ContactEngine Limited Business Terms and Conditions
1. Definitions.
For purposes of this Agreement, the terms listed below shall have the following meanings:
“Affiliate” means, when used with respect to a Party, any legal entity controlled by, controlling, or under common control with that Party, where “control” (and its derivatives) means: (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation, person, or other entity through the ownership of voting securities; or (b) direct or indirect ownership in the aggregate of fifty percent (50%) or more of any class of voting or equity interests in the other corporation, person, or entity.
“Claim” means a claim brought against a Party by a third party.
“Cloud Services” means the Software-as-a-Service and Hosting Services, individually and collectively.
“Confidential Information” means with respect to either Party, any information disclosed by such Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with this Agreement, on or after the Effective Date of this Agreement, which is either marked as confidential (or words of similar import) or is of a nature or disclosed in such a manner as would put a reasonable person on notice as to the confidential or proprietary nature of the information, including without limitation materials or information related to requests for proposal, quotes, or NICE’s Software and Services. Notwithstanding the foregoing, if the Parties entered into a confidentiality/non-disclosure agreement prior to the Effective Date, the information disclosed under such agreement shall be deemed to be Confidential Information hereunder.
“Content” means the data provided by Customer to use a Service.
“Documentation” means the applicable specifications and user documentation accompanying Services or Software.
“Hosting Services” means the hosting environment, including the infrastructure and operating environment, provided by NICE enabling Customer to access Software that will not be delivered via SaaS.
“Losses” means costs, damages, expenses, or liabilities.
“Order” means an ordering document executed by the Parties and governed by this Agreement, which details the Services or Software being purchased by Customer.
“Party” means either NICE or Customer, individually as the context indicates; and “Parties” means NICE and Customer, collectively.
“Professional Service(s)” means consulting, installation, implementation, and training services to be provided by NICE pursuant to an Order or Statement of Work.
“Resulting Information” means data created by, or resulting from, the use of the Services, including analyses, statistics, reports, and aggregations, all of which shall be considered NICE Confidential Information. For the avoidance of doubt, the term Resulting Information does not include personally identifiable information, such that there is no reasonable basis on which any individual, or Customer itself, could be identified by the Resulting Information.
“Service(s)” means the Cloud Services, Professional Services, or other services to be provided by NICE pursuant to an Order or SOW.
“Software” means software provided to Customer pursuant to an Order. All references in this Agreement to purchases of Software are intended by the Parties to mean purchases of licenses to Software.
“Software-as-a-Service” or “SaaS” means a subscription-based service consisting of the ability to use, and receive support in connection with, the Software in the hosting environment as described in an Order.
“Statement of Work” or “SOW” means a document executed by the Parties pursuant to this Agreement, which describes, the Professional Services to be provided by NICE. If the Parties agree, an Order may be used in lieu of a Statement of Work.
“Subscription Term” means the term described in the applicable Order.
2. Ordering Procedure.
The Parties agree that the Agreement governs transactions whereby Customer may purchase Services and Software by entering into an Order or SOW. Customer will be responsible for any contractors submitting purchase orders to NICE on Customer’s behalf. and Customer and its Affiliates may purchase Services and Software by entering into an Order with NICE or its Affiliates, as applicable. Customer and any Customer Affiliate that purchases Services or Software under this Agreement shall be jointly and severally liable for any breach of this Agreement by any Customer Affiliate.
Contractor. Customer may designate one or more contractors that may interact with NICE on its behalf for purposes of accessing Customer’s NICE technical support account, (“Contractors”). Customer may also add or subtract Contractors from this Agreement by providing NICE with written or electronic notice containing the contact information for each Contractor and Customer Affiliates with which the Contractor is working. Customer may permit Contractors to access and use the Software, without notice to NICE, in accordance with this Agreement and so long as the Contractor is subject to confidentiality obligations no less protective than this Agreement. All Contractors shall be bound by this Agreement, and shall only have the right to act for the sole benefit of the Customer. Customer is obligated to promptly notify NICE of any change in status of Contractors. Customer and any Customer Affiliate who benefits from a Contractor hereunder shall be jointly and severally liable for any breach of this Agreement by the Contractor.
3. Invoicing, Payment Terms, and Taxes.
3.1 NICE shall invoice Customer as described in each Order or SOW. Customer shall reimburse NICE for preapproved expenses associated with Professional Services (e.g., travel expenses) in accordance with NICE’s travel and expense policy and as further described in an Order or SOW, and such expenses shall be invoiced monthly in arrears. Customer shall pay to NICE all fees or other costs due hereunder in the currency stated in the invoice in [U.S. Dollars/INSERT OTHER CURRENCY (as applicable)], and in full within thirty (30) days following Customer’s receipt of NICE’s invoice. With respect to any amount due to NICE which is not paid within thirty (30) days following the date of Customer’s receipt of NICE’s invoice, NICE may apply interest at the rate of one and one-half percent (1½%) per month, or such lesser amount required by law, assessed from the due date through the date of payment. Without waiving any of its rights or remedies under the Agreement or at law, NICE reserves the right to suspend delivery of Software or performance of Services until any amounts that are outstanding and past due are paid in full by Customer. In limited circumstances, NICE may, in its sole discretion, accept a Customer purchase order for certain Services or Software. Customer purchase orders, if any, are provided for Customer’s administrative purposes only, and any preprinted terms on Customer purchase orders will not add to, modify, or have any effect on the terms of this Agreement.
3.2 Customer shall, in addition to the other amounts payable under this Agreement, bear and pay all sales and other taxes, federal, state or otherwise, however designated that are levied or imposed by reason of the transactions contemplated hereunder, but excluding taxes on NICE’s income. Without limiting the foregoing, if any such taxes are imposed upon and paid by NICE, Customer shall reimburse NICE within thirty (30) days of receipt of an invoice from NICE for such amount. If, at any time, Customer claims that its purchase of Software or Services hereunder is exempt from any taxes, it shall be Customer’s responsibility to provide NICE with the appropriate tax exemption certificate(s). In the absence of valid proof of exemption, NICE reserves the right to charge Customer for, and Customer agrees to pay, the applicable taxes.
4. Warranties.
4.1 NICE Warranties for Cloud Services. During the Subscription Term, NICE warrants to Customer that: (a) NICE is the owner or authorized distributor of, and has the right to supply, the Cloud Services and Documentation; and (b) the Cloud Services do not contain any virus, Trojan horse, or other similar code knowingly introduced by NICE. Customer’s sole and exclusive remedy and NICE’s sole obligation for NICE’s breach of the warranty in this Section are as follows: (i) for a breach of the warranty in Section 4.1(a), the indemnity in Section 7 of the Agreement; and (ii) for a breach of the warranty in Section 4.1(b), the prompt removal by NICE of any such virus or disabling code at NICE’s sole cost and expense.
4.2 NICE Warranty for Professional Services. NICE warrants that Professional Services will be performed in a professional and workmanlike manner, consistent with reasonable and generally accepted professional standards and practices prevailing. Customer’s sole and exclusive remedy and NICE’s sole obligation for NICE’s breach of the warranty in this Section is NICE’s reperformance of the non-conforming Professional Services, provided that Customer notifies NICE of a non-conformity in this Section during the thirty (30) day period following NICE’s completion of the applicable Professional Services.
4.3 NICE Warranty for On-Premise Software. NICE warrants that the Software will operate substantially in accordance with the applicable Documentation during the ninety (90) day period beginning on the date on which the Software becomes available for download by Customer via NICE’s electronic software delivery system (“Warranty Period”). Customer’s sole and exclusive remedy and NICE’s sole obligation for NICE’s breach of the warranty in this Section during the Warranty Period shall be, in NICE’s sole discretion and at no charge to Customer, to correct or replace such Software so that it complies with the warranty set forth in this Section.
4.4 NICE’s Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR A SCHEDULE, (a) NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY NICE TO CUSTOMER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHICH ARE SPECIFICALLY EXCLUDED; AND (b) NICE DOES NOT WARRANT THAT ANY INFORMATION, COMPUTER PROGRAM, NICE’S EFFORTS OR ANY SOFTWARE OR SERVICES PROVIDED BY NICE OR ANY INFRASTRUCTURE PROVIDER WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS, NOR DOES NICE WARRANT THAT THE OPERATION OF THE SOFTWARE OR ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
4.5 Customer Warranties. Customer warrants to NICE that: (a) Customer is the owner or authorized licensee of the Content, and has secured all necessary licenses, consents, authorizations and waivers for the use of the Content; (b) the Content and Customer’s use of the Cloud Services at all times complies with the terms of the Agreement and Orders as applicable; and (c) Customer shall not use the facilities or capabilities of the Cloud Services to conduct any illegal activity or engage in any other activity which infringes upon the rights of NICE or any third party. If Customer breaches any of the warranties contained in this Section, NICE may, in addition to any other rights it may have in law or equity, exercise its right to suspend Customer’s access to the Cloud Services.
5. License and Ownership.
5.1 The specific terms of the Services and Software use rights granted by NICE to Customer pursuant to this Agreement will be documented in one or more Orders or SOWs; provided that NICE will grant to Customer a non-exclusive, non-transferable, non-sublicensable, limited right to use the Services, Software and Documentation for Customer’s internal business purposes, or as may otherwise be set forth in the applicable Order or SOW.
5.2 No title or ownership of the Services or Software shall be transferred to Customer by way of this Agreement or the applicable Order or SOW. NICE has sole right to and ownership of, all intellectual property rights in and to: (a) the Services and Software and Documentation, and all modifications, enhancements, improvements, adaptations, translations; (b) the trademarks, service marks, and trade names associated with the Services or Software; (c) Resulting Information; and (d) all other NICE supplied material developed for use in connection with the Services or Software generally, exclusive of the Content.
5.3 The Services and Software contain material that is protected by United States and international copyright law and trade secret law, and by international treaty provisions. All rights not expressly granted to Customer herein are reserved to NICE. Customer shall not remove any proprietary notice of NICE from any copy of the Software. Customer may make a reasonable number of copies of the Documentation, provided such reproductions shall include any copyright or proprietary labels, legends or notices placed upon or included in the Documentation by NICE. Customer may make one (1) back-up archival copy of the Software, provided Customer reproduces all confidentiality and proprietary notices on such copy.
5.4 Customer has sole ownership of the Content, including all intellectual property rights related thereto. NICE is not responsible for validating the Content for accuracy, correctness or usability. Customer grants to NICE a limited, non-exclusive, non-sublicensable, non-transferable license to use, copy, store and display the Content to provide the Services to Customer, and for the purpose of improving and enhancing the overall user experience of the Services. Customer acknowledges and consents that NICE may share the Content with its Affiliates. NICE will not sell, rent, or lease Content to others.
5.5 Customer shall not: (a) publish, disclose, copy, rent, lease, modify, loan, distribute, sell, resell, transfer, assign, alter or create derivative works based on the Services or Software or any part thereof; (b) reverse engineer, decompile, translate, adapt, or disassemble the Services or Software including to: (i) build or create a competitive product or service, and (ii) build or create a product or services using similar ideas, features, functions or graphics of the Services or Software, nor shall Customer attempt to create the source code from the object code for the Software; (c) permit any third party to access the Services or Software except as expressly permitted herein or under an Order or SOW; or (d) create any unauthorized Internet “links” to the Cloud Services or “frame” or “mirror” any content of the Cloud Services.
The activities described in Section 5.5(b) above are prohibited, except as and to the extent expressly authorized by applicable law, and solely in the event that the reproduction of the object code of the Software and translation of its form are necessary to obtain the information required to achieve the interoperability of the Software with other programs. In such circumstances, Customer shall inform NICE in writing, and NICE shall notify Customer within ten (10) business days from receipt of Customer’s notice that: (i) NICE will perform the work in order to achieve such interoperability and invoice Customer accordingly based on NICE’s then-current rates and policies (time, materials, travel), or (ii) Customer itself is entitled to undertake those actions, but only to the extent permitted by such applicable law and required to achieve such interoperability.]
Data Protection. If NICE processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the Parties record their intention that the Customer shall be the data controller and NICE shall be a data processor and in any such case: (a) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to NICE so that NICE may lawfully process the personal data in accordance with this Agreement on the Customer’s behalf; (b) the Parties shall comply with the data processing terms and conditions in Annex 1.
5.6 Customer is solely responsible for monitoring its use of the Services or Software for possible unlawful or fraudulent usage, and shall notify NICE immediately if it becomes aware or has reason to believe that the Services or Software are being fraudulently used. Customer acknowledges and agrees that its failure to notify NICE may result in the suspension of Customer’s right to use and access the Services or Software.
6. Confidential Information.
6.1 The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and secure and shall use at least the same standard of care to protect the Disclosing Party’s Confidential Information as the Receiving Party employs for the protection of its own proprietary information of a similar nature, but in no event less than a reasonable standard of care. The Receiving Party will not disclose the Disclosing Party’s Confidential Information to any third party and shall not use or reproduce in any form the Disclosing Party’s Confidential Information, except as required to exercise its rights and discharge its responsibilities set forth in this Agreement. The Receiving Party shall promptly notify the Disclosing Party in writing of any actual or suspected loss or unauthorized use, disclosure, or access of the Disclosing Party’s Confidential Information of which it becomes aware, and take all steps necessary to limit, stop, or otherwise prevent such loss or unauthorized use, disclosure, or access.
6.2 The term “Confidential Information” does not include any information as to which the Receiving Party is able to demonstrate: (a) is, or after the date of disclosure under this Agreement becomes, generally available to the public other than as a result of any actions or omissions of the Receiving Party; (b) was already known by the Receiving Party prior to the time of disclosure under this Agreement; (c) was disclosed to the Receiving Party on a non-confidential basis by a third party that did not owe an obligation of confidentiality to the Disclosing Party; or (d) is developed by the Receiving Party, independently without use of or reference to the Disclosing Party’s Confidential Information.
6.3 The Receiving Party will restrict the possession, knowledge, and use of the Disclosing Party’s Confidential Information to: (a) its and its Affiliates’ officers, directors, employees, consultants, and subcontractors who have a need to know such Confidential Information for purposes directly related to the exercise of its rights and discharge of its responsibilities as set forth in this Agreement; and (b) external auditors and legal advisors (collectively, “Representatives”). The Receiving Party’s disclosure of the Disclosing Party’s Confidential Information to its Representatives shall not require the prior written consent of the Disclosing Party, however, prior to any such disclosures, the Receiving Party will inform the Representatives of the confidential nature of the Disclosing Party’s Confidential Information and the non-disclosure requirements and limitations on use set forth herein. The Receiving Party shall take reasonable actions, legal or otherwise, necessary to cause its Representatives to comply with the provisions of this Section 6 and to prevent any unauthorized disclosure of the Disclosing Party’s Confidential Information by any of them. . The Receiving Party shall be responsible for the acts and omissions of its Representatives with respect to the Disclosing Party’s Confidential Information.
6.4 Notwithstanding anything to the contrary contained herein, the Receiving Party may disclose Confidential Information of the Disclosing Party pursuant to an order made pursuant to applicable law, regulation or legal process, provided that: (a) to the extent permitted under applicable law, the Receiving Party gives the Disclosing Party prompt written notice of such order so that the Disclosing Party has an opportunity to seek a protective order, confidential treatment, or other appropriate remedy to such order; (b) the Receiving Party provides the Disclosing Party with all reasonable assistance, at the Disclosing Party’s expense, in opposing such required disclosure or seeking a protective order or confidential treatment for all or part of such Confidential Information; and (c) the Receiving Party discloses only such portion of the Confidential Information as is either permitted by the Disclosing Party or required by the court, tribunal, governmental agency or other authority, subject to any protective order or confidential treatment obtained by the Disclosing Party.
6.5 Each Party acknowledges that the unauthorized disclosure or use of the Disclosing Party’s Confidential Information by the Receiving Party will irreparably damage the Disclosing Party in such a way that adequate compensation could not be obtained from monetary damages alone in an action at law. Accordingly, the actual or threatened unauthorized disclosure or use of any Confidential Information shall give the Disclosing Party the right to seek injunctive relief restraining such unauthorized disclosure or use, without the necessity of proving actual damages, in addition to any other remedy otherwise available to the Disclosing Party.
6.6 Upon the written request of the Disclosing Party, the Receiving Party shall: (a) promptly return to the Disclosing Party such of its Confidential Information (and all copies thereof) as the Disclosing Party may request, or upon written request from the Disclosing Party, destroy such Confidential Information and provide the Disclosing Party with written certification of such destruction; and (b) cease all further use of such Confidential Information.
7. Indemnification.
7.1 NICE Indemnification of Customer. NICE shall indemnify, defend, and hold harmless Customer from and against any Losses resulting from or arising out of a Claim against Customer to the extent that such Claim alleges the infringement of such third party’s U.S. patent or copyright by the Services or Software. The foregoing indemnity shall not apply if the infringement arises out of: (a) specifications or designs furnished by Customer and implemented by NICE at Customer’s request; (b) the Services or Software being modified by, combined with, added to, interconnected with or used with any equipment, apparatus, device, data, software or service not supplied or approved by NICE in writing; (c) the modification to Services or Software by any person or entity other than NICE; or (d) use of Services or Software other than in accordance with its Documentation.
7.2 If a Claim for which Customer is entitled to be indemnified under Section 7.1 above has occurred, or in NICE’s opinion is likely to occur, NICE shall, at NICE’s expense, do one of the following: (a) procure for Customer the right to continue using the affected Services or Software; (b) replace with non-infringing alternates or modify the relevant Services or Software so that it becomes non-infringing but its functionality after modification is substantially equivalent; (c) accept the return of the affected Software, and refund to Customer the fees for the affected Software amortized by an equal annual amount over a three (3) year period beginning from the date of shipment of the affected Software; or (d) cease providing the Services and refund any prepaid fees applicable to the period after the Services has ceased. The collective obligations of NICE pursuant to Section 7.1 and this Section 7.2 state the sole and exclusive liability of NICE, and Customer’s sole and exclusive remedy, with respect to intellectual property infringement or misappropriation.
7.3 Customer Indemnification of NICE. Customer shall indemnify, defend, and hold harmless NICE from and against any Losses resulting from or arising out of any Claim brought against NICE alleging Customer’s violation of applicable laws in connection with Customer’s use of the Content, Services or Software.
7.4 Indemnification Procedure. Promptly after a Party obtains knowledge of the existence or commencement of a Claim for which it is entitled to be indemnified under Section 7.1 above (the “Indemnified Party”), the Indemnified Party will notify the other Party (the “Indemnifying Party”) of such Claim in writing, provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party except to the extent that the rights of the Indemnifying Party are actually prejudiced or liability increased thereby. The Indemnifying Party will have exclusive control of the defense and settlement of such Claim; provided, however, that the Indemnified Party may join in the defense and settlement of such Claim and employ counsel at its own expense, and will reasonably cooperate with the Indemnifying Party in the defense and settlement of such Claim. The Indemnifying Party may settle any Claim without the Indemnified Party’s written consent unless such settlement: (a) does not include a release of all covered claims pending against the Indemnified Party; (b) contains an admission of liability or wrongdoing by the Indemnified Party; or (c) imposes any obligations upon the Indemnified Party other than an obligation to cease using any infringing items.
8. Limitation of Liability.
8.1 SUBJECT TO SECTION 8.2 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR: (a) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING LOSS OF USE, LOSS OF OR DAMAGE TO RECORDS OR DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOST REVENUE AND/OR PROFITS, SUSTAINED OR INCURRED REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, STRICT LIABILITY, INDEMNITY (EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT) OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND REGARDLESS OF WHETHER SUCH PARTY HAD RECEIVED NOTICE OR HAD BEEN ADVISED, OR KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; OR (b) DIRECT DAMAGES IN EXCESS OF THE AMOUNTS PAYABLE UNDER THE SCHEDULE, PURCHASE ORDER, OR STATEMENT OF WORK UNDER WHICH SUCH LIABILITY AROSE.
8.2 The limitations in Section 8.1 above shall not apply to: (a) damages occasioned by the breach by either Party, including by their Representatives, of its obligations of confidentiality under Section 6 above; (b) either Party’s indemnification obligations under Section 7 above; or (c) matters that cannot be excluded or limited by applicable law.
9. Term and Termination.
9.1 This Agreement shall commence on the Effective Date and continue until terminated in accordance with this Section 9 (the “Term”). Unless otherwise provided herein or in an Order, the termination of this Agreement will not operate to terminate any existing Orders or SOWs, and the terms of this Agreement shall continue to govern such Orders and SOWs until completion or the earlier termination of such Orders and SOWs in accordance with this Agreement.
9.2 Either Party may terminate this Agreement, an Order or a SOW for cause, upon written notice to the other Party setting forth the effective date of termination, if the other Party fails to cure a material breach of this Agreement, an Order or a SOW, respectively, within thirty (30) days after receiving such notice.
9.3 This Agreement will terminate, effective upon delivery of written notice by either Party to the other Party: (a) upon the institution of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of debts of the other Party; (b) upon the making of an assignment for the benefit of creditors by the other Party; or (c) upon the dissolution of the other Party.
9.4 Any provision of this Agreement, an Order or a SOW that contemplates performance or observance subsequent to the termination of such Order or SOW and any other provision that by its nature may reasonably be presumed to survive any termination of this Agreement, an Order or a SOW shall survive its termination.
10. Notices.
With respect to notices permitted or required under this Agreement related to the following matters, such notices must be in writing and delivered by personal delivery, by registered or certified mail (return receipt requested), or by internationally recognized overnight delivery service: (a) notices of breach; (b) notices of termination; and (c) notices regarding actual or potential legal action, including claims subject to indemnification hereunder. Notices will be deemed given: (i) on the date of delivery when delivered personally, (ii) one (1) business day after deposit for next day delivery with an internationally recognized overnight delivery service, and (iii) on the date of delivery when mailed by registered or certified mail (return receipt requested). Notices other than those described in Sections 10(a) through 10(c) may also be delivered by email, and will be deemed given upon personal reply acknowledging receipt. Notices will be sent to the addresses below or to such other address as either Party may specify in writing.
11. General Provisions.
11.1 Neither Party shall have the right to assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other Party. Notwithstanding the foregoing, NICE may assign its rights and obligations under this Agreement to an Affiliate, or to any successor by way of merger, acquisition, or sale of all or substantially all of NICE’s assets.
Customer must obtain NICE’s written consent prior to: (i) moving the NICE Software from the location designated in the corresponding Purchase Order or (ii) assigning this Agreement or any licenses to NICE Software granted hereunder to any third party or Customer Affiliate. Customer hereby acknowledges that as a condition to such consent NICE may require Customer or the proposed assignee, if applicable, to agree to update the NICE Software to the then-current version, pay NICE’s then-current license fees and purchase a one-year Maintenance Services at NICE’s then-current rate. In the case of an assignment or transfer to a third party or a Customer Affiliate, NICE may require the assignee to execute its then-current master relationship agreement. Except as otherwise specified in writing by NICE in its consent, Purchase Orders submitted by any assignee will be in accordance with NICE’s then-current list price. Any attempted assignment, whether by operation of law, as a result of any change in control of Customer or otherwise without complying with this Section shall be null and void.]
11.2 NICE has existing arrangements with certain technology service providers (“Augmented Resource(s)”). Augmented Resources provide NICE with the ability to supplement its employee workforce providing Services to NICE’s customers. Notwithstanding anything to the contrary contained in Section 11.1 above or in an Order, Customer acknowledges and agrees that NICE may use a combination of its employees and Augmented Resources to assist NICE with the delivery of certain Services under this Agreement. NICE will remain responsible to Customer for the performance and conduct of such Augmented Resources.
11.3 It is expressly agreed that the Parties are acting hereunder as independent contractors and under no circumstances shall any of the employees of one Party be deemed the employees of the other Party for any purpose. This Agreement shall not be construed as authority for either Party to act for the other Party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other Party except to the extent and for the purposes expressly provided for and set forth herein.
11.4 Each Party agrees that it will not, directly or indirectly, for a period commencing on the Effective Date and ending one (1) year following the expiration of the Term, without the prior written consent of the other Party, solicit or employ any person who, at any time during the Term, were employees of the other Party or its Affiliates who performed duties related to the Services performed hereunder, nor will such Party solicit or encourage any such person to terminate their employment relationship with the other Party or its Affiliate.
11.5 Neither Party shall be deemed to be in default of any provision of this Agreement, or for failure in performance of its obligations hereunder (excluding payment obligations), resulting from acts or events beyond the reasonable control of such Party, including acts of God, civil or military authority, acts or threats of terrorism, civil disturbance, war, riot, strike or labor dispute (not related to either Party’s workforce), fires, floods, infectious disease, or act of government (each a “Force Majeure Event”). Such Force Majeure Event, to the extent it prevents a Party’s performance or any other undertaking under this Agreement, will extend the time for performance for as many days beyond the applicable performance date as is required to correct the effects of such Force Majeure Event.
11.6 NICE shall have the right to use or incorporate into the Services and Software any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
11.7 Words importing the singular include the plural, words importing any gender include every gender and words importing persons include entities, corporate and otherwise; and (in each case) vice versa. The section headings are for ease of reference only and shall not affect the interpretation or construction of this Agreement. Whenever the terms “including” or “include” are used in this Agreement in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase “but not limited to” or words of similar effect) that reference shall be interpreted to be illustrative only, and shall not be interpreted as a limitation on, or an exclusive enumeration of the items within such classification.
11.8 All provisions of this Agreement are severable, and the unenforceability or invalidity of any of the provisions of this Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement.
11.9 Each Party shall perform its obligations in a manner that complies with all applicable laws and regulations, compliance with which is required of such Party or for which such Party is responsible hereunder.
11.10 The Software may be subject to export laws and regulations of the U.S. and other jurisdictions, and Customer shall comply with all applicable export and import control laws and regulations. Customer shall not permit access to, or use of, the Software by a person or in a country embargoed by, or in violation of, any applicable export laws or regulation.
11.11 No provision of this Agreement shall be deemed waived and no breach shall be deemed excused unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. No consent by either Party to, or waiver of, a breach by the other, whether express or implied, shall constitute consent to, waiver of, or excuse for any different or subsequent breach.
11.12 This Agreement shall be governed, construed, and interpreted in accordance with the laws of England and Wales. Both Parties hereby consent and submit to the jurisdiction of the courts of England and Wales Both Parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”), and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to this Agreement. To the extent not prohibited by applicable law that cannot be waived, the Parties hereby waive, and covenant that they will not assert any right to trial by jury in any action arising in whole or in part under or in connection with this Agreement.
11.13 In the event of any conflict or inconsistency between the terms of: (a) this Agreement and any Order or SOW, the terms of the Agreement shall prevail; except to the extent that an Order or SOW specifically states that specified terms in the Order or SOW supersede specified terms in the Agreement, in which case such superseding terms will apply only to that Order or SOW; and (b) any Order and any SOW, the terms of the Order shall prevail; except to the extent that: a SOW specifically states that specified terms in that SOW supersede specified terms of the applicable Order, in which case such superseding terms will apply only to that SOW. The Parties agree that if a URL contained in this Agreement does not work or has stopped working, it will notify the other party and NICE will then repair or create a new URL to replace the URL.
11.14 Following the Effective Date, NICE shall have the right to issue a press release regarding its relationship with Customer (the “Press Release”). Customer agrees to contribute a quote from a Customer employee involved with the relationship with NICE to be used in the Press Release. NICE shall provide a draft of the Press Release to Customer for its review and, within five (5) business days following its receipt of the draft, Customer shall provide NICE with any proposed changes to the Press Release. Notwithstanding anything to the contrary contained herein, NICE agrees that it will not make, issue, or release any public statement (including the Press Release), announcement, or acknowledgement of the existence of, or reveal the status of, the Agreement or the terms or transactions provided for herein, without first obtaining the written consent of Customer.
11.15 This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute a single agreement. Additionally, the Parties agree that: (a) this Agreement, including any transactional documents related to this Agreement, and any amendments thereto, may be signed using electronic signatures facilitated by a U.S. E-SIGN Act-compliant (i.e., the Electronic Signatures in Global and National Commerce Act - ESIGN, Pub.L. 106-229, 114 Stat. 464, enacted June 30, 2000, 15 U.S.C. ch.96) electronic signature provider (“e-signatures”); (b) e-signatures shall have the same effect as original signatures; and (c) the Parties are subject to the provisions of the U.S. E-SIGN Act.
Subject to the following sentence, by affixing their respective electronic signatures hereto by means of DocuSign’s electronic signature system, the signatories below acknowledge and agree that they intend to bind the respective Parties on behalf of whom they are signing. The Parties shall each nominate their signatories and their respective email addresses and, except where such nominated signatory is a victim of fraud or misrepresentation, the affixing of an electronic signature and confirmation of intent to be bound by such electronic signature emanating from such person’s nominated email address shall constitute valid signature by the signatory below and shall be construed as the signatory having signed the document as an original in manuscript. Each Party warrants that the person signing this Agreement on behalf of that Party has the requisite authority to bind that Party and that they consent to electronic signature by means of DocuSign’s electronic signature system.]
11.16 This Agreement, any Orders or SOWs executed hereunder represent the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersede any other agreement or understanding, written or oral, that the Parties may have had with respect thereto. No statement or inducement with respect to the subject matter by either Party or by any agent or representative of either Party, which is not contained in this Agreement, shall be valid or binding between the Parties. No provision of this Agreement may be modified or amended except by a written instrument duly executed by each of the Parties. Any such modifications or amendments shall not require additional consideration to be effective.
