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
This Master Subscription Agreement (“Agreement”) is entered into by the parties to the Services Order as of the date both parties have executed the Services Order (the “Effective Date”). By executing a Services Order, the parties agree to be bound by the applicable Service Orders, this Agreement and any other separately executed Services Orders or SOWs incorporating this Agreement. Capitalized terms shall have the meanings defined in the Agreement. In consideration of the mutual promises and obligations in the Agreement, the sufficiency of which is hereby acknowledged, the parties agree as follows.
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 Service during the Subscription Term.
1.2. Genesys will provide Support as described in the Genesys PureConnect Cloud Services Support Policy, attached to this Agreement as Exhibit A.
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.
2. INVOICING AND PAYMENT
2.1. Payments will be due within thirty (30) days of the date of the applicable invoice unless otherwise specified in a Services Order.
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.
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.
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 Services, or portion thereof, or reject or cancel the transmission of any information through the Genesys Cloud Service based upon (i) reasonable belief that the use of the Genesys Cloud 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 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 Service. Customer’s purchase of the Genesys Cloud 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 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 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.
5.1. 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 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 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).
7.1. 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 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 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 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 Services are used, or who use the Genesys Cloud Services, of the non-availability of 911 or other emergency dialing.
9.5. If the Genesys Cloud 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. Customer shall not modify, disable, or circumvent the Recording encryption feature within the Genesys Cloud Services and shall otherwise ensure that it will use the Genesys Cloud Services in compliance with the encryption feature.
10. CUSTOMER DATA
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 Services.
10.1.4. If Customer, End Users or Persons provide payment card information to the Services, Customer retains responsibility for its compliance with all applicable standards, including the Payment Card Industry Data Security Standards (“PCI-DSS”). The Genesys PureConnect Cloud Service is PCI compliant, provided that Customer purchases the Premium Services described in Exhibit B, Section 10. Customer agrees to not send PCI data without purchasing the applicable Premium Services.
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.
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.
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 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 Service, (ii) modify or replace or modify the Genesys Cloud 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 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.
12.1. 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 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 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.
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 Service by Customer or Users; and (b) the non-anonymized content of any reports generated by the Genesys Cloud Service regarding Customer’s use of the Genesys Cloud 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 Service in combination with any non-Genesys equipment, software, services, processes, data or materials; (ii) Customer’s non-compliance with this Agreement or Documentation; (iii) use of the Genesys Cloud 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 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 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 Service(s): The individual services and use of features and functionality of Genesys proprietary software and supporting facilities, all as further described in this Agreement and the Documentation, that are ordered by Customer by a Services Order. The term “Genesys Cloud 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 Service.
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.
Security Features: The features and functionality associated with the Genesys Cloud 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 Service, Professional Services, Support and all related services provided under the Agreement.
Service Level Agreement: Genesys’ agreement to perform the Genesys Cloud 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 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 Service, all as described in the applicable Services Order. Subscriptions exclude services and expenses associated with decommissioning Customer’s use of the Genesys Cloud 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 Service, subject to the terms and policies set forth in Exhibit A of this 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 Service.
Table 1. Governing Law, Jurisdiction, Notices.