, know-how, software, data, ideas, formulae, processes, charts, Confidential Information, and any other materials or information and any and all worldwide intellectual property rights (present and future) therein and thereto, including copyrights, trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights.

Law(s): Laws, statutes, regulations, directives, rules, standards and the like of any territorial division (e. g. federal, national, state, province, etc.).

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 Genesys’ or another’s computer or property.

Professional Services (or PS): The professional services described in a Statement of Work executed by the parties.

Recordings: Recorded inbound or outbound Genesys VoIP Service transmission, performed by Customer, via the Genesys Cloud CX Service as set forth in the applicable User Guide.

Related Parties: A party’s past, present and future officers, directors, employees, and other personnel, agents, insurers, reinsurers, servants, attorneys, parent company, subsidiaries and affiliates.

Renewal Term(s): Each subsequent term of a Services Order after the Initial Subscription Term. Each Renewal Subscription Term shall commence upon the anniversary date of the commencement of the Initial Subscription Term.

Security Features: The features and functionality associated with the Genesys Cloud CX Service used to help secure transmitted data. Security Features may include secure SIP/RTP, voice connection encryption, log masking, or other similar features.

Sensitive Information: All sensitive Customer Data, including but not limited to personal health information (PHI), personally-identifiable information (PII) and credit card information.

Services: The Genesys Cloud CX Service, Professional Services, Support and all related services provided under the Agreement.

Service Level Agreement: Genesys’ agreement to perform the Genesys Cloud CX Services in accordance with specific metrics, subject to a defined set of remedies as set forth in Sections 12 and 13 of the Supplemental Terms of this Agreement.

Services Order(s): The document by which Customer orders Genesys Cloud CX Services, or other goods and services that Customer may purchase from Genesys pursuant to this Agreement. Services Order shall include: (a) a description of items being ordered, including Subscription Term, and the quantity, (b) Fees, method of determining Fees, and pricing terms, (c) billing address; and (d) other addresses for the parties, if applicable. Genesys reserves the right to waive any or all of the aforementioned requirements either in writing or by fulfilment of the Order.

Subscription: Term-based grant, for a specified time to use a specific quantity and type of Genesys Cloud CX Service, all as described in the applicable Services Order. Subscriptions exclude services and expenses associated with decommissioning Customer’s use of the Genesys Cloud CX Service, migration of Customer Data, and storage and retrieval of records associated with Customer’s use of the Services.

Subscription Term: The Initial Subscription Term and all Renewal Subscription Terms.

Support: the maintenance and support of the Genesys Cloud CX Service, subject to the terms and policies set forth in the applicable Support Guide.

Support Guide: The applicable online guide which sets out a description of the Support and is accessible via Support Guide for Cloud Subscriptions, as updated from time to time. The Support Guide is incorporated by reference into and made a part of the Agreement.

Support Level: The applicable level of Support as selected by Customer and elected under the Services Order.

Taxes and Regulatory Fees: Any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including regulatory fees (such as USF), fines, penalties, value-added, use or withholding taxes. Taxes and Regulatory Fees shall not include charges based upon Genesys’ income or employees.

Term: Any term (time period) under the Agreement (e. g. Subscription Term, License Term).

Third-Party Applications: Third party or Customer-developed online, Web-based applications and offline software products that are provided by Customer or third parties, that may or may not interoperate with the Genesys Cloud CX Service.

User Guide: The applicable online guide which sets out a description of the Genesys Cloud CX Service and is accessible via https://docs.genesys.com/Documentation/PSAAS#t-3, as updated from time to time. The User Guide is by reference incorporated into, and made a part of the Agreement.

Table 1. Governing Law, Jurisdiction, Notices.

If Customer, as of the Effective Date of the Service Order, is domiciled in:Customer is contracting with the following Genesys entity:The governing law is:The courts have exclusive jurisdiction are:Notices to Genesys should be sent to the following addresses:
AustraliaGenesys Laboratories Australasia Pty LtdThe laws of the State of New South Wales, Australia govern this Agreement. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia and waives any objection to proceedings in such courts on grounds of venue or that the proceedings have been brought in an inconvenient forum.The laws of the State of New South Wales, Australia govern this Agreement. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of New South Wales, Australia and waives any objection to proceedings in such courts on grounds of venue or that the proceedings have been brought in an inconvenient forum.Attention: Legal Department
Genesys Laboratories Australasia Pty Ltd
Level 17, 124 Walker Street
North Sydney
New South Wales 2060
Australia

With copy to:
Genesys Telecommunications Laboratories B.V.
Attn: Legal
Gooimeer 6-02, 1411 DD Naarden,
The Netherlands
Fax: +31.35.808030
BrazilGenesys Laboratórios de Telecomunicações Ltda.BrazilThe courts located in Sao Paulo, State of Sao Paulo, Brazil.Genesys Laboratórios de Telecomunicações Ltda.
Attn: Legal
Rua Joaquim Floriano, 243, Suite 113
Itiam Bibi, São Paulo CEP 04535-010, Brazi

Fax: +55.11.36113393

With a copy to Genesys US Legal (see below)
Canada Genesys Laboratories Canada Inc.Ontario, and the applicable Canadian Federal lawThe courts of Ontario, in the courts located in Toronto, OntarioGenesys Laboratories Canada Inc.
Attn: Director Sales Operations
50 Smyth Street, Suite 2000
Saint John, New Brunswick, Canada E2L 0B8

Fax: +1.416.932.3130

With a copy to Genesys US Legal (see below)
Japan Genesys Japan Co. LtdJapanThe courts of Japan, in the courts located in Tokyo, JapanGenesys Japan Co. Ltd
Attn: Senior Director Sales Operations
Uchisaiwaicho Tokyu Building 6F, 1-3-2,
Uchisaiwaicho, Chiyoda-ku, Tokyo
100-0011, Japan

Fax: +81.3.34295731

With a copy to Genesys US Legal (see below)
KoreaGenesys Telecommunications Laboratories LLCThe Republic of Korea.The courts of the Republic of Korea.Attention: Legal Department
Genesys Telecommunications Laboratories LLC
Unit 1702, 517 Yeongdong-daero,
Gangnam-gu, Seoul 06164, Republic of Korea
(Samsung-dong, ASEM Tower)

With a copy to:

Attention: Legal Department
Genesys Laboratories Australasia Pty Ltd
Level 17, 124 Walker Street
North Sydney
New South Wales 2060
Australia
SingaporeGenesys Telecommunications Laboratories Asia Private LimitedThe Republic of SingaporeThe courts of the Republic of SingaporeAttention: Legal Department
Genesys Telecommunications Laboratories Asia Private Limited
Unit 18-02, Republic Plaza, Tower 1
9 Raffles Place, SINGAPORE 048619

With a copy to:

Attention: Legal Department
Genesys Laboratories Australasia Pty Ltd
Level 17, 124 Walker Street
North Sydney
New South Wales 2060
Australia

United StatesGenesys Telecommunications Laboratories, Inc.California, and the applicable United States federal lawThe California state courts In and for San Mateo County, California or, (if there is Federal jurisdiction), the United States District Court for the Northern District of CaliforniaGenesys Telecommunications Laboratories, Inc.
Attn: Legal
2001 Juniper Serra Blvd
Daly City, California 94014

Fax: 650.466.1260

All of the information in this cell is the address for “Genesys US Legal”
Rest of World/OtherGenesys Telecommunications Laboratories B.V.England and WalesThe courts of England and Wales in the courts located in London, EnglandGenesys Telecommunications Laboratories B.V.
Attn: Legal
Gooimeer 6-02, 1411 DD Naarden,
The Netherlands

Fax: +31.35.808030

With a copy to Genesys US Legal (see above)

GENESYS MASTER SUBSCRIPTION AGREEMENT

SUPPLEMENTAL TERMS: PUREENGAGE

In consideration of the mutual promises and obligations in these Supplemental Terms, the sufficiency of which is hereby acknowledged, the parties agree as follows:

1. Invoicing and Payment; Term

Except as otherwise provided in an applicable Services Order the Minimum Monthly Recurring Charge for the first year of the Initial Subscription Term (the “Annual Contract Value”) shall be invoiced in advance on the Scheduled Provisioning Date.  For each subsequent year of the Initial Subscription Term and any Renewal Term, the Annual Contract Value for that year shall be invoiced in advance on each anniversary of the Scheduled Provisioning Date. Deposits may be invoiced in advance.  Overage Fees and other Fees not included in the Annual Contract Value shall be invoiced in arrears.

2. Forecasted Volume

As reasonably requested by Genesys, Customer will provide Genesys with forecasts of Customer’s anticipated future usage of the Genesys Cloud CX 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.

3. Adding and Decreasing Agents

3.1 During the term of any Services Orders, Customer may increase Agents and Features at the committed, discounted rate in such Services Orders by entering into an amendment to the applicable Services Order.  For uncommitted Agents or Features, Customer can increase Agents and any Features during the Subscription Term, subject to payment of the per-unit recurring Fees set forth in the Services Order and an implementation charge.  Aggregate increases of more than ten percent (10%) are subject to a surcharge of fifteen percent (15%) applied to all recurring Fees for then-current Agents and Features. Customer can decrease Agents and Features during the Subscription Term, but decreases shall not alter the terms of any commitment or reduce billable Fees below applicable the Minimum Monthly Recurring Charge. Fees for Agents are based on peak usage in a given month.

3.2 By way of example illustrating the application of Section 3.1, Customer has a Services Order with a commitment for 100 Agents with a monthly per-Agent recurring fee of $100.  During a given month, Customer has 110 Agents log into the Genesys Cloud CX Services. For that month, Genesys would invoice Customer $1,000 in addition to the Minimum Monthly Recurring Charge.  During the next month, Customer has 111 Agents log into the Genesys Cloud CX Services.  For that month, Genesys would invoice Customer $1,115 in addition to the Minimum Monthly Recurring Charge.  During the following month Customer has 99 Agents log into the Genesys Cloud CX Services.  For that month, Genesys would invoice Customer for the Minimum Monthly Recurring Charge. Also by way of example, Customer has a Services Order with a commitment for 50 instances of call recording with a monthly per-Agent recurring fee of $50. During a given month, Customer has 55 Agents using call recording.  For that month, Genesys would invoice Customer $250 in addition to the Minimum Monthly Recurring Charge.  During the next month, Customer has 56 Agents using call recording.  For that month, Genesys would invoice Customer $307.50 in addition to the Minimum Monthly Recurring Charge.  During the following month, Customer has 49 Agents using call recording.  For that month, Genesys would invoice Customer for the Minimum Monthly Recurring Charge.

4. Supervisors

Customer shall maintain a Subscription for Supervisors equivalent to ten percent (10%) of total Agents in outstanding Services Orders. Customer shall authorize its Supervisor(s) to perform general tasks including requesting an increase or reduction of Customer’s access to or receipt of services, and submit requests for Support. Customer shall ensure that each Supervisor has the requisite authority to act on Customer’s behalf.

5. Equipment

Genesys may offer Equipment for resale or renting on a pass-through basis under limited circumstances. All Equipment is provided “AS-IS” without warranty of any kind and is excluded from the scope of any Genesys warranty or indemnification obligations.  In the event Customer rents Equipment, Customer shall pay such Fees as reflected in the Services Order. Customer shall secure and protect rented Equipment at Customer’s location(s). In the event rented Equipment is lost, stolen or damaged, Customer agrees to reimburse Genesys for reasonable replacement costs. Upon termination of the Services Order, Customer will promptly return rented Equipment to Genesys in good condition, reasonable wear and tear excepted. Shipping terms are F.O.B. In the event Customer purchases Equipment from Genesys, Customer shall pay such Fees as reflected in the Services Order and title to such Equipment transfers to Customer upon full payment. Customer will retain purchased Equipment upon termination or expiration of the Agreement. Any other equipment or facilities required by Customer to access the Genesys Cloud CX Services will be provided by and paid for by Customer.

6. Communications Circuits

Customer is responsible for procuring the applicable Communications Circuits for use with Genesys Cloud CX Services.  If set forth in the Services Order, Customer may procure access to Communications Circuits from Genesys subject to payment of associated installation charges (one-time, per circuit), and access fees (monthly).  Communication-related Fees include any fees or charges imposed by third party carriers or service providers to install or initiate service for Customer (e.g., Communications Circuits installation fees).

7. Inbound and Outbound Long Distance Services

Customer is responsible for procuring the applicable communication services, including inbound and outbound voice, data, long distance and external network facilities for use with Genesys Cloud CX Services. If set forth in the Services Order, Genesys will administer Customer’s access to domestic and international inbound and outbound long distance services from one or more telecommunications providers in connection with Customer’s use of the Genesys Cloud CX Services. Except as otherwise set forth in the Services Order, long distance services are billed separately each month based on Customer’s usage, subject to a minimum access charges, plus applicable taxes.

8. Agent Training

Training is available subject to additional fees and expenses. As set forth in the applicable Services Order, Genesys will provide initial user training to Customer’s trainer and administrative Agents.  Classroom or in-person training shall be conducted at a mutually acceptable location and date. Customer will cause one or more of its employees to attend “Train the Trainer” training prior to the Scheduled Provisioning Date. Thereafter, Customer’s trainer will conduct user training for Customer’s Agents that are expected to commence use of the Genesys Cloud CX Services as of the Scheduled Provisioning Date. Following the Scheduled Provisioning Date, Customer’s trainer will provide user training on an ongoing basis to enable Customer’s Agents continued use and understanding of the functionality of the Genesys Cloud CX Services as appropriate for the Agents’ areas of responsibility.

9. Reports

Customer’s use of the Genesys Cloud CX Service may include access to certain reporting tools. Customer personnel that have completed required training can configure reporting tools. Customer may use and distribute Reports for Customer’s internal use only.

10. Workforce Optimization; Business Analytics

As set forth in the Services Order, the Subscription may include access and use of Genesys workforce optimization and business analytics software or tools, or adapters that integrate with third party workforce management tools (“WFO”). Customer is responsible for all decisions made using WFO and for determining whether WFO is sufficient for its needs. WFO Reports, including but not limited to forecasting, reflect estimates using certain categories of available historical data and generalized staffing or other projections which may not reflect or be otherwise suitable for Customer’s specific needs.

11. Support

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 cases 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.

12. Service Level Agreement

12.1. The Genesys Cloud CX Service includes such characteristics as 24×7 systems monitoring and administration. Upon the Scheduled Provisioning Date, the Genesys Cloud CX Service (excluding WFO and Reports) 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 CX Service data centers at the same time.

12.2. In the event that the Genesys Cloud CX Service is available for less than 99.99% of the total applicable time (excluding Scheduled Downtime) due to an outage during which the Genesys Cloud CX Services cannot process calls on behalf of Customer during the applicable month (a “Production Outage”), Customer may request a credit (“Credit”) subject to the Customer’s provision of written notice of such Production Outage 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 Production Outage had occurred, Customer shall be entitled to Credits for a production outage for the identified range as set forth in Section 13 of these Supplemental Terms, based on the number of Agents impacted by the Production Outage.

13. Production Outage Credit

Service Availability Percentage Range-OutagesCredits
≥99.99 %None
<99.99 % ≥ 99.9%1.5% of Minimum Monthly Recurring Charge
<99.9% ≥ 98.9%2.5% of Minimum Monthly Recurring Charge
< 98.9% ≥ 97.0%5% of Minimum Monthly Recurring Charge
< 97.0%10% of Minimum Monthly Recurring Charge

Genesys, however, will not issue Credits for Production Outages caused by: Equipment, Communications Circuits, VOIP Services, and carrier network services (e.g. voice, data, MPLS, Toll Free, DID), including delivery of calls over the internet; 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 CX Service platform availability.

14. Data Security

Genesys will provide Customer with prompt written notice in the event of a Data Security Incident.  In addition to any other obligations the parties may have pursuant to applicable Laws, the parties will each cooperate with each other to investigate the Data Security Incident, make records specific to the Data Security Incident available to the other party to facilitate compliance with applicable Laws, identify the specific Customer Data involved in the Data Security Incident, and take measures to contain and control the Data Security Incident to prevent further harm or intrusion. Customer is responsible for harm caused by Customer’s users or agents, including by individuals who were able to gain access to the Genesys Cloud CX Services or Genesys platform using user names, passwords, and other means of access controlled by Customer. Customer will provide Genesys with immediate notice, as feasible under the circumstances, in the event Customer believes or suspects that user names, passwords, or other means of Customer’s access to the Genesys Cloud CX Services have been compromised.

15. Definitions

As used in this Agreement, a Services Order or SOW, capitalized terms shall have the meanings set forth below:

Agent: Customer’s Users who answer and place calls via a call center.
Communications Circuits: Data and voice communications circuits provided by one or more telecommunications service providers for use with Genesys Cloud CX Services.
Concurrent User: The maximum number of unique User IDs that were logged in to Genesys Cloud CX Services within any one minute interval in a given geographic region (US, EU, AP) for a given Feature (Inbound Voice, Email, Chat, Outbound Voice, Supervisor) during the applicable month.  Usage for Concurrent Users is calculated and billed separately for each geographic region. If, during an applicable month, the same User ID logged in to Genesys Cloud CX Services in multiple geographic regions for the same Feature, that User ID will be counted as a Concurrent User in each of those regions.  Concurrent Users excludes any User IDs used by Genesys for test purposes but includes any User IDs used by Customer for test purposes.
Contract Value: The minimum monetary commitment by Customer as set forth in a Services Order for the Genesys Cloud CX Service.
Data Security Incident: A confirmed intrusion of the Genesys Cloud CX Services technical environment resulting in actual or suspected unauthorized access or misuse of Customer Data.
Enabled Port: A statically configured Port of the Genesys Cloud CX Service that enables a Customer to use the Port, whether or not in use.
Enabled User: The total number of unique User IDs that logged in to Genesys Cloud CX Services in a given geographic region (US, EU, AP) for a given Feature (Inbound Voice, Email, Chat, Outbound Voice, Supervisor) at least once during the applicable month.  Usage for Enabled Users is calculated and billed separately for each geographic region. If, during an applicable month, the same User ID logged in to Genesys Cloud CX Services in multiple geographic regions for the same Feature, that User ID will be counted as an Enabled User in each of those regions during that month.  Enabled Users excludes any User IDs used by Genesys for test purposes but includes any User IDs used by Customer for test purposes.
Equipment: Third party product provided on a pass-through basis without warranty from Genesys.
Feature: those components of the Genesys Cloud CX Services other than Agent seats to which Customer subscribes in a Services Order.
IVR: interactive voice response.
Minimum Monthly Recurring Charge: The minimum monthly recurring Fees set forth in a Services Order, defining the scope of Customer’s purchase commitment that is payable by Customer to Genesys for the duration of the Subscription Term; Fees incurred in any given period in excess of the Minimum Monthly Recurring Charge do not reduce minimums in any other period.
Port: A semi-permanent interactive information interchange, between two or more communicating devices, or between a computer and User (i.e. a session). A Port is set up or established at a certain point in time, and ended or otherwise closed at a later point in time.
Reports: operational and historical reports provided to Customer through a standard set of reporting templates or widgets, configured by Customer personnel, or developed by Genesys pursuant to a statement of work.
Scheduled Provisioning Date: the date Genesys has completed provisioning of the data center tenant supporting Customer’s use of the Genesys Cloud CX Service.  Genesys shall provide Customer with written notice of the Scheduled Provisioning Date.
Supervisor: Customer technical, operational and support personnel authorized to use the administrative functions and features of the Genesys Cloud CX Services, but not otherwise authorized to use the Genesys Cloud CX Services in production.
User: An individual who (i) is authorized by Customer; and, (ii) has been supplied a user identification and password(s) by Customer to access the Genesys Cloud CX Services on Customer’s behalf.  A User may be a Concurrent User or Enabled User.

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