MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT

BY EXECUTING A SERVICE ORDER THAT INCORPORATES THESE THIS AGREEMENT, CUSTOMER AGREES TO FOLLOW AND BE BOUND BY THESE TERMS AND CONDITIONS FOR THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT.  THE PERSON ENTERING INTO THIS AGREEMENT ON BEHALF OF CUSTOMER CONFIRMS THAT HE OR SHE HAS READ AND UNDERSTANDS THE TERMS AND CONDITIONS OF THIS AGREEMENT AND HAS THE AUTHORITY TO BIND CUSTOMER AND ITS RELATED PARTIES HERETO.

MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT

***CONFIDENTIAL***

1. Preamble and Recitals.

1.1. The Effective Date of this Master Software License and Services Agreement (“Agreement”) is the effective date of the Services Order to which this Agreement is linked.

1.2. The provisions of this Agreement shall apply to all Services Orders (“Orders”) executed by Customer with respect to Affiliate(s) and Site(s) for Software, Maintenance and Support and Services and all Statements of Work executed by the parties under this Agreement.

1.3. Customer appoints Genesys as its agent to procure the Third Party Products. Genesys will procure the Third Party Products and arrange with the relevant Third Party Supplier(s) for delivery to Customer’s facility, subject to Third Party Suppliers’ standard commercial terms. Genesys provides Third Party Products on a pass-through basis, AS-IS, and without warranty of any kind. Third Party Products are excluded from the scope of the Genesys’ Maintenance and Support offerings for Genesys Licensed Software.

2. Definitions.

2.1. In addition to the terms defined elsewhere in the Agreement, capitalized terms shall have the meaning set forth in Schedule E of this Relationship Agreement, which is entitled “Definitions”.

3. Software.

3.1. Grant of License

3.1.1. Subject to the terms of this Agreement, including any limitations contained in the applicable Order, Genesys hereby grants to Customer and Customer accepts a non-exclusive, non-transferable, revocable license, without right to sublicense, to use the Software products in the quantities and License Unit Types described in an Order within the United States and Canada in accordance with the applicable Documentation and License Unit Type. The Software is provided as a license and not a sale and Customer’s right to use the Software and Documentation shall be limited to those expressly granted in this Agreement. Without limiting the generality of the foregoing, Customer has no right to receive any source code for Software and no implied licenses are granted hereunder. Customer is hereby granted a license to use the Creations solely in connection with, and under the same provisions as, its use of the Software.

3.1.2. Evaluation Software ordered by Customer is licensed for a term of ninety (90) days from delivery solely for Customer’s nonproduction usage for purposes of internal evaluation and demonstration. Evaluation Software is provided “AS-IS” and without any warranty or indemnification of any kind including any set forth in this section or elsewhere in this Agreement.

3.1.3. All Licenses granted in this section are granted separately from any Services Customer may receive from Genesys, and does not require Customer to purchase such Services.

3.1.4. If Customer requires additional Software, then Customer must contact Genesys or Reseller to obtain Software and pay, in advance, all fees, including Maintenance and Support unless otherwise specified in a valid Agreement, Amendment or Addendum

3.2. Back-up copies. Customer is authorized to make a reasonable number of copies of the Software for archival and cold back up purposes.

3.3. Restrictions and Compliance. Customer shall not, and shall not permit others to (i) make unauthorized copies, modify, reverse-engineer, distribute, sublicense, decompile or disassemble any Materials or create any derivative works thereof; (ii) create any derivative works, functionally equivalent works, or translations based upon the Materials; (iii) access or use the Materials in order to compete with Genesys or to assist someone else to compete with Genesys; (iv) use the Materials for any purposes in any manner directly or indirectly in violation of any law, including Customer-Specific Laws, regulation, mandate or court order or in the aid of any unlawful act or undertaking; (v) take any action that jeopardizes Genesys’ rights or the rights of its Third Party Suppliers, licensors or partners in any Materials; (vi) use the Materials in a manner that is defamatory, harassing, infringing or otherwise causes damage or injury to any person or property; (vii) transmit viruses or other deleterious code; or (viii) damage, disable or impair the Materials or any other party’s use of Genesys’ or its Third Party Suppliers’, licensors’, or partners’ products or services. Customer may not encumber, transfer, sell, time share, assign, rent, lease any of its rights granted in this Agreement.  Customer represents and warrants that (a) neither Customer, any Affiliate, or any user are on any government-issued list of restricted persons or entities including the Commerce Department Entity List, Denied Persons List or Unverified List, the Treasury Department Specially Designated Nationals and Blocked Persons List, and the State Department Debarred Parties List; and (b) Customer will not export or re-export, directly or indirectly, any Materials of any kind provided by Genesys to any countries outside the United States except as permitted under the U.S. Commerce Department’s Export Administration Regulations.

3.4. Documentation and License Unit Types. By downloading, installing, or copying the Software or any update, fix or patch thereto, Customer accepts the then current Documentation and Licensed Unit Types that govern the use of the product.

3.5. Additional Software. Order issuance and payment of all associated License Fees is required prior to the usage of any additional quantities and types of Software beyond the scope of the Software previously licensed hereunder.

3.6. Ownership of Software and related intellectual property. As between Genesys and Customer, all intellectual property rights in the Materials are and will remain the exclusive property of Genesys or its Third Party Suppliers, licensors or partners as applicable. Genesys and its licensors, Third Party Suppliers, or partners retain full ownership of all intellectual property rights in the Materials and in all copies, modifications, adaptations, enhancements, modifications and Derivative Works (including any improvement or development) thereof.

3.7. Feedback. Customer hereby assigns ownership of all intellectual property rights in any report, feedback or other information concerning the Software provided by Customer to Genesys hereunder.

3.8. Third Party Technology. Except as otherwise required by law or by underlying third party license agreements, any third party technology provided as part of a Software product is limited to use only with such product.

3.9. Delivery and Acceptance. Genesys will deliver Software pursuant to Orders placed under this Agreement. In the case of electronic delivery, delivery shall occur when the Software has been uploaded onto the FTP site and Customer is provided all necessary passwords for download from such site. In the case of physical shipment, delivery shall be f.o.b. shipping point. Acceptance shall be deemed to occur upon delivery of the Software. With respect to Third Party Equipment provided hereunder, delivery will be applicable f.o.b. Third Party Supplier’s or Genesys’ point of origin. Acceptance of the Third Party Products shall be upon delivery to the first carrier.

3.10. Software Warranty.  Subject to the Exclusions, Genesys warrants to Customer that the Software as delivered, unless subject to accident, abuse, or unauthorized repair, modification or enhancement, will substantially conform to the Documentation for a warranty period of ninety (90) days from delivery (the “Warranty Period”). If an actual noncompliance with this warranty is reported by Customer to Genesys during the Warranty Period, Genesys will at its reasonable election either (i) repair or replace the Software such that it substantially conforms to the Documentation; or (ii) terminate the license and refund the license fees paid for such non-compliant Software. Any refund provided hereunder shall be deemed a revocation of the license granted for such refunded Software. Customer will immediately return to Genesys or destroy all copies of the refunded Software in Customer’s possession or control. Customer acknowledges that the Software functions solely as a conduit for transmission and storage of data. Genesys is not responsible for and will have no liability for the content, accuracy, completeness, timeliness, security, integrity, utility, or applicability of the data stored or transmitted using the Software.

3.11. Media Warranty. If Genesys delivers the Software on tangible media, Genesys warrants that such media will not be defective under normal use, for a period of ninety (90) days from delivery. Genesys will replace any defective media returned to it within the warranty period at no charge to Customer.

3.12. Disabling Code. Genesys will implement measures consistent in all material respects with industry practices to ensure that the Software as distributed by Genesys does not contain any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design that could erase data or programming or otherwise cause the Software to become inoperable or incapable of being used in the full manner for which it was designed and created. The use of license keys and the occurrence of “pop-up” reminders to register the Software on an annual basis will not constitute a breach of the foregoing warranty.

3.13. Evaluation Software Warranty Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN CONTAINED, EVALUATION SOFTWARE IS PROVIDED “AS-IS” AND WITHOUT WARRANTY OF ANY KIND INCLUDING ANY SET FORTH IN THIS SECTION.

3.14. The relevant Third Party Supplier shall be responsible for all warranties, indemnities and other liabilities involving or related to the Third Party Products. Genesys will use reasonable commercial efforts to enforce Customer’s warranties, indemnities and other remedies provided by the Third Party Suppliers.

4. Maintenance and Support.

4.1. Maintenance and Support Services. Maintenance and Support shall be purchased and provided as set forth in Schedule A. Customer may purchase additional Maintenance and Support Services from Genesys as may be agreed upon by the parties.

4.2. Maintenance and Support Services Warranty. Genesys warrants that it shall provide Maintenance and Support and Services in a manner prevailing in the industry using qualified personnel. Customer’s sole and exclusive remedy for Genesys’ breach of this warranty is Genesys will re-perform the defective service.

4.3. Operating Environment. Customer agrees to provide a suitable installation and operating environment with any facilities or environmental requirements reasonably prescribed by Genesys or applicable Third Party Suppliers. Customer warrants to Genesys that Customer has obtained valid licenses or other legal rights to use, and to permit Genesys to use on Customer’s behalf, all equipment, software and documentation not provided by Genesys that Genesys is asked to install, maintain, access or use while performing the Services.

4.4. If Genesys provides Services at a Customer site, Customer will ensure that such location will be safe for occupation and use by Genesys’ employees and contractors. Customer will indemnify Genesys and Genesys’ employees and contractors for any damage to person or property incurred by them as a result of any unsafe condition at a Customer site. Genesys’ employees and contractors will comply with all reasonable Customer safety and security policies communicated to Genesys by Customer.

4.5. Except as directed by Genesys, and provided Customer has paid for a current annual support plan, Customer shall contact Genesys for Genesys Third Party Product Support. Genesys will coordinate and case-manage maintenance support for the Third Party Products in conformance with the Genesys Care Program Guide. Genesys Third Party Support consists of acting as the first point of contact to help resolve issues involving the Third Party Product. Genesys will (i) retain ownership of the communications with Customer and Third Party Supplier, and (ii) consult and provide additional assistance to the Third Party Supplier until the issue is resolved. Third Party software updates, bug fixes and Equipment replacements are provided by the Third Party Supplier in accordance such Third Party Supplier’s maintenance and support terms, as applicable and will be case-managed under Genesys’ Third Party Support. If Equipment defects require component replacement, the Third Party Supplier will provide the Equipment replacements directly to Customer and Genesys will coordinate the return and replacement of the Equipment. If Equipment related activities require onsite presence, the Third Party Supplier will be responsible for performing these onsite activities.

4.6.    Except for Level 1 support provided by Genesys, the relevant Third Party Supplier shall be responsible for all maintenance and support, involving or related to the Third Party Products.

5. Professional Services.

5.1. Statements of Work. Genesys will provide the Professional Services, including any Deliverables, described in statements of work executed by the parties.

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

5.3. Resources. Customer shall make available in a timely manner at no charge to Genesys all data, facilities, data, equipment or other resources reasonably required by Genesys to perform the Professional Services.

5.4. Fees. Customer shall pay Genesys for the Professional Services in accordance with the fees set forth in the Statement of Work. Customer shall reimburse all reasonable travel and other expenses incurred by Genesys in performance of the Professional Services. Genesys shall invoice Customer on a monthly basis as Professional Services are performed and expenses are incurred.

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

5.6. Change Orders. If Customer desires to change an executed SOW, Genesys will consider Customer’s request and if acceptable to Genesys, the parties will execute a revised SOW or a Change Order. Customer understands that revisions to an SOW may require payment of additional fees and may require changes to the work schedule. Any such additional fees or schedule changes will be mutually agreed and identified in the revised SOW or Change Order.

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

5.8. Warranty. Genesys warrants that it shall provide Professional Services in a professional and workpersonlike manner. Customer’s sole and exclusive remedy for Genesys’ breach of this warranty is Genesys will at its option, (i) use commercially reasonable efforts to re-perform the defective Professional Services; or (ii) provide a refund to customer for the non-conforming Professional Services. In the event of a refund, Customer’s license to Professional Services issued in connection with Section 3 will immediately terminate.

5.9. Support of Deliverables. Custom Application Support. Support of Deliverables is not provided as part of Software Maintenance and Support.  Custom Application Support, as defined in Schedule D, may be provided for certain Creations for an additional fee and as described in an additional statement of work signed by the parties.

6. Payment and Taxes.

6.1. Payments. Customer shall pay all fees within thirty (30) days of delivery of the invoice date. All payments hereunder shall be made in United States dollars.

6.2. Sales and Other Taxes. Customer agrees to pay all sales tax, use tax, value added tax, goods and services tax, transaction tax or similar excise tax due to any taxing authority with respect to transactions resulting from this Agreement. If Genesys is required by any taxing authority to collect and remit any such taxes to a taxing authority, Genesys shall invoice any such taxes to Customer and Customer shall pay Genesys for such taxes.

6.3. Withholding Taxes. If Customer is required by any competent taxing authority to withhold taxes from payments made to Genesys hereunder, then Customer shall deduct such withholding tax from the payment to Genesys and in such event shall pay such tax to the taxing authority on behalf of Genesys. Customer shall obtain for and provide to Genesys, within ninety (90) days after submitting such withholding tax, the original tax certificate or receipt issued by the taxing authority evidencing such tax payment and sufficient to allow Genesys to apply for an appropriate tax credit. In the event Customer does not provide the original tax certificate or receipt issued by the taxing authority, Customer shall be liable for and shall reimburse Genesys for the amounts deducted as withholding taxes from the payment. The parties agree to take all reasonable steps to reduce or eliminate withholding taxes under applicable law including income tax treaties.

6.4. Late Fees. Without prejudice to any other rights of Genesys under this Agreement, fees or refund of expenses not received by Genesys by the date due shall be subject to a charge of one and a half percent (1½%) per month, or the maximum charge permitted by law, whichever is less. Further payment method instructions may be specified in Customer’s invoice.

6.5. Security Interest. Customer hereby grants Genesys a purchase money security interest in all Equipment under Customer’s ownership or control to secure the payment for such Equipment. Customer agrees that Genesys will have the right to file or record this Agreement and such financing statements and other appropriate documents pursuant to applicable law to evidence Genesys’ security interest in the Equipment. At Genesys’ request, Customer will join Genesys in executing such documents, or upon failure of Customer to promptly do so, Genesys may execute the documents as Customer and in Customer’s name. Genesys will promptly release its security interest upon Customer’s full payment of its obligations relating to the Equipment.

7. Equipment Sale.

7.1. If Equipment is listed on an Order then, subject to the terms of this Agreement including any limitations contained in such Order, Genesys sells such Equipment to Customer. Title and risk of loss or damage to the Equipment will pass to Customer upon shipment of the Equipment to Customer.  Customer will inspect the Equipment immediately upon receipt and will notify Genesys within two (2) business days if there is evidence of damage during shipping. Genesys will file any claim against the carrier and Customer will reasonably cooperate with Genesys in making such filing and otherwise rectifying the matter. The terms and conditions governing the use of the operating software or other software included with the Equipment will be the terms of the shrink-wrap, click-wrap or other third party license delivered with the Equipment and not the terms of this Agreement. It is Customer’s responsibility to prepare and maintain the location where the Equipment is installed so as to conform to any utility, climate control, wiring, networking and communication interface specifications, to perform all regular maintenance that Genesys or the Equipment manufacturers recommend or require, and to operate the Equipment on appropriate utility service with a sufficient uninterruptible power supply.

8. Termination.

8.1. Term. This Agreement commences on the Effective Date and continues until terminated by Genesys or Customer as provided herein.  Genesys or Customer may terminate this Agreement immediately upon notice to the other party if the other party ceases to do business as a going concern, makes an assignment for the benefit of creditors, admits in writing its inability to pay debts as they become due, files a petition in bankruptcy or appoints a receiver, or acquiesces in the appointment of a receiver or trustee, or liquidator. In such event, all amounts due, including work performed up to the termination date, will become immediately due and payable without notice or demand. Genesys or Customer may terminate this Agreement upon notice and thirty (30) days opportunity to cure (if susceptible to cure) if the other party breaches a material term of this Agreement.

8.2. Effect of Termination. Upon termination of this Agreement for any reason:  (i) all of Customer’s rights and license to use the Materials will immediately terminate; (ii) within five (5) business days after termination, Customer will return to Genesys or purge all copies of the Materials and deliver to Genesys an affidavit signed by an officer, owner or managing partner of Customer confirming that these actions have been completed.

8.3. Survival. All terms of this Agreement which, by their nature, are intended to survive termination of this Agreement will survive termination, including without limitation, all payment obligations, use restrictions, ownership terms, confidentiality obligations, disclaimers and limitations of liability.

9. Disclaimer and Limitation of Liability.

9.1. DISCLAIMER. THE WARRANTY REMEDIES SET FORTH IN THIS AGREEMENT ARE CUSTOMER’S EXCLUSIVE REMEDY AND GENESYS’ SOLE LIABILITY WITH RESPECT TO THE APPLICABLE WARRANTIES SET FORTH HEREIN. ALL MATERIALS AND SERVICES OF ANY KIND ARE PROVIDED “AS IS”. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT, GENESYS AND ITS THIRD PARTY SUPPLIERS, BUSINESSS PARTNERS AND LICENSORS, MAKE NO WARRANTIES, WHETHER EXPRESSED, IMPLIED OR STATUTORY WITH RESPECT TO ANY MATERIALS AND SERVICES OF ANY KIND AND GENESYS AND ITS THIRD PARTY SUPPLIERS, BUSINESS PARNERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS OR OTHERWISE (INCLUDING ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY, QUIET ENJOYMENT, OR ACCURACY).  WITHOUT LIMITING THE FOREGOING, GENESYS DOES NOT WARRANT THAT USE OF ANY MATERIALS OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFECTS IN ANY MATERIALS OR SERVICES WILL BE CORRECTED.  CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE MATERIALS OR SERVICES NECESSARY TO ACHIEVE CUSTOMER’S INTENDED RESULTS. TO THE EXTENT THAT GENESYS CANNOT DISCLAIM A WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

10. LIMITATION OF LIABILITY

10.1. THE AGGREGATE AND TOTAL LIABILITY OF GENESYS (INCLUDING ITS THIRD PARTY SUPPLIERS, BUSINESS PARTNERS AND LICENSORS) FOR ANY AND ALL CLAIMS ARISING OUT OF THIS AGREEMENT WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE MATERIALS OR SERVICES THAT ACTUALLY CAUSED THE LOSS, CLAIM OR DAMAGES. IN NO EVENT SHALL GENESYS (INCLUDING ITS THIRD PARTY SUPPLIERS, BUSINESS PARTNERS AND LICENSORS) HAVE ANY LIABILITY FOR ANY INCIDENTAL, PUNITIVE, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR GOOD WILL, WORK STOPPAGE, LOSS OF REVENUE OR PROFITS, LOST OR CORRUPTED INFORMATION, LOSS OF DATA, COMPUTER FAILURE OR MALFUCNTION, TELECOMMUNICATIONS CHARGES FROM UNAUTHORIZED ACCESS, COVER DAMAGES, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR OTHER SIMILAR DAMAGES REGARDLESS OF THE THEORY ASSERTED, ARISING IN ANY WAY OUT OF OR IN CONNECTION WITH THIS AGREEMENT, UNDER ANY CAUSE OF ACTION, WHETHER OR NOT GENESYS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.  THIS SECTION DOES NOT LIMIT LIABILITY FOR BODILY INJURY OR BREACH OF CONFIDENTIALITY AND 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). 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.

10.2. NOTWITHSTANDING THE FOREGOING SECTION, ANY EVALUATION SOFTWARE IS PROVIDED GRATUITOUSLY AND, THEREFORE GENESYS SHALL NOT BE LIABLE UNDER ANY THEORY FOR ANY DAMAGES SUFFERED BY CUSTOMER RELATED TO THE EVALUATION SOFTWARE.  UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL GENESYS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE EVALUATION SOFTWARE, EVEN IF GENESYS HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES.

10.3. Actions. No action arising out of this Agreement may be brought by either party more than one (1) year after the cause of action to which it relates first becomes known (or ought to have become known) to the party bringing such an action.

11. Indemnification.

11.1. Customer Indemnification.  Customer will defend, at its expense, Company and its Affiliates, partners, Third Party Suppliers, licensors and each of their officers, directors and employees (collectively “Genesys Indemnified Parties”), indemnify, save and hold harmless Genesys Indemnified Parties against any judgments finally awarded by a court, and pay any settlements approved by Customer with respect to any claims arising from or related to: (a) Customer’s method or process of doing or conducting business where such method or process infringes any intellectual property rights of a third party; (b) Customer’s non-compliance with the Agreement, including Section 3.3 (Restrictions and Compliance); or (c) any circumstances arising under the Exclusions.

11.2. Genesys Indemnification. Subject to the Exclusions, Genesys agrees to defend Customer at Genesys’ expense, indemnify and hold Customer harmless against any judgments finally awarded by a court and pay any settlements approved by Genesys with respect to any third party claim brought against the Customer that the original Software, standing alone, and as used within the scope of this Agreement, infringes any valid and enforceable United States patent, copyright, trade secret or trademark of such third party. Customer shall take all reasonable steps to mitigate any potential expenses and provide GENESYS with: (i) prompt written notice of any such claim or action, or possibility thereof; (ii) sole control and authority over the defense or settlement of such claim or action; and (iii) proper and full information and assistance to settle or defend any such claim or action. If Genesys, in its sole discretion, believes that an injunction is likely to be entered prohibiting the use of the Software by the Customer, Genesys may at its option and expense, either: (i) procure for the Customer the right to use the infringing Software as provided herein; (ii) replace the infringing Software with non-infringing, functionally equivalent, Software; (iii) modify the infringing Software so that it is not infringing; or (iv) demand return of the infringing Software, refund the remaining value of such Software to the Customer (as amortized over a forty-eight (48) month aggregate period) and terminate the Customer’s license for the applicable Software.  Upon exercise of option (iv) of this Section, Genesys shall have no liability to the Customer arising out of Customer’s continued usage of the Software.  Except as specified above, GENESYS will not be liable for any costs or expenses incurred without its prior written authorization. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF GENESYS (AND REPRESENT THE SOLE AND EXCLUSIVE REMEDY) WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR OTHER INTELLECTUAL PROPERTY RIGHT BY THE SOFTWARE, OR ANY PART THEREOF.

11.3. Notwithstanding anything in the Agreement to the contrary, including Section 11.2 above, Indemnification, warranty or similar terms in the Agreement (or otherwise implied) will not apply to Third Party Products, materials or services and all indemnities or warranties, if any, will be provided directly by the Third Party Suppliers and not Genesys.

12. Confidentiality

12.1. “Confidential Information” means the non-public information that is exchanged between the parties, provided that such information is: (a) identified as confidential at the time of disclosure by the disclosing party (“Discloser”), or (b) disclosed under circumstances that would indicate to a reasonable person that the information ought to be treated as confidential by the party receiving such information (“Recipient”). For the avoidance of doubt, Genesys Confidential Information includes the Materials, Services and technical information relating to the Materials and Services.

12.2. Usage and Obligations. A Recipient may use the Confidential Information that it receives from the other party solely for the purpose of performing activities contemplated under this Agreement. Recipient shall not disclose the Confidential Information to any third party. A Recipient shall protect it by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication as the Recipient uses to protect its own confidential information of a like nature. The Recipient may disclose the Confidential Information to its Affiliates, agents and independent contractors with a need to know in order to fulfill the purpose of this Agreement, who are bound by nondisclosure obligations at least as protective of the Discloser’s rights as this Agreement.

12.3. Exclusions. This provision imposes no obligation upon a Recipient with respect to Confidential Information which: (i) is or becomes public knowledge through no fault of such Recipient; (ii) was in the Recipient’s possession before receipt from the Discloser and was not subject to a duty of confidentiality; (iii) is rightfully received by the Recipient without any duty of confidentiality; (iv) is disclosed generally to a third party by the Discloser without a duty of confidentiality on the third party; or (v) is independently developed by the Recipient without use of the Confidential Information.

12.4. Required Disclosures. The Recipient may disclose the Discloser’s Confidential Information as required by law or court order provided: (i) Recipient promptly notifies the Discloser in writing of the requirement for disclosure affording opportunity for Discloser to take protective actions; and (ii) discloses only as much of the Confidential Information as is required, maintaining all proprietary notices affixed to such Confidential Information. Upon request from the Discloser or upon termination of the Agreement, the Recipient shall return all Confidential Information and all copies, notes, summaries or extracts thereof or certify destruction of the same.

12.5. Injunctive Relief. Each party will retain all right, title and interest to such party’s Confidential Information. The parties acknowledge that a violation of the Recipient’s obligations with respect to Confidential Information may cause irreparable harm to the Discloser for which a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, Discloser shall be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the provisions hereof.

12.6. Similar Materials and Services. Notwithstanding anything to the contrary, Genesys will be free to use any concepts, processes, techniques, improvements or other know-how developed by Company in the course of performance of this Agreement (even if similar to materials, products and Services provided hereunder) free from any use restriction or payment obligation. For the avoidance of doubt, but subject to this Agreement, including this Section 12.6, Genesys does not claim any rights to any of Customer’s Confidential Information.

12.7. Customer acknowledges and agrees that Genesys (i) does not require Protected Health Information (“PHI”) or Personally Identifiable Information (“PII”) to perform its Services, and (ii) is not processing or transmitting PHI or PII under this Agreement. Customer shall comply with all laws concerning the disclosure of PHI and PII. Unless PHI or PII is required for Genesys to perform its Services, Customer shall not send or disclose PHI or PII to Genesys. If Customer needs to disclose PHI or PII to Genesys, Customer shall follow Genesys’ written instructions when disclosing such PHI or PII to Genesys.

13. Audit and Verification.

13.1. Audit. Customer agrees that Genesys may audit the Customer’s use of the Software solely for the purpose of determining Customer’s compliance with the provisions of this Agreement. This audit may take the form of an Annual Maintenance Renewal Validation. Customer further agrees to maintain records sufficient for Genesys to verify compliance with the provisions of this Agreement during the Term of this Agreement and for two (2) years thereafter.

13.2. Verification. Customer agrees to create, retain, and provide to Genesys and its representatives verifiable written records including validated log, configuration and other files, system tool outputs, and other system information sufficient to provide auditable data that Customer’s use of all Software is in compliance with the terms of this Agreement. Such review will include the placement of a Genesys approved license verification tool within Customer’s environment at any time during the period of usage.  Upon at least thirty (30) days prior Notice, Customer shall permit Genesys or Genesys’ representatives, at Genesys expense (except as provided herein), to examine and copy its physical and electronic records during Customer’s regular business hours. Genesys and its representatives’ examination of records is for the sole purpose of and only to the extent reasonably necessary to verify Customer’s compliance with the provisions of this Agreement.

13.3. Remedy. If any such examination conducted by Genesys or its representatives determines the Customer has used any Software beyond its authorized use or is otherwise not in compliance with the terms and conditions of the Agreement and or the licensing, maintenance and or pricing terms of the Software, then in addition to any legal remedies or equitable relief that may be available to Genesys, Customer shall be subject to charge for any expenses incurred by Genesys for any such examination. Without, prejudice to the foregoing, if shortfall in payment to Genesys is so disclosed, Genesys will notify the Customer in writing of such shortfall and Customer shall pay directly to Genesys all amounts specified including license and maintenance fees, including up to two years retroactive maintenance, within thirty (30) days of Genesys notification to Customer of such shortfall.

14. General.

14.1. Compliance with Laws. Each party shall comply with all applicable, enforceable laws and regulations as they relate to the acts, omissions, rights and obligations of the parties under this Agreement, provided, however, that Genesys will not be responsible for ensuring that the Materials, or Customer’s use thereof, complies with any laws or regulatory requirements that apply to Customer’s business or industry. As such, regardless of anything to the contrary, Customer is responsible for ensuring that Customer’s use of any Materials is in accordance with Customer Specific Laws, and Genesys is not responsible for providing, implementing, configuring or coding the Materials of any kind provided by Genesys pursuant to, or in compliance with, Customer-Specific Laws. Customer will comply with Customer Specific Laws, and in no event will Genesys, its partners, Third Party Suppliers or licensors be liable for any claim or action (it being understood that Customer is liable) arising from or related to Customer’s failure to comply with any Customer Specific Laws. The Software is Commercial Computer Software under Federal Government Acquisition Regulations and agency supplements to them and is provided to the Federal Government and its agencies only under the Restricted Rights Provision of the Federal Acquisition Regulations applicable to commercial computer software developed at private expense and not in the public domain.

14.2. Export Restrictions. Customer acknowledges that the Materials may be subject to export controls under the U.S. Export Administration Regulations as well as end-user, end use and destination restrictions issued by the United States government and other governments. Customer will strictly comply with all requirements of these controls and restrictions and cooperate fully with Genesys in any official or unofficial audit or inspection relating to these controls or restrictions.

14.3. Assignment. Customer may not assign the rights granted hereunder or this Agreement, in whole or in part and whether by operation of contract, law, change of control, merger or otherwise, without Genesys’ prior express written consent. Subject to the preceding sentence, the rights and liabilities of the parties hereto shall bind and inure to the benefit of their respective successors and assigns.

14.4. Transfer. Upon Prior written authorization from Genesys, Customer may transfer Genesys licenses to an Affiliate (a company in which, at the time of the transfer, a fifty percent (50%) or greater interest is owned, either directly or indirectly, by the customer). Transfer shall not occur until all of the following requirements are met:

14.4.1. Customer shall complete and provide to Genesys a License Reassignment Agreement as provided by Genesys, duly signed by authorized representatives of both Customer and its Affiliate. Transfer shall be deemed authorized once Genesys countersigns the License Reassignment Agreement.

14.4.2. All Genesys products owned by the Customer and its Affiliate have to be under paid and current Maintenance and Support as a condition for the transfer.

14.4.3. Transfer of Third Party Products is not permitted without written agreement by Genesys.

14.4.4. The Customer and/or the Affiliate shall be responsible for the relocation of the licenses between sites and for all the associated costs and expenses.

14.4.5. Customer and the Affiliate shall permit Genesys to verify compliance with the terms of use of the software as established in the License Reassignment Agreement under the terms of Section 14.4 of this Agreement.

14.4.6. Customer and the Affiliate shall follow all reasonable instructions provided by Genesys including, but not limited to, returning its old activation file(s) in exchange for updated activation files.

14.5. Relationship of the Parties.  Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, agency, employment or fiduciary relationship between the parties. Neither party has any authority to bind the other party, and the relationship of the parties is that of independent contractors. Third Party Suppliers may be intended beneficiaries of this Agreement to the extent of and with respect to such Third Party Products.  Neither Customer Affiliates nor users are third party beneficiaries of this Agreement.

14.6. Governing Law; Jurisdiction; Venue; Severability; Waiver. This Agreement will be governed by the laws of the State of California without reference to its conflicts of law provisions, and, where applicable, with the federal law of the United States. Any dispute relating to this Agreement shall be subject to the exclusive jurisdiction of 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), and the parties agree to submit to the personal and exclusive jurisdiction of such courts and that venue therein is proper and convenient.

14.7. Severability, Waiver.  If any provision of this Agreement is found to be partially or wholly unenforceable, such provision shall be enforced to the maximum extent permissible, and the other provisions of this Agreement shall remain in full effect. A waiver of any breach of this Agreement shall not constitute a waiver of any other right for subsequent breach.

14.8. Cumulative Remedies; Force Majeure. 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. Except for the payment obligations hereunder, neither party shall be liable for failure to perform its obligations under this Agreement if the failure results from circumstances beyond that party’s reasonable control. Time of performance of either party’s obligations hereunder shall be extended by the time period reasonably necessary to overcome the effects of such circumstances, provided, however, that if such circumstances continue beyond thirty (30) days, the party awaiting performance may cancel this Agreement or the Order affected.

14.9. Publicity.  Genesys may use the name of Customer in any press release, public disclosures, case studies, advertising or materials (collectively “Marketing Materials”) distributed to prospective or existing customers of Genesys. Further, Customer will provide reasonable assistance to Genesys in Genesys’ efforts to prepare and distribute any such Marketing Materials.

14.10. Notices.  All notices and consents will be in writing and will be sent pre-paid by first class mail or by overnight delivery using a nationally recognized and reputable overnight courier. Such notices and consents will be deemed received five (5) business days after deposit if sent by mail and one (1) business day after deposit if sent by overnight courier.  Notices to Genesys and to Customer will be sent to the following addresses or such other address as a party may notify the other party in writing:

If to Genesys:

Genesys Telecommunications Laboratories, Inc.

2001 Junipero Serra Blvd.

Daly City, CA 94014

Attention:  Legal Department

If to Customer:

The Customer Contact at the Billing Address listed on the Services Order

14.11. Entire Agreement. The Services Order, this Agreement, including its Schedules and any executed Amendment(s) and Addendum(s) are the complete and entire Agreement between the parties concerning the subject matter hereof as of the Effective Date. The provisions of this Agreement shall supersede any conflicting or additional provisions on any purchase order or Order, including any entire agreement clause or other clause on any such Order which generally purports to supersede all previous agreements.

 

SCHEDULE A

MAINTENANCE AND SUPPORT TERMS

The provisions of this Schedule shall apply to all Orders issued by Customer for Maintenance and Support.

1. Definitions.

1.1. “All Relevant Information” means the information deemed necessary by Genesys to enable the successful identification and resolution of a service request.

1.2. “Maintenance Fee” means the annual fee to be paid to Genesys to entitle Customer to access and use Maintenance and Support in accordance with the provisions of this Agreement.

1.3. “Maintenance and Support” means the maintenance and support service purchased by Customer that provides (i) Maintenance, Minor and Major Releases, if any, and appropriate Documentation to the Software; (ii) telephone or email assistance with respect to the Software (iii) Customer access to Genesys support personnel twenty-four (24) hours per day, seven (7) days per week, for “Critical” issues as defined herein.  Telephone assistance shall comprise: (A) clarification of functions and features of the Software, (B) clarification of Documentation pertaining to the Software and (C) error verification, analysis and resolution.

1.4. “Release” means a version of any Software containing functional enhancements, modifications, extensions, error corrections or bug fixes.  Releases are not provided as part of the Software unless Customer has timely paid the applicable Maintenance Fees.

1.5. “Major Release” means a Release which comprises a substantial change to the Software content and fixes to previously determined defects, and may include architectural changes.

1.6. “Minor Release” means a Release which comprises new features, functions, and fixes to previously determined defects.

1.7. “Maintenance Release” means a Release which comprises fixes to previously determined defects, but does not include new features or functions.

2. Maintenance and Support.

2.1. Initial Purchase and Fees. Customer shall purchase and receive Maintenance and Support for the Software as of the delivery date.  The Maintenance Fee shall be as set forth on the order.

2.2. Technical Support Procedures. Genesys shall use commercially reasonable efforts to correct material errors in the Software in accordance with the technical support and escalation procedures set forth in the Support Guide for On-Premise Licenses. In the event that remote resolution is not possible, Genesys may, upon mutual agreement, attend the Customer site to attempt such resolution. In such case, additional fees and travel expenses may be applicable.

2.3. Covered Versions and Exclusions. Genesys shall provide Maintenance and Support for the current Major Release of the Software and the most current version of the immediately prior Major Release. Genesys shall not provide Maintenance and Support relating to flaws in operation arising out of: (i) changes to the operating system or environment which adversely affects the Software; (ii) any alterations, Customizations of or additions to the Software performed by parties other than Genesys or at the direction of Genesys; (iii) use of the Software not in accordance with the Agreement or Documentation; (iv) accident, negligence or misuse of the Software; (v) interconnection of the Software with other software not supported by Genesys; (vi) modification of the database structure designed to be used by the Software or (vii) introduction or extraction of data into, or from any Genesys Software database, by any means other than the use of Genesys application programming interfaces.  Genesys shall have no obligation to provide Maintenance and Support unless Customer is current on all fees due under this Agreement.

2.4. Designated Contacts.  Customer shall appoint at least two (2) employees to initiate and manage Maintenance and Support inquiries with Genesys (“Designated Contacts”). Designated Contacts shall conform to the requirements set out in the Support Guide for On-Premise Licenses and achieve formal Genesys training applicable to the Software.  Designated Contacts shall have competent knowledge of the technical infrastructure where the Software is installed. Customer shall maintain at least two (2) Designated Contacts for as long as it receives Maintenance and Support. Genesys shall be entitled to charge reasonable additional fees for Services provided beyond the scope of Genesys’ support obligations set forth herein.

2.5. Maintenance Term.  Unless otherwise specified in an Order, Maintenance and Support shall be provided to Customer for a period of twelve (12) months commencing on delivery of the Software (“Initial Maintenance Term”) and for consecutive twelve (12) month terms commencing on each anniversary of the delivery of the Software (“Renewal Date”) (each such term being a “Renewal Maintenance Term”), as agreed upon by the parties (collectively, “Maintenance Period”).

2.6. Renewal Procedure. Maintenance and Support provisions of this Agreement shall automatically renew at the end of the Maintenance Period unless terminated by the parties at least sixty (60) days prior to the end of the Maintenance Period. Genesys may increase the Maintenance Fee effective on each Renewal Date by notifying Customer at least ninety (90) days prior to such Renewal Date. Genesys shall notify Customer of an impending expiration at least ninety (90) days prior to the last date of the Initial Maintenance Term or a Renewal Maintenance Term (“Expiration Date”) and Customer shall, at least sixty (60) days prior to the then-current Expiration Date, either notify Genesys of its intent not to renew or issue a Maintenance and Support renewal purchase order or Order. All renewals of Maintenance and Support must be for all Software covered under the prior Maintenance Term, and Genesys will not accept partial renewals of Maintenance and Support without repricing in a manner consistent with pricing thresholds of the remaining licenses under Maintenance. Notwithstanding the automatic renewal clause set forth above, in case of Customer’s failure to provide a Maintenance and Support renewal purchase order or Order prior to the end of the Maintenance Period, Genesys shall be entitled to immediately terminate or suspend all Maintenance and Support Services after the end of such Maintenance Period without notice and shall be entitled to Maintenance and Support fees retroactive to the Renewal Term start date.

2.7. Usage Without Entitlement. Customers may not use Genesys Maintenance and Support for Genesys Software that is not covered by a valid Entitlement. If it is determined that the Customer has made use of Maintenance and Support without authorization of the Entitlement, Customer will be invoiced for the usage at the then current Genesys prices for Maintenance and Support.

2.8. Reinstatement. If Maintenance and Support is terminated or expires, the parties may agree in writing to subsequently renew or reinstate Maintenance and Support for a Renewal Maintenance Term of at least twelve months from the date of such renewal. In such case, as a prerequisite to renewal, Customer shall pay at a minimum all Maintenance and Support fees that would have been due had Maintenance and Support not terminated or expired and may be required to pay additional reinstatement fees.

2.9. Activation Files. If Maintenance and Support terminates or expires, Genesys may require payment for a new Activation File.

2.10. Developer Materials. Maintenance and Support for Developer Materials does not include any Maintenance and Support for Developed Works or any general development support.

3. Responsibilities for Maintenance and Support

3.1. Customer shall use commercially reasonable efforts to perform the following tasks with regard to Maintenance and Support:

• Maintain a current Maintenance and Support agreement and be current in payment of all related Maintenance Fees.
• Maintain competent and complete technical understanding of own technical infrastructure including Software and versions deployed.
• Conduct searches of Genesys Knowledge Base and Genesys technical documentation to determine if similar problems have been reported at My Support (login at  /customer-care )
• Employ a minimum of two (2) Designated Contacts, trained in applicable Software, for the purpose of submitting and updating Service Requests to Genesys.
• Accurately characterize Software problems reported and describe their business impact, to include what is wrong, when it went wrong, if applicable, any changes to the Software environment and the steps that cause the problem to occur.
• Describe Customer steps or actions to try and resolve such problems.
• Gather, validate and make available log, configuration and other files devoid of customer sensitive data for analysis
• Reference key indicators such as call flow behaviour, agent IDs or connection IDs which are pertinent to the problem, when submitting log, configuration and other diagnostic files to Genesys.
• Provide timely and accurate responses, aligned with stated Case priority, to information requests, fixes and recommendations provided by Genesys.
• Apply revised Software and/or configuration options as directed by Genesys.
• Maintain a lab or development environment that is reasonably representative of End Users production environment.
• Submit, manage and escalate Cases in accordance with the current Support Processes for On-Premises Licenses.
• Ensure implementation of best practices around log-file administration, remote access and other general troubleshooting principles, as directed by Genesys.
• Complete Customer Satisfaction surveys following the resolution of a Case.

3.2. Genesys shall use commercially reasonable efforts to perform the following tasks with regard to Maintenance and Support:

• Serve as the initial point of contact for End Users of the Software.
• Employ dedicated experts, trained in applicable Software, for purpose of analyzing and resolving Cases.
• Have a dedicated support center with published business hours and contact details.
• Use an incident tracking system for capturing and managing Cases and customer satisfaction feedback.
• Answer End User technical questions in relation to the operation of the Software.
• Guide End User to the Knowledge Base, release notes and documentation on Genesys My Support (login at /customer-care).
• Collect and analyze all relevant validated log, configuration and other files.
• Research all other information needed to troubleshoot non-obvious problems, such as call scenarios, routing strategies, campaign details and environment changes.
• Isolate the problem to a Software component and, where reasonably practicable, reproduce in a lab environment.
• Provide timely and accurate responses to End User requests in line with Service Level Targets.
• Enhance the problem description and investigation information for Genesys expert analysis when a solution cannot be identified.
• Identify and communicate workarounds, where applicable, in order to resolve a Case.
• Communicate best practices around log-file administration and general principles – i.e. acquiring application and system log files, viewing analyzing log files and setting log file thresholds.
• Coordinate the creation and distribution of product Feature Requests to Genesys Product Management as and when required.
• Leverage Genesys and industry standard tools to remotely troubleshoot and assist with the investigative and diagnostic process.
• May attend End User site to further the investigation process, once all reasonable attempts to remotely resolve the Case prove unsuccessful.
• Provide reasonable advice on complex configuration and product utilisation issues.
• Clarify functions and features of the Software and Documentation.
• Create and maintain knowledge base and FAQ’s, and administer & distribute Product Advisories.
• Verify and analyze software defects and manage fix and software delivery.
• Diagnose problems with the operation of the Software in a production or development environment in order to determine the root cause.
• Resolve issues requiring product design engineering expertise.
• Create Engineering Requests (ER) in order to engage Genesys Engineering in assisting with root cause identification and/or validation.
• Direct End User to available Software and documentation, as appropriate, to resolve Cases.

 

SERVICE LEVEL TARGETS

Maintenance and Support shall be provided as set forth in Section 2 of Schedule A.  Customer shall provide an accurate description of the problem and the severity of the problem, stating the circumstances that lead to the severity condition.  The actual severity level may be mutually re-determined by both parties during the problem resolution process, but Genesys shall have the final authority as to the actual designation.  Time targets as set out in the Support Guide for On-Premises Licenses shall come into effect following acknowledged receipt of All Relevant Information being supplied by Customer to Genesys.

In the event Genesys requests any software “dumps”, logs or any other documentation from Customer to resolve a reported problem, such documentation shall be forwarded through electronic means (email or ftp).  Additional hardware, implementation and training services may be required for implementation of Releases.

Customer shall not unreasonably deny any request from Genesys to participate in remote access and investigation sessions to Customer servers.

Escalation Path for Maintenance and Support Issues:

• If Customer is not satisfied with the Maintenance and Support provided by Genesys, Customer shall follow the escalation guidelines set out in the current Support Guide for On-Premises Licenses.
• Such contact persons may be changed from time-to-time at the sole discretion of Genesys.

 

SCHEDULE B

Genesys Software License Elements and Definitions

 

The following list includes the standard software licensing elements and definitions used by Genesys.  These definitions are subject to periodic changes in response to updated offerings.

License Elements

The Genesys software license definition and entitlement consists of a base license, plus three types of modifiers.  The license definition is complete only if the base license and all mandatory modifiers are specified.

Base License:  The basic user type for this software license type.

Term:  Modifier specifying the time period for which the license is granted.

Pricing Method:  Modifier specifying how the license applies across the population of users.

Environment:  Modifier specifying whether the licenses will be used in the customer’s production or non-production environment types.

Example:  A complete license definition for a typical agent seat license would be as follows:

Definitions

* Note: When licenses are part of a subscription offer, any Users or Seats used exclusively by Genesys for the purposes of test calls/interactions do not contribute towards license usage counts.

 

SCHEDULE C

CUSTOM APPLICATION SUPPORT TERMS AND CONDITIONS

The provisions of this Schedule shall apply to Custom Application Support which may be offered at Genesys’ option for certain Custom Applications delivered by Genesys under a Statement of Work.

1. Definitions. 

1.1. “Genesys PS Asset” means an off-the shelf software application or module that has been previously developed by Genesys Professional Services or one of its suppliers.  A Genesys PS Asset is not “Software” as set forth in the Agreement and is not a standard, generally available product.  A Genesys PS Asset is provided as a Professional Services deliverable, in accordance with Section 4.4 of the Agreement.  A Genesys PS Asset is not supported under standard Maintenance and Support as set forth in Section 4 and Schedule A to the Agreement.

1.2.  “Packaged Services Offer” means a service offering that is designed to streamline the services delivery process and represents one or more written procedures or rules optionally augmented by certain tools or applications and applicable documentation pertaining to its operation and that is pre-packaged and contracted and marketed as a standalone services offer or in conjunction with other packaged services offers.  A Packaged Services Offer is provided in accordance with a Statement of Work or Letter of Engagement.

1.3.  “Application Support Fee” means the annual fee to be paid to Genesys to entitle Customer to access and use Custom Application Support in accordance with the provisions of this Agreement.

1.4. “Custom Application Support” means the support service for Custom Applications provided by Genesys and its qualified suppliers and described in Section 2 of this Schedule that provides (i) break/fix support services and documentation updates for Custom Applications; (ii) remote telephone or email assistance with respect to the support between the times stated in the “Custom Application Support Program Guide” located at https://genesyslab.com/customer-experience/customer-success/customer-care and (iii) Customer access to Genesys Professional Services personnel through the Genesys technical support interface, twenty-four (24) hours per day, seven (7) days per week, for “Critical” issues as defined herein. Telephone/email assistance shall comprise of: (A) clarification of functions and features of the Creations, (B) clarification of Documentation pertaining to the Creations or Packaged Services Offers and (C) error verification, analysis and resolution with respect to the Custom Applications.  Custom Applications Support is not included in Maintenance and Support and is an optional, separate service offering.

1.5. “Custom Application” means a Creation, Genesys PS Asset or Packaged Services Offer that is supported under a Statement of Work for Custom Application Support.

2. Custom Application Support.

2.1. Initial Purchase and Fees. Customer shall purchase and receive Custom Application Support as stated in corresponding Professional Services Statement of Work detailing which Custom Applications are being supported and stating the applicable Application Support Fees. Genesys reserves the right to decide which Custom Applications will be eligible for Custom Application Support coverage

2.2. Custom Application Support Procedures.  Genesys shall use commercially reasonable efforts to correct material errors in the Custom Applications in accordance with the Custom Application Support and escalation procedures set forth in the Custom Application Support Program Guide. Genesys will provide:  (i) Custom Application Support for the Custom Applications through the lifecycle of the Major Release of the Genesys Software that the Custom Application was deployed on (excluding major architectural changes that impact interoperability with previous versions of the Licensed product and introduction of new Major Releases from 3rd party providers) while the support agreement remains in effect; and (ii) impact assessment for support under subsequent Major versions of the Genesys Software.  The details of the version coverage will be provided on a case by case basis in the applicable Statement of Work

2.3. Exclusions. Genesys shall not provide Custom Application Support relating to flaws in operation arising out of: (i) changes to the operating system or environment which adversely affects the Custom Applications under Support; (ii) any alterations of or additions to the originally designed and developed code performed by parties other than Genesys or at the direction of Genesys; (iii) use of the Custom Application not in accordance with the provided Documentation; (iv) accident, negligence or misuse of the Custom Application; (v) interconnection of the Custom Application with software not supported by Genesys; (vi) modifications to the application or peripheral systems to be used by the Custom Application, or (vii) hardware malfunction or improper hardware configuration.  Genesys shall have no obligation to provide Custom Application Support unless Customer is current on all fees due under this Agreement.

2.4. Resolution of Non-Genesys Problems Genesys will investigate and diagnose all tickets opened related to the Custom Application. Genesys will use commercially reasonable efforts to provide resolution to defects found within the originally developed Custom Application code. Upon receipt of a call from Customer, Genesys will initially perform problem determination on the issues reported through the technical support interface. After this problem determination period, should Genesys determine there is significant likelihood that a reported problem is caused by factors outside of the Custom Application, including but not limited to Customer’s firewall, database, network, telecommunications equipment, host computers or applications (“Non-Genesys Problem”), Customer will have the option to assume responsibility for further problem diagnosis and resolution or to approve in writing via the Change Control System defined in the applicable Statement of Work, Genesys’ continued investigation and work on resolution of the Non-Genesys Problem.  Such services would be provided during Normal Business Hours and at the applicable Professional Services Hourly Rate.

2.5. Designated Contracts. Customer shall appoint at least two (2) employees to initiate and manage Custom Application Support inquiries with Genesys “Designated Contacts”).

2.6. Onsite Support and Expenses. All Custom Application Support Services will be provided remotely unless otherwise agreed upon in writing by the parties. Travel and living expenses are not included in the annual Application Support fee. If both Customer and Genesys determine that onsite support is necessary, any travel and living expenses will be agreed with the Customer prior to incurring the expenses and Customer will issue a valid purchase order equal to the estimate. Travel and living expenses incurred by Genesys will be billed monthly at actual cost.

2.7. Custom Application Support Term. Custom Application Support shall be provided to Customer for a period of twelve (12) months from the delivery of the Application Support Commencement Notice stating the effective date (“Initial Custom Application Support Term”) and for consecutive twelve (12) month terms commencing on each anniversary of the effective date (“Renewal Date”) (each such term being a “Renewal Term”), as agreed upon by the parties (collectively, “Custom Application Support Period”).

2.8. Renewal Procedure. Custom Application Support provisions of this Agreement shall automatically renew at the end of the Custom Application Support Period unless terminated by the parties at least sixty (60) days prior to the end of the Custom Application Support Period. Genesys may increase the Custom Application Support effective on each Renewal Date by notifying Customer at least ninety (90) days prior to such Renewal Date. Genesys shall notify Customer of an impending expiration at least ninety (90) days prior to the last date of the Initial Custom Application Support Term or a Renewal Custom Application Support Term (“Expiration Date”) and Customer shall, at least sixty (60) days prior to the then-current Expiration Date, either notify Genesys in writing of its intent not to renew or issue a Custom Application Support renewal purchase order or Order.  Notwithstanding the automatic renewal clause set forth above, in case of Customer’s failure to provide a Custom Application Support renewal purchase order or Order prior to the end of the Custom Application Support Period, Genesys shall be entitled to immediately terminate or suspend all Custom Application Support Services without notice.

2.9. Reinstatement. If Custom Application Support is terminated or expires, the parties may agree in writing to subsequently renew or reinstate Custom Application Support for a Renewal Term of at least twelve months from the date of such renewal. In such case, as a prerequisite to renewal, Customer shall pay at a minimum all Custom Application Support fees that would have been due had Custom Application Support not terminated or expired and may be required to pay additional reinstatement fees.

2.10. Genesys shall have no obligation to provide Custom Application Support unless Customer is current on all Maintenance and Support fees due under this Agreement.

 

SCHEDULE D

SPECIAL TERMS FOR SOFTWARE DEVELOPMENT KITS

The provisions of this Schedule shall supersede any conflicting provisions of the Agreement for purposes of Developer Materials.

1. Definitions.

1.1.  “Customer Products” means the commercially available software products that are owned or licensed by Customer, which products access, communicate or interoperate with the Software through Developed Works.

1.2.  “Developed Works” means the software code (including without limitation the application or integration) developed by Customer by using the Developer Materials, which enables Customer Products to access, communicate or interoperate with The Software solely through Genesys proprietary interface elements, application program interfaces (“API”) or software development kits (“SDK”).

1.3. “Developer Materials” means Genesys productized SDK’s, in object code (and clear text formats if applicable) only, and Documentation, ordered by Customer pursuant to an Order.  Developer Materials shall be included in the definition of “Software” for purposes of this Schedule.

1.4. “Run-Time License” means the Genesys run-time licenses as set forth at the Genesys web page located at the following URL: [/landing/software-development-kit-components]. For the avoidance of doubt, Genesys reserves the right to amend Run-Time License related information published at the Genesys web page, in its sole discretion. The provisions of the Run-Time License information set forth herein (and on the applicable Genesys web page) shall supersede any conflicting information in the Documentation

1.5.  “Subcontractor” means a third party entity or individual independent contractor whom Customer contracts to perform on its behalf the authorized development activities set forth in this Schedule provided that (i) such third party shall not be a competitor of Genesys, as Genesys deems in its reasonable discretion; (ii) Customer shall notify Genesys in writing of the identity the third party (including without limitation contact information of such third party) to Genesys prior to the start of any work by such third party under this Schedule; (iii) Customer shall bind such third party by restrictions regarding disclosure and use of Confidential Information that are no less restrictive than those set forth herein; (iv) Customer shall properly coordinate and supervise work to be performed by such third party hereunder; (v) Customer shall remain responsible and liable for such third party’s compliance with the provisions of this Schedule; (vi) Customer shall ensure that such third party has assigned all rights, title and interest such third party may have or acquire in the Developed Works to Customer, and shall obtain from such third party all necessary waivers of rights (including without limitation, consent letter regarding non-performance of moral rights) in and to the Developed Works, in favor of Customer and its authorized assigns and successors; and (vii) and Customer shall ensure that such third party delivers to Customer: (A) the Developer Materials, (B) the Developed Works and (C) all information, documentation and materials (including without limitation, source code) relating to the Developed Works.

2. License Grants.

2.1. Development Rights.  Genesys grants to Customer a non-exclusive, non-transferable, terminable license, without any right to sublicense (except as expressly permitted herein), to permit its employees or a Subcontractor to use the Developer Materials described in a valid Order issued by Customer within the United States and Canada, and solely in accordance with the Documentation and the schedule of authorized integration development activities set forth at the Genesys web page located at the following URL: [/landing/software-development-kit-components], to create, debug or test the Developed Works.  Genesys reserves the right to amend the information set forth at the aforementioned Genesys Interworks Program web page in its sole discretion

2.2. Internal Use. Customer shall be entitled to use the Developed Works solely for its own internal business operations, provided, however, that Customer licenses all applicable Run-Time Licenses prior to deployment of the Developed Works.

3. Restrictions.

3.1. Customer shall not create Developed Works in a manner, and shall not permit the Developed Works to be used or distributed in a manner that subjects Genesys Confidential Information, to license provisions which seek to require any Genesys Confidential Information to be licensed to or shared with any third party under provisions that require such Genesys Confidential Information to (A) be disclosed or distributed in source code form; (B) be licensed for the purpose of making derivative works; or (C) be redistributable at no charge.

3.2. Customer’s development activities during the Term of this Schedule shall be subject to the following conditions:

3.2.1. Customer shall use the Developer Materials to create Developed Works, which, running in conjunction with the Software and applicable Run-Time licenses (collectively, “Integrated Solution”), shall conform to design and implementation guidelines and restrictions set forth in the Documentation. The Integrated Solution shall:

• Use only Genesys supported SDKs and Genesys products to access Genesys data;
• Not modify data/database schema in Genesys database tables directly using SQL;
• Not introduce database triggers or stored procedures that operate on Genesys database tables;
• Not compromise data or application security, access or visibility restrictions enforced by either The Software or Developed Works;
• Not impede the accurate or effective operation of The Software;
• Not compromise data integrity of The Software (e.g., if both The Software and Developed Works can modify the same data, then modifications by Developed Works must not circumvent data integrity rules of The Software); and
• Not cause duplicate copies of data to exist in both Integrated Solution and Genesys databases.

3.2.2. Customer shall not use the Developer Materials to create a product which has substantially similar or the same functionality as the Software as documented in the applicable documentation;

3.2.3. Customer shall be solely responsible for updating the Developed Works as required to access, communicate or interoperate with the latest release of the Developer Materials or Genesys products; and

4. Proprietary Rights.

Customer shall retain all rights, title and interest in and to Customer Products and Developed Works.  Customer acknowledges and agrees that Genesys and other licensees of Developer Materials may use, develop or sell the same or similar technology as Customer’s Developed Works or Customer Products; provided that such technology is developed without the use of or reference to Customer’s Developed Works or Customer Products.

5. Indemnification. 

In addition to the indemnification obligations set forth in the Agreement, Customer shall defend or, at its sole discretion, settle, any claim, action or proceeding brought against Genesys relating to the development, performance or use of the Developed Works; or any representation made by Customer that Genesys has endorsed, warranted or supports the Developed Works, and to indemnify Genesys against, and hold Genesys harmless from, any and all costs and damages finally awarded against Genesys that are directly attributable to such claim, action or proceeding.

SCHEDULE E

DEFINITIONS

1. “Activation File” means a data file utilized to activate Software.

2.  “Affiliate” means an entity directly or indirectly controlling, controlled by or under common control with Customer as of or after the Effective Date, for so long as such relationship is in effect (including Affiliates subsequently established by acquisition, merger or otherwise).  An ownership interest of fifty percent (50%) or more of an entity will be deemed control of the entity.

3.  “Applicable Law” means laws, statutes, rules, regulations, ordinances and other pronouncements having the effect of law of any governmental authority applicable to any party.

4.  “Creations” mean all Derivative Works, source and object code, specification, designs, processes, techniques, concepts, discoveries and inventions made or developed in connection with the Services.  Creations shall be the sole and exclusive property of Genesys.

5.  “Customer” means the entity named on the signature block below, including its Affiliates.

6.  “Customer Specific Laws” means Applicable Laws governing Customer’s business or industry, including FTC or FCC regulations, the Telephone Consumer Protection Act of 1991, and/or HIPAA or HITECH.

7.  “Customization” means any alteration, derivation, modification, configuration or customization of the Software or Deliverable regardless of whether developed by Genesys, Customer, or any other person or entity and regardless of whether developed using Genesys tools, methods, or training.

8.  “Deliverables” means a Customization or other deliverable provided by Genesys to Customer pursuant to a Statement of Work.

9.  “Derivative Work” means a new or modified work that is based on or derived from all or any part of the Software, including without limitation, a revision, modification, translation, localization, adaptation, abridgment, port, condensation or expansion, in any form, of the Software, 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 Software or that uses trade secrets or other Confidential Information embodied in or used by the Software.

10.  “Documentation” means applicable technical published manuals made available to Customer.

11.  “Equipment” means the hardware and other equipment provided by a Third Party Supplier.

12.  “Evaluation Software” means Software licensed only for the purpose of internal evaluation and demonstration.

13.  “Exclusions” means the following conditions which are excluded from Genesys’ warranty, defense and indemnity obligations: (i) Customer’s non-compliance with this Agreement, including any specified terms and conditions in any Order Form, the Documentation or documentation for any deliverable; (ii) Customer’s failure to use a supported version of the Software; (iii) Customer’s failure to install and use the latest version of or any modifications to the Software including any modifications provided by Genesys; (iv) the development or use of any Customization unless such Customization was made by Genesys; (v) Customer’s business method(s) or process(es); (vi) Genesys’ compliance with Customer’s requests or instructions; (vii) Customer’s content, data, or third party products, services or materials or customer provided items; (vi) Customer Products or Developed Works; or (vii) use of the Software if the infringement would have been avoided if the Software had been used in accordance with the Documentation. For the avoidance of doubt, Genesys will have no warranty, defense or indemnity obligations to the extent a breach or claim arises from an Exclusion(s).

14.  “Fees” means (i) the fees Customer is required to pay Genesys to use the Software during the applicable License Term, such as fees that are reflected on each applicable Order; (ii) the fees Customer is required to pay Genesys for any Services Customer engages Genesys to perform, such as fees that are reflected on each applicable Statement of Work, an Order for Maintenance and Support, or an Order for Training ; and (iii) the fees Customer is required to pay Genesys for Services that would normally be covered under Maintenance and Support for a Renewal Maintenance Term.

15.  “License Unit Type” means the license type set forth on the order as each type is defined in Schedule B.  Genesys reserves the right to modify its License Unit Types with respect to any future Orders.

16.  “Materials” means the Software, Third Party Products, if any, Customizations, Creations, Deliverables, Derivative Works, Maintenance and Support (including any updates, bug fixes, releases and upgrades), Genesys Confidential Information and any other information, products, services or materials provided or made available to Customer that are proprietary to Genesys or its Third Party Suppliers, licensors, partners or suppliers.

17.  “Order(s)” means the document by which Customer orders Software, Maintenance and Support, Training or Professional Services or other goods and Services that Customer may Order from Genesys.  An Order shall include: (i) incorporation of this Agreement by reference; (ii) description of items being ordered, including quantity, Licensing Unit Type, version, and price as applicable (iii) billing address; and (iv) ship to location, if applicable.  All Orders are irrevocable and non-refundable except as provided herein.  Genesys reserves the right to waive any or all of the aforementioned requirements either in writing or by fulfilment of the Order.

18.  “Professional Services” shall mean the professional services described in a Statement of Work executed by the parties.

19.  “Services” shall mean Customer Application and Support Services, Professional Services, Packaged Services, Maintenance Services, and Support Services described in a Statement of Work and provided under this Agreement.

20.  “Software” means the (i) applicable generally available software products listed on Genesys’ applicable standard price list, (ii) the Interactive Software listed in Exhibit A, and (iii) any Interactive Software included in an Order.  Software will only be provided in object code format and includes applicable Documentation ordered by Customer.  Software does not include customized software deliverables or Third Party Products or services (e.g. AudioCodes, Polycom, and Verint).

21.  “Software Entitlement” or “Entitlement” means Customers authorized use of the Genesys Software as evidence by quantity, warranty, and/or upgrade or tradeups(migrations), if any.  Evidence of Entitlement may be established with an Agreement accompanied by a paid sales receipt(s) or sales order(s) that specifies the Genesys Software and quantity acquired.

22.  “Statement of Work” or “Letter of Engagement” means a mutually executed document describing the Professional Services to be provided by Genesys pursuant to this Agreement.

23.  “Third Party Products” means Equipment, software or services provided by a Third Party Supplier.

24.  “Third Party Supplier” means the supplier of Third Party Products.

25.  “Training” means Genesys core curriculum training as provided through Genesys University, including designated training required for Designated Contacts.