SUPPLEMENTAL TERMS: OUTBOUND COMMUNICATION SERVICES
THESE SUPPLEMENTAL TERMS ARE ENTERED INTO BETWEEN THE PARTIES TO THE LINKING SERVICES ORDER, SUBJECT TO THE TERMS AND CONDITIONS OF THE GENESYS MASTER SUBSCRIPTION AGREEMENT AND THE APPLICABLE ATTACHMENTS THERETO. THE PARTIES FURTHER AGREE THAT EXECUTION OF THESE SUPPLEMENTAL TERMS MAY OCCUR BY ANY MEANS OF SIGNATURE, INCLUDING VIA ELECTRONIC COMMERCE OR TRANSMISSION, FACSIMILE, EMAIL, OR ACKNOWLEDGEMENT THROUGH A WEBPAGE. THESE SUPPLEMENTAL TERMS ARE SUPPLEMENTAL TO, AND ARE NOT IN LIEU OF, ANY TERMS OF THE AGREEMENT. THESE TERMS ARE APPLICABLE TO ALL OUTBOUND COMMUNICATION OR ENGAGEMENT SERVICES.
In consideration of the mutual promises and obligations in these Supplemental Terms, the sufficiency of which is hereby acknowledged, the parties agree as follows:
1.1. Customer is responsible for determining whether the outbound communication service capabilities of the Genesys Cloud Services are suitable for Customer’s specific needs. Customer determines the manner and means of transmitting outbound communications for purposes including marketing, customer care, and collections using the Genesys Cloud Services, including live agent calling, automated voice messages, IVR, email, text, MMS, web, and push notifications.
1.2. Customer is responsible for the Content transmitted, collected or processed in connection with Campaigns. Customer will develop Campaigns using Genesys tools subject to Customer’s management and oversight. If Customer retains Genesys to create and execute Campaigns on Customer’s behalf, Genesys will develop draft campaign communication. Customer will supervise Genesys’ work, review and revise draft as appropriate for Customer’s needs, and take responsibility for the final message copy.
1.3. Customer is responsible for obtaining, documenting and managing all required consents from all Recipients and permits associated with use of the services in accordance with applicable Law. Customer is responsible for all Recipient Numbers that are used in connection with Customer’s use of the Genesys Cloud Services. Customer is also responsible for complying with all restrictions imposed on the means and manner of transmitting communications to Recipients. Without limiting the foregoing, Customer is responsible for: (i) originating (or causing the origination, via Recipient opt-in requests, of) its desired Messages for Initiation by the Genesys Cloud Services; and (ii) ensuring that Recipient Numbers are the correct Recipient Numbers for the intended Recipient. Recipient Numbers do not include: (i) emergency lines, including those of any hospital, medical center, health care facility, poison control center, fire protection agency, or law enforcement agency, (ii) any number assigned to a paging service, cellular telephone service, or other wireless service, unless appropriate consents to transmit to such numbers have been obtained from the intended Recipient, and (iii) for calls routed using automated dialing, any number to which automated dialing or prerecorded message calls are prohibited under applicable Laws.
1.4. Customer shall: (i) establish and provide the time(s), date(s), and delivery schedule(s) for Messages, (ii) ensuring that (A) no Campaign transmits Telemarketing Messages before 8 a.m. or after 9 p.m. local time at the Recipient’s location, and (B) no Messages, including Telemarketing Messages, are transmitted outside of hours allowable under applicable Laws.
1.5. Genesys will use commercially reasonable efforts to transmit Customer’s Messages as directed by Customer. Customer acknowledges that the Genesys Cloud Services are limited to the transmission of Messages and that, to reach an intended Recipient, such Message will be relayed via and retransmitted by one or more Providers. All Provider interactions are provided “AS IS” and without warranty of any kind. Genesys does not guarantee that Messages, once transmitted by the Genesys Cloud Services, will be received, delivered, or opened by Recipients. Customer acknowledges and consents to Genesys’ provision of Messages and other data to Providers and understands that Providers may reformat the Message to conform and adapt to Provider requirements and device requirements.
1.6. Genesys Cloud Services are designed to facilitate compliance with certain domestic and international regulatory obligations and applicable Laws related to outbound dialing and other means of outbound communication through the use of features such as checking Recipient Numbers against Do-Not-Call lists, List Profile Report, and Phone Ownership Verification (each such feature, if enabled by Customer for the applicable Message, a “Compliance Instruction”). Compliance-related features are provided “AS IS,” without representation or warranty of any kind regarding the accuracy of such data or, without limitation, are sufficient to meet the obligations imposed by applicable Laws, including but not limited to the TCPA, CAN-SPAM, and FDCPA in the US, the EC Directive in the UK, and similar legislation, rules and protocols in other jurisdictions. Notwithstanding the foregoing features of the Genesys Cloud Services, Customer is responsible for determining the Laws applicable to Customer’s use of the Genesys Cloud Services and for determining whether its use of the Genesys Cloud Services remains compliant with such Laws. Customer is also responsible for determining and implementing the applicable Compliance Instruction in accordance with applicable Laws.
1.7. With respect to Compliance Instructions related to a Recipient’s request to opt-out of receiving text Messages, Genesys will confirm an opt-out with one subsequent automatically-enabled Message only if a Recipient sends an explicit and unambiguous opt-out request directly to the Genesys Cloud Services via the same Recipient Number, and only in the event such request is transmitted by such Recipient’s mobile handset. Unless requested by Customer, Genesys will not send an opt-out confirmation in respect of any other Recipient opt-out request (e.g. an ambiguous text message, or an opt-out request initiated online, by email, by chat, by voice call, or letter addressed to a street address). Customer accepts sole responsibility for determining whether confirmation of an opt-out request is required by Law and for instructing Genesys to send out such Messages if so required. Customer is also solely responsible for determining whether the Genesys-enabled opt-out mechanism is sufficient for Customer’s needs or whether such mechanism is sufficient to comply with applicable Law.
2.1. Short Codes or Text-Enabled Toll-Free Numbers are used for Customer Messages transmitted within the U.S. and Canada. Customer may provide Short Codes or Toll-Free Numbers for use with the Genesys Cloud Services or may request Genesys to lease Short Codes or Toll-Free Numbers on Customer’s behalf. Leasing and provisioning a Short Code takes at least 45 days while Text-Enabled Toll-Free Numbers takes approximately 14 days, and is dependent on receipt of information from Customer and coordination with Providers. Delays may occur in the provisioning process if Customer does not respond quickly to requests for information and for payment. The provisioning timeframe is also dependent upon the responsiveness of the Carriers, and Genesys is not liable for delays from specific Carriers due to Carriers unresponsiveness. Customer takes responsibility for all information Customer provides in connection with leasing Short Codes or Text-Enabled Toll-Free Numbers. Customer acknowledges that its use of a Short Code or Text-Enabled Toll-Free Number is limited to the duration and purpose as set forth in the Short Code or Text-Enabled Toll-Free Number lease application. Customer will provide complete and accurate information in connection with leasing of Short Codes or Text-Enabled Toll-Free Numbers.
2.2. Long Codes, Short Codes, or Alpha Sender IDs may be used for Customer Messages transmitted outside of the U.S. and Canada.
2.3. Customer may lease a Random Short Code or Vanity Short Code, either of which may be a Shared Short Code or Dedicated Short Code. Customer expressly acknowledges that Shared Short Codes may be leased to many other companies and thus are subject to a higher risk of misrouted communications (e.g., the Common Short Code Administration may lease a short code such as “24242” to multiple companies). Customer’s use of Shared Short Codes is at Customer’s sole risk. Genesys reserves the right to determine whether to support Shared Short Codes.
2.4. Customer understands that Providers impose policies on the use of wireless data services, wireless carrier equipment, and application provisioning services to transmit Messages. Customer shall adhere to the latest version of the Guidelines published by the CTIA, including the CTIA Short Code Monitoring Handbook. If Customer or Customer’s Subscribers violate any such Handbook, then Genesys and/or the Providers reserve the right to immediately cutoff all (or associated) Message activity.
Customer shall ensure that any Sensitive Information transmitted or stored through use of the Genesys Cloud Services shall be done only in circumstances where the Sensitive Information is captured within an encrypted field. To the extent reasonably within Customer’s control, Customer shall exclude Sensitive Information from reporting and analytics features. Customer acknowledges that speech recognition and audio recording of Sensitive Numbers and PII (e.g. credit card, social security numbers) is supported only if the content is in an encrypted format and thus may not be available in all circumstances. To capture numerical Sensitive Information, Customer shall ensure that all callers enter such Sensitive Information via the Genesys Cloud Services only by pressing phone keys (i.e., dual-tone multi-frequency signaling or DTMF).
4.1. Fees set forth in Services Orders are subject to Customer’s fulfillment of the Initial Subscription Term. Except as otherwise provided in an applicable Services Order, Customer is obligated to meet a minimum purchase commitment equal to the total monthly recurring fees times the number of months that comprise the Initial Subscription Term. If Customer is subject to meeting a minimum purchase commitment, pricing for the applicable Genesys Cloud Services will remain fixed for the duration of the Initial Subscription Term. Except as otherwise stated in a Services Order, usage of more than ten percent (10%) above a minimum purchase commitment is subject to a surcharge of fifteen percent (15%) applied to all then-current Fees. If Customer is not subject to a minimum purchase commitment, pricing is subject to change upon 30 days written notice from Genesys. Fees exclude, and Customer is responsible for, all sales, use and other taxes.
4.2. As reasonably requested by Genesys, Customer will provide Genesys with forecasts of Customer’s anticipated future usage of the Genesys Cloud Services. Customer’s forecast is for informational purposes to assist Genesys with capacity planning and service management; forecasts do not alter the terms of the Subscription.
4.3. Customer may cancel services at any time on 60 days’ prior written notice, provided Customer pays for all services utilized through the date of cancellation. Customers that have made a minimum purchase commitment, whether based on volume or spend, will be responsible for meeting their commitment, regardless of termination.
4.4. Fees will be determined in accordance with the fee schedule provided and invoiced on a calendar month basis. At the beginning of each calendar month, Customer’s monthly volume will be restarted; minutes or messages (if applicable) will not roll over.
4.5. Data uploaded and stored by the Genesys Service greater than 14 days with no calling activity will be deleted from the Genesys system automatically. For disaster recovery/business continuity applications, pricing for data recovery is available upon written request. Genesys will make production data available for 15 months on-line.
4.6. Professional Services are billed separately in accordance with the client management fee structure or such other rates as set forth in a mutually acceptable Statement of Work.
4.7. A private network requires Customer to provide network connection into Genesys data center location. Customer provides network switch and firewall.
4.8. Voice Messaging Pricing Notes
4.9. Text Messaging Pricing Notes
4.10. Email Pricing Notes
5.1. Customer will submit requests for Support subject to the processes set forth in the Support User Guide. Prior to reporting an issue, Customer shall investigate the issue and make reasonable use of the self-help guides and information posted on the Customer Care Portal. Customer personnel submitting tickets must be knowledgeable and have access to information to facilitate resolution of reported issues. Genesys is not responsible for resolving issues that are external to the Genesys Cloud Services or cannot be reasonably 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.
5.2. The Genesys Cloud Service includes such characteristics as 24×7 systems monitoring and administration. Upon completion of Provisioning, the Genesys Cloud Service will be available 24x7x365 except for downtime in respect of which Customer has received at least 3 days’ notice and which downtime will not exceed five (5) hours per month (“Scheduled Downtime”). Genesys will use commercially reasonable efforts to: (i) provide Scheduled Downtime during off-peak business hours (10pm – 5am eastern); and (ii) avoid Scheduled Downtime that would impact all Genesys Cloud Service data centers at the same time. In the event that the Genesys Cloud Service is available for less than 99.9% of the total applicable time (excluding Scheduled Downtime) due to a “production outage” where the platform cannot process Messages on behalf of Customer for the applicable month, Customer may request a credit subject to the Customer’s provision of written notice of such unavailability within thirty (30) days after the end of the applicable month. Such notice must contain a description of service incident including the date and approximate beginning and end time of the production outage service incident for Genesys’ verification. Subject to Genesys’ verification that the service incident had occurred and that Customer’s ability to transmit Messages was impaired by such incident, Customer shall be entitled to recompense in the form of Credits for a production outage for the identified range as follows:
|Service Availability Percentage Range-Outages||Credits|
|< 99.9% ≥ 98.9%||1.5% of monthly Minimum Period Fees|
|< 98.9% ≥ 97.9%||2.5% of monthly Minimum Period Fees|
|< 97.9% ≥ 97.0%||5% of monthly Minimum Period Fees|
|< 97.0%||10% of monthly Minimum Period Fees|
5.3. Genesys, however, will not issue Credits for service incidents caused by: (i) any services, equipment, networks, or the like over which Genesys has no control or does not manage, including but not limited to Customer-provided voice or data networks; (ii) Customer’s software, services, computers, facilities, power failures, or 3rd party integrations; (iii) Customer or users, including modifications made by Customer, User or another third party to the Customer applications, Services, or any features or functionality thereof; (iv) actions or inactions required for compliance with Laws; (v) Internet connectivity or failures; and (vi) 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 Services availability.
Customer agrees to Indemnify Genesys with respect to: (i) the Message (including but not limited to its content, transmission, timing, Recipient (including in respect of opt-outs), recording, and retention); and (ii) Customer’s use of the Genesys Cloud Services in violation of applicable Laws (each, a “Covered Claim”), except to the extent a Covered Claim arises as a result of Genesys’ gross negligence or intentional misconduct or a failure of the Genesys Cloud Service to correctly execute Compliance Instructions.
Capitalized terms in this Supplemental Terms and in the Services Order shall have the meanings set forth below and as defined elsewhere in the SOW:
7.1. Alpha-Sender IDs: used for one-way text messages in certain countries, Alpha Sender IDs transmit SMS messages with the company or brand name as the sender, instead of a phone number or short code. Up to 11 numbers and letters to create the “From” ID.
7.2. Campaign: a specific Message or set of Messages communicated to Recipients using the Genesys Cloud Services.
7.3. CAN-SPAM: Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003.
7.4. Communications Circuits: Data and voice communications circuits described in the applicable User Guide provided by one or more telecommunications service providers, via Genesys, for use by Customer that may be made only in connection with Customer’s use of the Genesys Cloud Service. Communications Circuits shall not include any other voice, data, long distance services, or other external network facilities required to enable Customer to use the Genesys Cloud Service in the manner intended; such other facilities will be provided by and paid for by Customer.
7.5. FDCPA: Fair Debt Collection Practices Act.
7.6. Free-to-End-User (or FTEU) Messages: Mobile-originated and mobile-terminated Messages sent and received that are free of charge to the End User.
7.7. Initiate(ion): The service provided to cause Messages to be transmitted by the Genesys Cloud Service. For clarity, Initiation of Messages may not result in a Recipient’s receipt of the Message. For example, with respect to SMS and MMS Messages transmitted using Short Codes, the Genesys Cloud Services Initiates the Messages to Provider(s), but the Genesys Cloud Services do not carry the Message to a Recipient. From the point of completion of Initiation, the remaining transmission is provided by Providers.
7.8. List Profile Report: A feature related to the Genesys Cloud Services. The List Profile Report is designed to provide information about each device (phone number or email address) and/or the Provider information contained within a list on the Genesys Cloud Services. The report provides a record for each device contained in each contact in the list and the Provider of that device.
7.9. Long Code: A 10-digit, toll or toll-free number that can be provided by Customer or a Provider via Genesys. Typically used in the context of sending text messages.
7.10. Messages: The data, text, audio, music, sound recordings, ring tones, graphics, photographs, audio-visual works, artwork, URLs, and other materials in electronic form, whether provided by Customer or a third party retained by Customer or acting on Customer’s behalf, that Customer may transmit to a Recipient through the voice, text Messages, multi-media Message, social media, webchat, web-callback, email, push, or other web-based channels.
7.11. Providers: Paging and mobile network carriers and other suppliers that provide message routing for the telephone industry and other services.
7.12. Recipient: The person or entity to which Customer may direct the Initiation of a Message.
7.13. Recipient Numbers: The telephone numbers to and email addresses at which Customer may cause the Initiation of a Message.
7.14. Short Codes: Short Codes are special telephone numbers, shorter than full telephone numbers, used in connection with SMS and MMS Messages. A Short Code may be specific to one mobile operator or “common” and thus supported by major mobile operators within a specific geography. The Common Short Code Administration is responsible for leasing common Short Codes and establishing the terms for use with U.S.-based mobile telephone numbers. Short Codes may be comprised of random numbers or specific, easier to communicate numbers (“Random Short Codes” or “Vanity Short Codes”, respectively). Common Short Codes may be shared by many companies or dedicated for a company’s exclusive use during the leasing term (“Shared Short Codes” or “Dedicated Short Codes”, respectively).
7.15. TCPA: Telephone Consumer Protection Act.
7.16. Telemarketing Message: A Message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services. Except as specifically identified otherwise, the term Telemarketing Message also includes solicitation for charitable contributions.
7.17 Text-Enabled Toll-Free Number (TETFN): A 10-digit phone number with a toll-free prefix (e.g. 800, 844, 866, 888) which is used to send and receive text messages. TETFNs may be used for sales, marketing, service, transactional, and informational messaging. Text messaging capabilities may be added to a Customer’s existing toll-free voice phone number, or the TETFN may be provisioned exclusively for text messaging. This service is available in the U.S., Canada, and some Caribbean countries. The use of a TETFN incur standard rate message charges for end users and are not free-to-end-user.