END USER LICENSE AGREEMENT
SUPPLIER MASTER SOFTWARE LICENSE AND SERVICES AGREEMENT
*** CONFIDENTIAL ***
End User Information
End User name:
Address:
Installation Site(s) Address:
Telephone number:
Fax number:
State of Incorporation:
Notices shall be sent:
To End User at the following address (if different from above):
To Supplier at the following address:
Name:
Address:
Telephone number:
Fax number:
Attn:
Warranty and Maintenance/Support
WARRANTY PERIOD
Warranty start date:
Delivery date
Warranty end date:
90 days from delivery date
MAINTENANCE AND SUPPORT PERIOD
Maintenance and Support start date:
Delivery date
Maintenance and Support end date:
1 year from delivery date
Signatures
We have read the provisions of this Agreement together with any schedules, exhibits or other documents referred to therein and confirm that all
of the provisions of this Agreement are ACCEPTED.
IN WITNESS HEREOF, the parties have caused this Agreement to be executed by duly authorized representatives of the parties as of the
Effective Date.
Supplier’s Name(“Supplier”)
[End User’s name] (“End User”)
By: __________________________________________________
By: _________________________________________________
Name:
Name:
Title:
Title:
Date:
Date:
SUPPLIER MSLSA
CONFIDENTIAL INFORMATION
Page 1 of 16
1. Preamble and Recitals.
(i) “License Fee” means the fee to be paid to Supplier to entitle
(a) This Master Software License and Services Agreement
End User to use the Licensed Software in accordance with the
(“Agreement”) is entered into as of this ___ day of ___, 200___
provisions of this Agreement.
(“Effective Date”) by and between Supplier and End User identified (j) “Maintenance and Support” means the maintenance and
on the cover page hereof (each a “party” and collectively the
support service purchased by End User that provides (i)
“parties”).
Maintenance, Minor and Major Releases, if any, and appropriate
(b) This Agreement incorporates by this reference any mutually
Documentation to the Licensed Software; (ii) telephone or email
agreed upon attachments referencing this Agreement, including
assistance with respect to the Licensed Software between 8:00 AM
without limitation, any Statements of Work and the following
and 8:00 PM Eastern Standard Time, Monday through Friday and
Schedules (collectively, “Schedules”)
(iii) End User access to Supplier support personnel via a message
- Schedule A (Maintenance and Support Terms);
pager twenty-four (24) hours per day, seven (7) days per week, for
- Schedule B (Price Schedule for Licensed Software);
“Critical” issues as defined in Schedule A (“Maintenance and
- Schedule C (End User Developer License Addendum); and
Support Terms”). Telephone assistance shall comprise: (A)
- Schedule C-1 (Supplier Run-Time Licenses).
clarification of functions and features of the Licensed Software, (B)
The provisions of this Agreement shall apply to all Orders issued by
clarification of Documentation pertaining to the Licensed Software
End User for Licensed Software, Maintenance and Support and
and (C) error verification, analysis and resolution.
Services. Unless otherwise mutually agreed upon in writing (k) “Maintenance Release” means a Release which comprises fixes
(including in a Schedule), the provisions of this Agreement shall
to previously determined defects, but does not include new features
supersede any conflicting or additional provisions on any Order or
or functions, or changes to the architectural design of the Licensed
Schedule.
Software.
(l) “Major Release” means a Release which comprises a substantial
NOW, THEREFORE, in consideration of the mutual promises and
change to the Licensed Software content and fixes to previously
covenants contained herein, the sufficiency of which is hereby
determined defects, and may include architectural changes.
acknowledged, the parties agree to the following provisions:
(m) “Minor Release” means a Release which comprises new features
and functions, and fixes to previously determined defects, but
2. Definitions. For purposes of this Agreement, the following terms
maintains the same Licensed Software architecture as the Major
shall have the following meanings:
Release on which it is based.
(a) “Agent Workstation” or “Seat” means a micro-computing unit (n) “Order(s)” means the document submitted by End User to
or other assemblage of computer equipment that is enabled to allow
Supplier, pursuant to which End User orders Licensed Software and
use of the Licensed Software by a maximum of one (1) agent at any
Maintenance and Support. An Order shall include: (i) effective date
given time. An Agent Workstation may be configured to allow
of Order; (ii) incorporation of this Agreement by reference; (iii)
multiple agents working in shifts to use the Licensed Software;
Licensed Software and version being ordered; (iv) quantity of Agent
provided that it is not enabled for concurrent use. Once enabled, a
Workstations and/or Ports, as applicable, and price; (v) Designated
workstation is defined as an Agent Workstation until disabled,
Site and Designated CPU; (vi) billing address; (vii) ship to location
whether or not it is in active use by any End User agent.
and (viii) thirty (30) day payment terms. All Orders are irrevocable
(b) “Annual Maintenance Fee” or “AMF” means the annual fee to
and non-refundable except as provided herein. Supplier reserves the
be paid to Supplier to entitle End User to access and use the
right to waive any or all of the aforementioned requirements either
Maintenance and Support Services in accordance with the provisions
in writing or by fulfilment of the Order.
of this Agreement.
(o) “Port” means a communication path enabled to support a single
(c) “Core Training” means Supplier foundation training such as the
user session specific to one (1) application.
“Certified Supplier Engineer” course or any Supplier equivalent (p) “Release” means a version of any Licensed Software containing
course.
functional enhancements, modifications, extensions, error
(d) “Current Version” means the most current version of the latest
corrections or bug fixes. Releases are not provided as part of the
Major Release of the Licensed Software, and the most current
Licensed Software unless End User has timely paid the applicable
version of the penultimate Major Release of such Licensed Software.
Annual Maintenance Fees in accordance with Section 5.
(e) “Derivative Work” means a new or modified work that is based (q) “Statement of Work” or “Letter of Engagement” means a
on or derived from all or any part of the Licensed Software,
mutually executed document describing the professional services
including without limitation, a revision, modification, translation,
to be provided by Supplier pursuant to provisions of this
localization, adaptation, abridgment, port, condensation or
Agreement.
expansion, in any form, of the Licensed Software, or any work that
would infringe any copyright if created without the authorization of 3. License.
the copyright holder or any other intellectual property right in the (a) Subject to the provisions of this Agreement, Supplier grants to
Licensed Software or that uses trade secrets or other proprietary
End User a perpetual (except as otherwise expressly set forth
information embodied in or used by the Licensed Software.
herein), non-transferable, non-exclusive, revocable license, without
(f) “Designated CPU” means the designated hardware upon which
any right to sublicense, to use the Licensed Software described in a
the Licensed Software is installed.
valid Order issued by End User, on the Designated CPU at the
(g) “Designated Site” means that single facility of End User at
Designated Site within the United States and Canada, solely for the
which the Licensed Software is installed and which shall be
purpose of End User’s internal business operations. Except as
identified in the Order.
expressly set forth in this Section 3(a), no other right or license of
(h) “Documentation” means applicable technical published manuals
any kind is granted by Supplier to End User hereunder with
that accompany the Licensed Software delivered to End User.
respect to the Licensed Software, and all rights not expressly
granted herein (including without limitation, development rights
and distribution rights) are reserved by Supplier. Without limiting
SUPPLIER MSLSA
CONFIDENTIAL INFORMATION
Page 2 of 16
the generality of the foregoing, End User shall not have rights in
or to software functionality within Supplier Products enabled by
non-Supplier
connectors/adapters/interfaces/
integrations
without paying applicable License Fees and AMFs. Such license is
granted separately from any professional services proposal End User
may request or receive from Supplier, and does not require End
User to purchase such services.
(b) The Licensed Software is licensed per Agent Workstation or Port,
as applicable, or in accordance with a license model identified in
Supplier’ applicable standard price list as of the date of the Order.
End User may use the Licensed Software for the number of Agent
Workstations or Ports, as applicable, specified in an applicable
Order, or as otherwise mutually agreed upon in writing.
(c) Without limitation of Section 3(a), End User shall not directly or
indirectly, without the prior written consent of Supplier or unless
otherwise expressly provided herein: (i) copy or modify all or any
portion of the Licensed Software, except for one (1) copy of the
Licensed Software for normal backup and archival purposes;
(ii) decompile, disassemble or otherwise reverse engineer the
Licensed Software or any portion thereof, or determine or attempt
to determine any source code, algorithms, methods, interfaces, data
structures or techniques embodied in or used by the Licensed
Software or any portion thereof (except to the extent, if at all,
expressly permitted by applicable law, notwithstanding a contractual
obligation to the contrary); (iii) create any Derivative Works;
(iv) distribute, disclose, market, sell, rent, lease, time-share, assign,
sublicense, pledge, encumber or otherwise transfer or make available
the Licensed Software or rights granted under this Agreement, as
applicable, in whole or in part, to any third party; (v) remove or alter
any copyright, trademark, trade name, confidentiality or other
proprietary notices, legends, symbols or labels appearing on or in
copies of the Licensed Software; (vi) perform, or release the results
of, benchmark tests or other comparisons of the Licensed Software
with other programs; (vii) transfer the Licensed Software to any site
other than the Designated Site; (viii) permit the Licensed Software to
be used in connection with a service bureau or otherwise used for
processing the data of any third party; (ix) incorporate the Licensed
Software or any portion thereof into any other program or product;
(x) use the Licensed Software other than in accordance with the
provisions of this Agreement; and (xi) use Supplier Enterprise
Telephony Software for contact center purposes.
(d) If the Designated CPU upon which the Licensed Software is
installed becomes inoperable, End User may, upon
contemporaneous written notification to Supplier, temporarily
transfer the Licensed Software to a new Designated CPU at the
Designated Site, until the initial Designated CPU becomes operable.
End User shall not replace the Designated CPU permanently
without the prior written consent of Supplier.
(e) Any Hyperion software provided with Contact Center Analyzer is
limited to use only with Contact Center Analyzer. Without limiting
the foregoing, End User may not use the Hyperion software or any
other third party programming language tools or products to create
additional applications designed to be used with Hyperion software.
4. Delivery and Acceptance. Supplier shall deliver the Licensed
Software and Documentation to End User after execution of this
Agreement. In the case of physical shipment, delivery shall be
deemed to occur at the Supplier shipping point. In the case of
electronic delivery, delivery shall occur when Licensed Software has
been uploaded onto the FTP site and End User is provided all
necessary passwords for download from such site. Acceptance shall
be deemed to occur upon delivery of the Licensed Software.
SUPPLIER MSLSA
5. Maintenance and Support.
(a) Unless otherwise specified in a Schedule or Order pursuant to this
Agreement, End User shall purchase and receive Maintenance and
Support (as described in Section 2(k) and Schedule A) for the
Licensed Software as of the delivery date of the Licensed Software.
The AMF shall be as set forth on Supplier’ applicable standard price
list as of the date of the Order.
(b) Supplier shall use commercially reasonable efforts to correct
material errors in the Licensed Software, including any reproducible
programming error attributable to Supplier, in accordance with the
“Technical Support Escalation Procedures” set forth in Schedule A.
In the event that remote resolution is not possible, Supplier may, if
mutually agreed by the parties, attend Designated Site to attempt
such resolution.
(c) Supplier shall only provide Maintenance and Support for the
Current Version of the Licensed Software. Supplier shall not
provide Maintenance and Support relating to problems arising out
of: (i) changes to the operating system or environment which
adversely affects the Licensed Software; (ii) any alterations of or
additions to the Licensed Software performed by parties other than
Supplier or at the direction of Supplier; (iii) use of the Licensed
Software in a manner for which it was not designed; (iv) accident,
negligence or misuse of the Licensed Software; (v) operation outside
of the environment or equipment for which the Licensed Software
was designed and licensed; (vi) interconnection of the Licensed
Software with other software not supported by Supplier; (vii)
modification of the database structure designed to be used by the
Licensed Software or (viii) introduction or extraction of data into, or
from any Supplier Licensed Software database, by any means other
than the use of Supplier application programming interfaces (or
documented application program interfaces published in Developer
Materials for purposes of Schedule C (“End User Developer License
Addendum”).
(d) End User shall appoint two (2) employees to initiate and manage
Maintenance and Support inquiries with Supplier (“Designated
Contacts”). Designated Contacts shall attend Supplier Core
Training for the Licensed Software at the then-current published
training fees. Designated Contacts shall have competent knowledge
of the technical infrastructure where the Licensed Software is
installed. End User shall maintain two (2) Designated Contacts for
as long as it receives Maintenance and Support. Upon the
reasonable prior written consent of Supplier, End User may increase
the number of Designated Contacts.
(e) Supplier shall be entitled to charge reasonable additional fees for
all support services provided beyond the scope of Supplier’ support
obligations set forth in this Section 5 and Schedule A.
(f)Subject to the provisions of Section 9, Maintenance and Support
shall be provided to End User for a period of twelve (12) months
commencing on the Effective Date (“Initial Maintenance Term”)
and for consecutive twelve (12) month terms commencing on each
anniversary of the Effective Date (“Renewal Date”) (each such term
being a “Renewal Maintenance Term”), as agreed upon by the parties
(collectively, “Maintenance Period”). Maintenance and Support
provisions of this Agreement shall expire at the end of the
Maintenance Period unless renewed by the parties by issuance and
acceptance of an Order. Supplier shall notify End User of an
impending expiration at least forty-five (45) days prior to the last date
of the Initial Maintenance Term or a Renewal Maintenance Term
(“Expiration Date”) and End User shall, at least thirty (30) days prior
to the then-current Expiration Date, either notify Supplier of its
intent not to renew or issue a Maintenance and Support renewal
Order.
CONFIDENTIAL INFORMATION
Page 3 of 16
(g) If Maintenance and Support is terminated or expires, the parties
Statement of Work for professional services that may be issued
may agree in writing to subsequently renew Maintenance and
against this Agreement or any work performed thereunder. All paySupport. In such case, as a prerequisite to renewal, End User shall
ments for fees and expenses with respect to Services shall be made
pay all Maintenance and Support fees that would have been due had
within thirty (30) days of the date of invoice.
Maintenance and Support not terminated or expired.
(e) End User shall be responsible for and pay all taxes, duties and
levies, excluding only taxes based solely on Supplier net income.
6. Professional Services.
End User shall pay to Supplier all fees and expenses due under this
(a) Supplier shall provide the professional services described in a
Agreement without any deduction or withholding of any kind. If
Statement of Work executed by the parties (collectively, the
End User is required by applicable law to deduct or withhold any
“Services”).
amount from the payment of the fees, the fees that End User shall
(b) Supplier shall control the manner by which the Services are perpay to Supplier shall be increased by the amount necessary to ensure
formed and may subcontract or assign any or all of its obligations
Supplier receives an amount equal to the fees which would have
and rights under this Agreement. Any such subcontract or
been payable had no deduction or withholding been required.
assignment of the Services is subject to End User's consent, which (f) Without prejudice to any other rights of Supplier under this
consent shall not be unreasonably withheld or delayed.
Agreement, fees or refund of expenses not received by Supplier by
(c) All Derivative Works, source and object code, specification,
the date due shall be subject to a charge of one and a half percent
designs, processes, techniques, concepts, improvements, discoveries
(1½%) per month, or the maximum charge permitted by law,
and inventions made or developed in connection with the Services
whichever is less. Further payment method instructions may be
(collectively, “Creations”) shall be the sole and exclusive property of
specified in End User’s invoice.
Supplier.
(d) End User is hereby granted a license to use the Creations solely in 8. Proprietary Rights. As between Supplier and End User, Supplier
connection with, and under the same provisions as, its use of the
retains all rights, title and interest, including without limitation, all
Licensed Software. Support of Creations is provided on a time and
patent rights, copyrights, trademarks and trade secrets, in and to the
materials basis under the provisions of this Section 6; Creations are
Licensed Software, including without limitation, any copy or portion
not supported under Section 5 or under any other Maintenance and
thereof, and any Derivative Work. End User agrees to take any
Support services provided for Supplier Products.
action reasonably requested by Supplier to evidence, maintain,
(e) End User shall make available in a timely manner at no charge to
enforce or defend the foregoing rights, and agrees not to take any
Supplier all technical data, computer facilities, programs, files,
action to jeopardize, limit or interfere in any manner with Supplier’
documentation, test data, sample output, office space, services,
ownership of, and rights with respect to, the Licensed Software or
equipment or other resources reasonably required by Supplier to
any Derivative Work. End User hereby assigns to and, if applicable,
perform the Services. End User assumes the risk of any problems
waives in favour of Supplier (and shall cause its personnel, its
resulting from the content, accuracy, completeness and consistency
contractor(s) and agent(s) as the case may be to assign to and, if
of any data, materials and information supplied by End User.
applicable, waive in favour of Supplier), all rights (for the avoidance
(f)Unless otherwise stated in an applicable Statement of Work, End
of doubt, waiver includes non-performance of moral rights), title
User shall pay Supplier on a time and materials basis for the
and interest in and to (i) any modifications or improvements to the
Services in accordance with the fees set forth in the Statement of
Licensed Software or Derivative Works that are made by or for End
Work. Supplier shall invoice End User on a monthly basis as
User or its employees, agents or contractors (notwithstanding any
Services are performed. End User shall reimburse all reasonable
prohibitions to the contrary within this Agreement); (ii) any
travel and other expenses incurred by Supplier in performance of
invention or creation made by or for End User or its employees,
the Services.
agents or contractors that is based upon or uses all or any portion of
(g) Supplier cannot guarantee staffing levels unless End User gives a
the Licensed Software or the Proprietary Information (as defined
minimum two (2) weeks prior Notice of a project start date. In the
below) and (iii) any report, feedback or other information
event that End User provides a project start date, and such start date
concerning the Licensed Software provided by End User to Supplier
is delayed by more than five (5) days, Supplier cannot guaranty
hereunder. End User shall have only those rights in or to the
staffing without an additional two (2) weeks prior Notice of the new
Licensed Software and any Derivative Work expressly granted to
project start date. In the event of unscheduled delays during the
End User pursuant to this Agreement. Supplier shall reimburse End
course of a project not attributable to Supplier, Supplier cannot
User for all reasonably incurred direct costs of such transfer.
guarantee staffing or that a specific person shall continue to be
assigned to such project.
9. Termination.
(a) Either party may terminate this Agreement by Notice (and in the
7. Payment and Taxes.
case of Supplier, may revoke the license grant) if the other party (i)
(a) End User shall pay the License Fees within thirty (30) days of
fails to pay any amount due under this Agreement within thirty (30)
delivery of the Licensed Software. The License Fees set forth in this
days after Notice of such non payment or (ii) commits a material
Agreement shall be subject to change in accordance with Supplier’
non-monetary breach of this Agreement and such breach, if capable
applicable standard price list as of the date of the Order.
of being cured, is not cured within thirty (30) days of a Notice of
(b) End User shall pay the AMF for Maintenance and Support on or
termination. This Agreement may be terminated immediately upon
before the delivery date of Licensed Software and on or before the
Notice by either party if the other party: (A) violates Sections 3
Renewal Date, as applicable. Supplier may increase the AMF
(License), 6(c) (Professional Services), 8 (Proprietary Rights) or 13
effective on each Renewal Date by notifying End User at least forty(Proprietary Information); (B) terminates or suspends its business;
five (45) days prior to such Renewal Date.
(C) becomes insolvent, admits in writing its inability to pay its debts
(c) All payments hereunder shall be made in United States dollars.
as they mature, makes an assignment for the benefit of creditors or
(d) For clarification purposes, License Fees and AMFs are due under
becomes subject to direct control of a trustee, receiver or similar
the payment terms referenced herein and are not connected to any
authority or (D) becomes subject to any bankruptcy or insolvency
SUPPLIER MSLSA
CONFIDENTIAL INFORMATION
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proceedings or orders. In addition to rights to claims for damages
or injunctive relief legally available or provided hereunder, if Supplier
has terminated this Agreement pursuant to this Section 9(a), it shall
be entitled to revoke the license granted.
(b) If Supplier revokes the license grant and terminates this
Agreement, End User shall promptly (not to exceed ten (10) days)
deliver to Supplier or destroy all copies of the Licensed Software and
all Proprietary Information, including without limitation, all extracts
of the foregoing and all documents, notes and other materials
relating to End User’s testing and evaluation of the Licensed
Software, and shall furnish to Supplier within the same time period
an affidavit signed by an officer of End User certifying that that such
delivery or destruction has been fully effected. Payments made by
End User to Supplier hereunder, including Annual Maintenance
Fees, are non-refundable.
(c) Sections 1(b) (Preamble and Recitals), 2 (Definitions), 3(c)
(License), 6(c) (Professional Services), 7 (Payment and Taxes), 8
(Proprietary Rights), 9 (Termination), 10(d) (Warranty), 11 (Liability),
12 (Indemnification), 13 (Proprietary Information), 14 (Audit), and
16 (General) shall survive the expiration or any termination of this
Agreement. Termination of this Agreement by either party shall not
act as a waiver of any breach of this Agreement and shall not act as a
release of either party from any liability for breach of such party’s
obligations under this Agreement. Neither party shall be liable to
the other for damages of any kind solely as a result of terminating
this Agreement in accordance with its provisions, and termination of
this Agreement by a party shall be without prejudice to any other
right or remedy of such party under this Agreement or applicable
law.
Period; Supplier’ examination of the Licensed Software confirms
that such nonconformities exist and the Licensed Software has not
been (A) altered or modified; (B) subjected to negligence, or
computer or electrical malfunctions, or accident; or (C) used,
adjusted or installed other than in accordance with the
Documentation.
(c) Supplier warrants that it shall provide Maintenance and Support
and Services in a professional and workmanlike manner.
(d) EXCEPT FOR THE EXPRESS LIMITED WARRANTIES
SET FORTH IN THIS SECTION, SUPPLIER MAKES NO
WARRANTIES, WHETHER EXPRESS, IMPLIED OR
STATUTORY WITH RESPECT TO ANY LICENSED
SOFTWARE, MAINTENANCE AND SUPPORT OR ANY
SERVICES, AND SUPPLIER EXPRESSLY DISCLAIMS ANY
IMPLIED WARRANTIES OF MERCHANTABILITY/
MERCHANTABLE QUALITY OR FITNESS FOR A
PARTICULAR PURPOSE.
11. Liability.
(a) NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, REGARDLESS OF
THE FORM OR CAUSE OF ACTION WHETHER IN
CONTRACT OR TORT OR THE NUMBER OF CLAIMS,
AND WHETHER IN RESPECT OF A BREACH OR
DEFAULT IN THE NATURE OF A BREACH OF
CONDITION OR FUNDAMENTAL TERM OR A
FUNDAMENTAL BREACH: (A) NEITHER SUPPLIER NOR
ANY OF SUPPLIER’ SUPPLIERS OR LICENSORS SHALL
HAVE ANY LIABILITY TO END USER FOR ANY
ECONOMIC,
CONSEQUENTIAL,
INDIRECT,
INCIDENTAL OR SPECIAL DAMAGES (INCLUDING,
BUT NOT LIMITED TO, ANY LOST REVENUES OR
PROFITS) ARISING OUT OF THIS AGREEMENT, AND (B)
SUPPLIER’ ENTIRE LIABILITY FOR ANY CLAIM
ARISING OUT OF THIS AGREEMENT (OTHER THAN
LIABILITY FOR DEATH OR PERSONAL INJURY CLAIMS)
SHALL NOT EXCEED ACTUAL, DIRECT, PROVABLE
DAMAGES, NOT TO EXCEED THE FEES PAID BY END
USER TO SUPPLIER PURSUANT TO THE APPLICABLE
ORDER IN RESPECT OF THE LICENSED SOFTWARE,
THE MAINTENANCE AND SUPPORT, OR SERVICES
THAT ARE THE SUBJECT OF SUCH CLAIM, WHETHER
OR NOT SUCH DAMAGES ARE FORESEEABLE AND
WHETHER OR NOT SUPPLIER HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES.
(b) 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.
10. Warranty.
(a) Supplier warrants that the media for the Licensed Software shall
be free from material defects for a period of ninety (90) days from
the delivery date of the Licensed Software to End User (“Warranty
Period”). Under this warranty, Supplier shall provide an additional
copy of the media to End User at no additional charge in the event
End User’s copy is lost and/or damaged. Supplier’ entire liability
and End User’s entire remedy under this warranty shall be to replace
the media on which the Licensed Software was delivered. Supplier
does not warrant that the use of the Licensed Software shall meet
End User’s requirements or that the operation of the Licensed
Software shall be uninterrupted or error free.
(b) Supplier warrants that for the Warranty Period, the Licensed
Software (excluding third party components, the warranty coverage
for which shall be the same as that which is provided by the third
party supplier to Supplier) shall materially conform to the
Documentation. Supplier’ entire liability and End User’s entire
remedy under this warranty shall be, at Supplier’ election, to: (i) use
reasonable efforts to correct any material non-conformities
discovered within the Warranty Period; (ii) replace the
nonconforming Licensed Software or (iii) refund License Fees paid 12. Indemnification.
for such Licensed Software upon return of the Licensed Software to (a) End User shall defend or, at its sole discretion, settle, any claim,
Supplier. ANY REFUND PROVIDED HEREUNDER SHALL
action or proceeding brought against Supplier based upon a
BE DEEMED A REVOCATION OF THE LICENSE
substantive allegation relating to End User’s unauthorized
GRANTED
FOR
SUCH
REFUNDED
LICENSED
possession, use, copying or distribution of the Licensed Software or
SOFTWARE (AND ANY RELATED MAINTENANCE) AND
any part thereof, and indemnify Supplier against, and hold Supplier
SHALL BE SUPPLIER’ ENTIRE LIABILITY AND END
harmless from, any and all costs and damages finally awarded against
USER’S ENTIRE REMEDY FOR REJECTION OF THE
Supplier that are directly attributable to such claim, action or
LICENSED SOFTWARE. NEITHER PARTY SHALL HAVE
proceeding.
ANY
FUTURE
OBLIGATIONS
OR
LIABILITY (b) Except as otherwise provided in this Section, Supplier shall
HEREUNDER WITH RESPECT TO SUCH LICENSED
defend End User against any claim, action or proceeding brought
SOFTWARE. The remedies specified herein only apply if Supplier
against End User based upon a substantive allegation that the
is notified in writing of the non-conformities within the Warranty
Licensed Software (excluding third party components, the
SUPPLIER MSLSA
CONFIDENTIAL INFORMATION
Page 5 of 16
indemnification coverage for which shall be the same as that which
is provided by the third party supplier to Supplier) as delivered to
End User infringes any United States or Canadian patent, copyright,
trade secret or trademark of a third party (a “Claim”), and indemnify
End User against, and hold End User harmless from, any and all
costs and damages finally awarded against End User that are directly
attributable to such Claim.
(c) Each party seeking indemnification shall take all reasonable steps
to mitigate any potential expenses and shall: (i) promptly after first
receipt of Notice of a Claim (and in any event before any of the
other party's rights are prejudiced), deliver to the other party Notice
of such Claim and any actions taken in connection therewith; (ii)
grant to the other party the sole authority to assume the defense
thereof, and the sole right to settle the Claim, through counsel
chosen solely by such other party, and (iii) reasonably cooperate with
the other party in connection with the defense and/or settlement of
such Claim. Except as specified herein, the indemnifying party shall
not be liable for any costs or expenses incurred without its prior
written authorization.
(d) If any third party obtains an injunction against End User’s use of
any Licensed Software as a result of any Claim or if Supplier, in its
sole discretion, believes that End User’s use of any Licensed
Software may be subject to a Claim, then Supplier may at its
expense, either: (i) procure for End User the right to continue to use
the Licensed Software as provided herein; (ii) replace or modify the
Licensed Software with a functionally-equivalent or better product
so that End User’s use is not subject to a Claim; or (iii) if Supplier
determines that it cannot accomplish either of the foregoing in a
commercially reasonable manner, then, upon the request of Supplier,
(a) End User shall deliver the Licensed Software to Supplier and (b)
Supplier shall promptly refund to End User the depreciated value of
the Licensed Software (as amortized over a forty-eight (48) month
aggregate period) and terminate this Agreement. Upon exercise of
option (iii) of this Section 12(d), Supplier shall have no further
obligations or liability to End User. Notwithstanding the foregoing,
Supplier assumes no liability for infringement claims arising from
any of the following: (A) combination of the Licensed Software with
other products not provided by Supplier; (B) modifications to any
Licensed Software unless such modification was made by Supplier;
(C) use of the Licensed Software if the infringement would have
been avoided if the Licensed Software had been used in accordance
with the Documentation; (D) failure by End User to install a
Maintenance, Minor or Major Release provided by Supplier if such
Maintenance, Minor or Major Release would have avoided
infringement; (E) continuing activities that are the subject of the
Claim after Supplier’ Notice that End User must cease use of the
Licensed Software due to a potential infringement claim; or (F) use
of the Licensed Software after Notice of termination.
(e) NOTWITHSTANDING ANY PROVISION OF THIS
AGREEMENT TO THE CONTRARY, THE PROVISIONS OF
THIS SECTION 12 CONSTITUTE SUPPLIER’ ENTIRE
LIABILITY AND END USER’S ENTIRE REMEDY WITH
RESPECT TO ANY CLAIM OF INFRINGEMENT OF ANY
PATENT, COPYRIGHT, TRADE SECRET, TRADEMARK OR
OTHER INTELLECTUAL PROPERTY RIGHT OF ANY
THIRD PARTY.
13. Proprietary Information.
(a) “Proprietary Information” means all information and material
disclosed by the disclosing party (“Discloser”) to the receiving party
(“Recipient”) (whether in writing, or in oral, graphic, electronic or
any other form) that is marked as (or provided under circumstances
reasonably indicating it is) confidential or proprietary. Supplier
SUPPLIER MSLSA
Proprietary Information includes without limitation the Licensed
Software, Creations and any Derivative Works, the provisions of this
Agreement, the Core Training, and any trade secrets, know-how,
inventions (whether or not patentable), techniques, processes,
programs, ideas, algorithms, formulas, schematics, testing
procedures, software design and architecture, computer code,
internal documentation, design and function specifications, product
requirements, problem reports, performance information, software
documents, and other technical, business, product, marketing and
financial information, plans and data. End User acknowledges and
agrees that the Licensed Software embodies substantial creative
efforts and constitutes and contains valuable trade secrets and
confidential information of Supplier.
(b) Recipient shall hold all Proprietary Information in strict
confidence and shall not disclose any Proprietary Information to any
third party, other than to its employees or agents who need to know
such information to perform Recipient’s obligations or exercise
Recipient’s rights hereunder and who are bound by restrictions
regarding disclosure and use of such information comparable to and
no less restrictive than those set forth herein. Recipient shall not use
any Proprietary Information for the benefit of itself or any third
party or for any purpose other than the performance of Recipient’s
obligations or exercise of Recipient’s rights hereunder. Recipient
shall take the same degree of care that it uses to protect its own
confidential and proprietary information and materials of similar
nature and importance (but in no event less than reasonable care) to
protect the confidentiality and avoid the unauthorized use,
disclosure, publication or dissemination of the Proprietary
Information. Recipient shall not make any copies of the Proprietary
Information except as necessary to perform its obligations or
exercise its rights hereunder, unless otherwise approved in writing in
advance by Discloser.
(c) The foregoing restrictions on disclosure and use shall not apply
with respect to any Proprietary Information which the Recipient
reasonably demonstrates: (i) was or becomes publicly known
through no act or omission of Recipient; (ii) was known by
Recipient before receipt from Discloser or (iii) becomes known to
Recipient without confidential or proprietary restriction from a
source other than Discloser that does not owe a duty of
confidentiality to Discloser with respect to such Proprietary
Information. In addition to the foregoing, Recipient may disclose
Proprietary Information to the extent (A) approved by Discloser or
(B) Recipient is legally compelled to disclose such Proprietary
Information; provided that Recipient shall (1) promptly notify
Discloser of the notice compelling disclosure, (2) reasonably
cooperate with Discloser in protecting against any such disclosure
and/or obtaining a protective order narrowing the scope of such
disclosure and/or use of the Proprietary Information, (3) reproduce
any confidentiality or proprietary markings appearing on the
Proprietary Information in the copies of such Proprietary
Information, (4) only furnish the portion of the Proprietary
Information that it is required to disclose and (5) use reasonable
efforts to obtain reliable assurances that the disclosed Proprietary
Information shall be treated confidentially. Notwithstanding any
such compelled disclosure by the Recipient, such compelled
disclosure shall not otherwise affect the Recipient’s obligations
hereunder with respect to Proprietary Information so disclosed.
(d) Recipient acknowledges and agrees that due to the unique nature
of Discloser’s Proprietary Information, there may be no adequate
remedy at law to compensate Discloser for the breach of any
provision of Sections 3, 6(c), 8 or 13; that any such breach may
result in irreparable harm to Discloser that would be difficult to
measure and that upon any such breach or threat thereof, Discloser
CONFIDENTIAL INFORMATION
Page 6 of 16
shall be entitled to seek injunctive and other appropriate equitable
relief (without the necessity of proving actual damages), in addition
to whatever remedies it may have at law.
14.
Audit. During the Term of this Agreement and for two (2)
years thereafter, End User shall keep complete and accurate records
relating to the Licensed Software and End User’s compliance with
the provisions of this Agreement. Upon at least thirty (30) days
prior Notice, End User shall permit Supplier or Supplier’
representatives, at Supplier expense (except as provided herein), to
examine and copy its physical and electronic records during End
User’s regular business hours, and End User shall reasonably
cooperate with Supplier in examining such records (e.g., by
providing configuration log files upon request), for the sole purpose
of and only to the extent reasonably necessary to verify End User’s
compliance with the provisions of this Agreement. If any such
examination conducted by Supplier or its representatives determines
any material non-compliance with the provisions of this Agreement
(including without limitation, shortfall in fees to Supplier), then, in
addition to any legal remedies or equitable relief that may be
available to Supplier, End User shall be responsible for any expenses
incurred by Supplier for any such examination. Without prejudice to
the foregoing, if shortfall in payment to Supplier is so disclosed, End
User shall pay Supplier all amounts due within thirty (30) days of
Supplier notification to End User of such shortfall.
15. End User Reference Program. End User agrees that Supplier
may identify End User in a list of Supplier End Users in printed
marketing and promotional materials and on its website. End User
further agrees to participate as a member of Supplier’ End User
Advantage Program (“GCAP”). As a GCAP member, End User
may participate in certain Supplier marketing and promotional
activities and events, subject to mutual consent of the parties. For
example, End User may participate in GCAP as a reference End
User in a case study, provide a quote for a Supplier or jointly-issued
press release, and participate in media interviews or other speaking
engagements. Additional GCAP program details may be found at
www.genesyslab.com/gcap.
16. General.
(a) Compliance with Laws.
(i)
Each party and its agents, subsidiaries and
affiliates shall, and shall cause their respective employees to,
comply at their own expense with all applicable local, national,
regional and international laws, ordinances, regulations, codes,
standards, directives and international conventions and
agreements to the extent that any of the foregoing have the force
of law by being directly enforceable by a governmental authority,
a court or other proper tribunal, (collectively “Laws”) as it relates
to Supplier’ provision of the Licensed Software (in the case of
Supplier) and End User’s use of the Licensed Software, including,
but not limited to, the functionality of the Licensed Software as
created by Supplier based upon End User’s specifications
pursuant to a professional services engagement, (in the case of
End User), including, but not limited to (a) records keeping laws,
conventions and/or directives of each country in which such
Licensed Software and/or functionality are used and/or distributed;
(b) laws and regulations of the Federal Communications
Commission (“FCC”) or other regulatory and governmental agents;
and (c) data privacy laws, or any similar laws, including, but not
limited to laws prohibiting the use, disclosure and transfer of
personally identifiable information of third parties without such
third parties knowledge and/or consent.
SUPPLIER MSLSA
(ii)
Without limiting the generality of the foregoing,
the parties acknowledge and agree that any products, licensed
materials and information provided under this Agreement, and
any use or transfer thereof, are subject to United States and
Canadian export control laws and regulations, and each party shall
comply with all United States and Canadian export control laws
and regulations. In addition to the foregoing, each party shall
perform all actions reasonably required by the other party in order
to enable such other party to comply with United States and
Canadian export control laws and regulations. Notwithstanding
the foregoing and for the avoidance of doubt, each party shall be
solely responsible for obtaining on its own behalf any appropriate
licenses or other applicable documentation required under United
States or Canadian export control laws and regulations.
(iii)
Each party shall indemnify and defend the other
party, and hold such other party harmless from any and all claims,
actions, proceedings, liabilities, losses, damages, costs or expenses
(including reasonable attorneys’ fees) incurred by such other party
resulting from, or arising out of or in connection with any breach by
the indemnifying party of this Section. For the avoidance of doubt,
End User acknowledges and agrees that Supplier shall have no
liability for End User’s use of the Licensed Software in an
unlawful manner.
(b) Assignment. This Agreement may not be assigned, in whole or
part, whether voluntarily, by operation of law or otherwise, by End
User without the prior written consent of Supplier. Subject to the
preceding sentence, the rights and liabilities of the parties hereto
shall bind and inure to the benefit of their respective assignees and
successors, and is binding on the parties and their successors and
assigns. Any attempted assignment other than in accordance with
this Section 16(b) shall be null and void. For the avoidance of
doubt, any change in the ownership or effective management or
control of the End User will be deemed to be an assignment for
the purposes of this Section 16(b).
(c) Relationship of the Parties. Nothing contained in this
Agreement shall be deemed or construed as creating a joint venture,
partnership, agency, employment or fiduciary relationship between
the parties. Neither party has any authority of any kind to bind the
other party in any respect whatsoever, and the relationship of the
parties is, and at all times shall continue to be, that of independent
contractors.
(d) Governing Law; Jurisdiction; Venue. This Agreement shall be
governed by and construed in accordance with 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 arising out of or 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 irrevocably agree to submit to the personal and
exclusive jurisdiction of such court and that venue therein is proper
and convenient. Any judgment or order by any court having proper
jurisdiction against a party may be enforced in any court having
jurisdiction over such party or its assets.
(e) Restricted Rights. If End User (or successor or permitted
assignee) is an agency or instrumentality of the United States
Government, the Licensed Software is “commercial computer
software” and “commercial computer software documentation,”
and, pursuant to FAR 12.212 or DFARS 227.7202 and their
successors, as applicable, use, reproduction and disclosure of the
Licensed Software is governed by the provisions of this Agreement.
(f) Force Majeure.
Except for payment obligations,
confidentiality obligations and
obligations prohibiting
CONFIDENTIAL INFORMATION
Page 7 of 16
violation/misappropriation of a party’s intellectual property
rights, neither party shall be liable for the failure to perform its
obligations under this Agreement due to events beyond such
party's reasonable control including, but not limited to, strikes,
riots, civil disorder, wars (declared or undeclared), terrorism, fire,
perils of sea or air, flood, drought, explosion, sabotage, accident,
embargo, acts of God, acts of Federal, State or local government,
or (subject to Section 13 (Proprietary Information) acts in
compliance with any applicable law, regulation or order (whether
valid or invalid) of any court or governmental body. Time of
performance of either party’s obligations hereunder shall be
extended by the time period reasonably necessary to overcome
the effects of such occurrences, provided, however, that if such
circumstances continue beyond thirty (30) days, the party awaiting
performance may cancel this Agreement or the Order affected.
(g) Notices. Any notice, request, demand or other communication
required or permitted hereunder shall be in writing, shall reference
this Agreement and shall be deemed to be properly given: (i) when
delivered personally; (ii) when sent by facsimile, with written
confirmation of receipt; (iii) seven (7) days after having been sent by
registered or certified mail, return receipt requested, postage prepaid
or (iv) two (2) business days after deposit with a private industry
express courier, with written confirmation of receipt (“Notices”).
All Notices shall be sent to the respective address (with a copy to the
Legal Department) set forth in the cover page of this Agreement (or
to such other address as may be designated by a party by giving
Notice to the other party pursuant to this Section 16(g)).
(h) Waiver. The waiver by either party of a breach of or a default
under any provision of this Agreement shall be in writing and shall
not be construed as a waiver of any subsequent breach or default
under this Agreement, nor shall any delay or omission on the part of
either party to exercise or avail itself of any right or remedy that it
has or may have hereunder operate as a waiver of any right or
remedy.
(i) Severability. If the application of any provision of this Agreement
to any particular facts or circumstances shall be held to be invalid or
unenforceable by a court of competent jurisdiction, then: (i) the
validity and enforceability of such provision as applied to any other
particular facts or circumstances and the validity of other provisions
of this Agreement shall not in any way be affected or impaired
SUPPLIER MSLSA
thereby; and (ii) such provision shall be enforced to the maximum
extent possible so as to effect the intent of the parties and reformed
without further action by the parties to the extent necessary to make
such provision valid and enforceable.
(j) Counterparts. This Agreement may be executed in counterparts
and, in the absence of an original signature, faxed signatures shall be
considered the equivalent of an original signature.
(k) Language. Les parties déclarent qu'elles ont exigé que le
présent accord ainsi que tous les documents et avenants s'y
rattachant soient rédigés en langue anglaise. The parties declare
that they have requested that this Agreement and any schedules,
amendments or modifications hereto be drafted in English. For
the avoidance of doubt, the original version of this Agreement is
in English. If there are any inconsistent or new provisions in any
translated version of this Agreement, the provisions of this
original English version shall supersede those of the translated
version.
(l) Entire Agreement. This Agreement constitutes the entire
agreement between the parties concerning the subject matter hereof
and terminates and supersedes all prior or contemporaneous
representations, discussions, proposals, negotiations, conditions,
agreements and communications, whether oral or written, between the
parties relating to the subject matter of this Agreement and all past
courses of dealing or industry custom. Notwithstanding the generality
of the foregoing, in addition thereto, and for the avoidance of
confusion, this Agreement shall also serve to terminate and shall
replace any and all of those certain agreements in the following
sections 15 (l) (i) and (ii), such that such agreements are void, regardless
of when, such agreements became effective (whether prior or
subsequent to this Agreement): (i) license agreements and/or end user
license agreements between Licensee and Voice Genie Technologies,
Inc. for Licensed Software; and, (ii) click wrap, pop-up and shrink
wrap license agreements accompanying or embedded in License
Software (“Click Wrap Agreements”), other than product-specific
terms of such Click Wrap Agreements (“Product Specific Terms”),
which such Product Specific Terms shall not be void, and shall take
precedence over this Agreement. Except as otherwise expressly stated
herein, no amendment or modification of any provision of this
Agreement shall be effective unless in writing and signed by each party.
CONFIDENTIAL INFORMATION
Page 8 of 16
SCHEDULE A
MAINTENANCE AND SUPPORT TERMS
END USER RESPONSIBILITIES FOR MAINTENANCE AND SUPPORT
End User shall use commercially reasonable efforts to perform the following tasks with regard to Maintenance and Support:
 Maintain a competent and complete technical understanding of its own technical infrastructure.
 Review frequently asked questions, release notes and other documentation on http://genesyslab.com/support/
 Develop knowledge and understanding of the Licensed Software to be deployed.
 Gather and validate log files, configuration files and operating system crash files in the event of a Licensed Software crash.
 Accurately characterize Licensed Software problems reported and describe their business impact.
 Reasonably describe symptoms of Licensed Software problems.
 Provide background information leading up to Licensed Software problems.
 Describe End User steps or actions to try and resolve such problems.
 Describe, if applicable, any changes to the Licensed Software environment.
 Submit validated log, configuration and other files to Supplier for analysis.
 Provide timely and accurate responses to Supplier’ requests.
 Provide timely feedback on fixes and recommendations.
MAINTENANCE AND SUPPORT ESCALATION PROCEDURES
Maintenance and Support shall be provided as set forth in Section 5 of the Agreement. End User 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 redetermined by the parties during the problem resolution process, but Supplier shall have the final authority as to the actual designation.
Supplier shall respond to problems with the Licensed Software based upon the severity of the problem according to the following schedule:
Severity
Level
Critical
High
Criteria







Medium





Low

SUPPLIER MSLSA
Impacts a production/live environment.
Causes a severe impact on business operations of end End
User (e.g. calls cannot be completed or critical business
processes are disabled). Alternatively, causes a severe
impact on business operations of a service provider due to
the accumulated impact on multiple End Users.
Continuous or near continuous interruption of service.
No workaround available.
Impacts production/live environment or lab environment.
In lab environment, causes a serious impact on
development activity (e.g. causes integration work to be
blocked or delays completion of final system testing).
In production/live environment, causes a serious impact
on business operations of end End User (e.g. call
processing altered in such a way as to degrade service
quality or handling of business data). Alternatively, causes
a serious impact on business operations of a service
provider due to the accumulated impact on multiple End
Users.
Intermittent disruption of service.
No stable workaround available.
Impacts production/live environment or lab environment.
In lab environment, causes a minor impact on
development.
In production/live environment, causes a minor impact
on business operations of end End User (e.g. minimal
degradation of call processing or handling of call data).
Alternatively, causes a minor impact on business
operations of a service provider due to the accumulated
impact on multiple End Users.
Impacts production/live environment or lab environment.
Supplier
Response Targets
60 Minutes
(Critical
severity
issues must be
reported or followed
up via telephone by
End User)
Supplier
Resolution Targets
Supplier shall use reasonable efforts to
continue to work on the problem until
such problem is resolved or a
workaround is provided.
4 hours
Supplier shall use reasonable efforts to
resolve the problem or provide a
correction or workaround within two
(2) business days after receipt of a
complete problem description, including
the
business
impact
and
log/configuration files from End User.
If a Licensed Software fix is required,
Supplier shall use reasonable efforts to
correct the defect in the next Release.
1 business day
Supplier shall use reasonable efforts to
resolve the problem or provide a
workaround within five (5) business
days after receipt of a complete problem
description, including the business
impact and log/configuration files from
End User. If a Licensed Software fix is
required, Supplier shall use reasonable
efforts to correct the defect within the
next two subsequent Releases.
Supplier shall make reasonable efforts to
resolve the problem or provide a
1 business day
CONFIDENTIAL INFORMATION
Page 9 of 16


workaround within ten (10) business
days after receipt of a complete problem
description, including the business
impact and log/configuration files from
End User.
In lab environment, causes little or no impact on
development activity.
In production/live environment, causes little or no impact
on business operations of end End User. Alternatively,
causes little or no impact on business operations of a
service provider due to the accumulated impact on
multiple End Users.
In the event Supplier requests any software “dumps”, tapes, logs or any other documentation from End User to resolve a reported problem,
such documentation shall be forwarded through electronic means (email or ftp) or by overnight courier by End User at End User’s expense, if
electronic means are not available. Additional hardware, implementation and training services may be required for implementation of
Releases.
Escalation Path for Maintenance and Support Issues:
If End User is not satisfied with the Maintenance and Support provided by Supplier, End User should contact the Director of Technical
Support listed below, as the first escalation point. If the Director of Technical Support listed below is not available or End User wants to
escalate the problem to the next level, End User should contact Vice President of Technical Support. Such contact persons may be changed
from time-to-time at the sole discretion of Supplier.
Customer
Location
North America, Latin
America
Escalation Level
Contact Person
Contact Information
Contact first
Bruce Kierstead,
Director, Technical Support
Second Level
escalation point
Warren O'Donnell,
Vice President, Technical
Support
Office: +1 506 637 3600
Mobile: +1 506 333 4213
E-mail: bruce@genesys.ca
Office: +1 506 636 3601
Mobile: +1 506 647 5057
E-mail: warren.odonnell@genesyslab.com
Office: +44 (0) 1276 457126
Mobile: + 44 (0) 779 893 2352
E-mail: dcottle@genesyslab.co.uk
Office: +44 (0) 1276 457119
Mobile: +44 (0) 777 0441593
E-mail: matts@genesyslab.co.uk
Office: +61 7 3368 6804
Mobile: +61 410 482 884
E-mail: jlaird@genesyslab.com
Office: +61 7 3368 6803
Mobile: +61 419 363 392
E-mail: asoroka@genesyslab.com
Office: +61 7 3368 6807
Mobile: +61 438 355 299
E-mail: sbird@genesyslab.com
Office: +81 3 6361 8952
Mobile: +81 80 3536 3060
E-mail: sohashi@genesyslab.com
Office: +61 7 3368 6803
Mobile: +61 419 363 392
E-mail: asoroka@genesyslab.com
Office: +61 7 3368 6807
Mobile: +61 438 355 299
E-mail: sbird@genesyslab.com
Office: +91 (22) 3913 7765
Mobile: +91 (98) 2134 2002
E-mail: Devang.Joshi@genesyslab.com
Office: +61 7 3368 6803
Mobile: +61 419 363 392
E-mail: asoroka@genesyslab.com
Office: +61 7 3368 6807
Mobile: +61 438 355 299
E-mail: sbird@genesyslab.com
Office: +1 732 886 8877
Mobile: +1 848 525 9877
Contact first
Europe,
Middle East, Africa
Second Level
escalation point
Contact first
Asia Pacific
Japan
India
All Locations
SUPPLIER MSLSA
Dean Cottle,
Director, Technical Support
Matt Stocker,
Vice President, Customer Care
– EMEA
John Laird,
Manager, Customer Care
Second Level
escalation point
Andrew Soroka,
Senior Manager, Customer Care
Third Level
escalation point
Stephen Bird,
Senior Director, Customer Care
Contact first
Shinobu Ohashi,
Senior Manager, Customer Care
Second Level
escalation point
Andrew Soroka,
Senior Manager, Customer Care
Third Level
escalation point
Stephen Bird,
Senior Director, Customer Care
Contact first
Devang Joshi,
Technical Support Manager
Second Level
escalation point
Andrew Soroka,
Senior Manager, Customer Care
Third Level
escalation point
Stephen Bird,
Senior Director, Customer Care
Final contact
for all locations
Elliot Danziger,
Executive Vice President,
CONFIDENTIAL INFORMATION
Page 10 of 16
Customer Care
SUPPLIER MSLSA
E-mail: elliotd@genesyslab.com
CONFIDENTIAL INFORMATION
Page 11 of 16
SCHEDULE B
PRICE SCHEDULE FOR LICENSED SOFTWARE
[Attach Quote]
SUPPLIER MSLSA
CONFIDENTIAL INFORMATION
Page 12 of 16
SCHEDULE C
END USER DEVELOPER LICENSE ADDENDUM
1. General. The provisions of the Agreement are incorporated
by reference into this Addendum; provided that Sections 3(a)
and 3(b) (License) and 6 (Professional Services) shall not
apply. Any capitalized terms used in this Addendum which
are not otherwise defined herein are as defined in the
Agreement. “Developer Materials” shall be included in the
definition of “Licensed Software” for purposes of this
Addendum. The provisions of this Addendum shall supersede
any conflicting provisions of the Agreement for purposes of
Developer Materials.
2. Definitions.
(a) “End User Products” means the commercially available
software products that are owned or licensed by End User,
which products access, communicate or interoperate with
Supplier Products through Developed Works.
(b) “Developed Works” means the software code (including
without limitation the application or integration) developed by
End User by using the Developer Materials, which software code
enables End User Products to access, communicate or
interoperate with Supplier Products solely through Supplier
proprietary interface elements, application program interfaces
(“API”) and/or software development kits (“SDK”).
(c) “Developer Materials” means Supplier tools, in object code
(and clear text formats if applicable) only (which may include
modifiable script files which shall not be modified by End User),
and Documentation, ordered by End User pursuant to an Order.
Developer Materials includes the Supplier developer tool
components that are included within Supplier GVP Developer
Edition (but do not include any other portion or the whole of
Supplier GVP Developer Edition).
Developer Materials
excludes (i) any Supplier SDK that is not obtained pursuant to an
Order, (ii) any Supplier API that has not been productized for
external use by Supplier and (iii) any features or functionality not
explicitly set forth in the Documentation.
(d) “Developer Training” means the Supplier technical
development courses for the applicable Developer Materials plus
any course prerequisites.
(e) “Run-Time License” means the applicable Supplier runtime licenses and fees (including applicable maintenance fees)
described in the schedule of applicable Supplier run-time
licenses set forth in Schedule C-1 (Supplier Run-Time
Licenses).
(f) “Subcontractor” means a third party entity or individual
independent contractor whom End User contracts to perform
on its behalf the authorized development activities set forth in
this Addendum to create, debug and/or test Developed
Works as works made for hire; provided that (i) such third
party shall not be a competitor of Supplier, as Supplier deems
in its reasonable discretion; (ii) End User shall notify Supplier
in writing of the identity the third party (including without
limitation contact information of such third party) to Supplier
prior to the start of any work by such third party under this
Addendum; (iii) End User shall bind such third party by
restrictions regarding disclosure and use of Proprietary
Information that are no less restrictive than those set forth
herein; (iv) End User shall properly coordinate and supervise
work to be performed by such third party hereunder; (v) End
User shall remain responsible and liable for such third party’s
compliance with the provisions of this Addendum; (vi) End
SUPPLIER MSLSA
User 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 End User, 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 End User
and its authorized assigns and successors; and (vii) and End
User shall ensure that such third party delivers to End User:
(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, (the requirements of this Section 2(f) collectively,
“Additional Subcontractor Requirements”). End User shall be
entitled to replace the Subcontractor subject to each of the
foregoing conditions, including without limitation, the
Additional Subcontractor Requirements. For the avoidance of
doubt, the Subcontractor shall only have those limited rights
to perform the development activities on behalf of the End
User as set forth hereunder, and, once delivered to End User,
the Subcontractor shall not retain Developer Materials,
Developed Works or any information, documentation and
materials relating the Developed Works, or use any of the
foregoing for any other purposes.
3. License Grants and Audit.
(a) Development Rights. Subject to the provisions of this
Addendum (including without limitation, all of the conditions
set forth in Section 4 (Restrictions), Supplier grants to End
User 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 End
User, on the Designated CPU at the Designated Site 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 Supplier Interworks
Program web page located at the following URL:
[http://www.genesyslab.com/storage/legal/sdk/], to create,
debug and/or test the Developed Works. For the avoidance
of doubt, Supplier reserves the right to amend the information
set forth at the aforementioned Supplier Interworks Program
web page in its sole discretion
(b) Internal Use. Subject to the provisions of this Addendum, End
User shall be entitled to use the Developed Works solely for its
own internal business operations; provided, however, that End
User licenses all applicable Supplier Run-Time Licenses prior to
deployment of the Developed Works.
(c) Audit. During the Term of this Addendum and for two (2)
years thereafter, End User shall keep complete and accurate
records relating to the Developer Materials and End User’s
compliance with the provisions of this Addendum. Upon at
least thirty (30) days prior Notice, End User shall permit Supplier
or Supplier’ representatives, at Supplier expense (except as
provided herein), to examine and copy as reasonably necessary
its physical and electronic records during End User’s regular
business hours for the purpose of and to the extent necessary to
verify End User’s compliance with the provisions of this
Addendum. If any such examination conducted by Supplier or
its representatives determines any material non-compliance with
the provisions of this Addendum (including without limitation,
CONFIDENTIAL INFORMATION
Page 13 of 16
shortfall in fees to Supplier), then, in addition to any legal
remedies or equitable relief that may be available to Supplier,
End User shall be responsible for any expenses incurred by
Supplier for any such examination. Without prejudice to the
foregoing, if shortfall in payment to Supplier is so disclosed, End
User shall pay Supplier all amounts due within thirty (30) days of
Supplier notification to End User of such shortfall.
4. Restrictions.
(a) End User shall not directly or indirectly, without the prior
written consent of Supplier: (i) copy all or any portion of the
Developer Materials, except for one (1) copy of the Developer
Materials for normal backup and archival purposes;
(ii) decompile, disassemble or otherwise reverse engineer the
Developer Materials or any portion thereof, or determine or
attempt to determine any source code, algorithms, methods,
interfaces, data structures or techniques embodied in or used by
the Developer Materials or any portion thereof (except to the
extent, if at all, expressly permitted by applicable law,
notwithstanding a contractual obligation to the contrary);
(iii) create any Derivative Works; (iv) distribute, disclose, market,
sell, rent, lease, time-share, assign, sublicense, pledge, encumber
or otherwise transfer or make available the Developer Materials
or Developed Works, or rights granted under this Addendum, as
applicable, in whole or in part, to any third party; (v) remove or
alter any copyright, trademark, trade name, confidentiality or
other proprietary notices, legends, symbols or labels appearing
on or in copies of the Developer Materials; (vi) perform, or
release the results of, benchmark tests or other comparisons of
the Developer Materials with other programs; (vii) transfer the
Developer Materials to any CPU other than the Designated CPU
or to any site other than the Designated Site; (viii) permit the
Developer Materials to be used in connection with a service
bureau or otherwise used for processing the data of any third
party; (ix) incorporate the Developer Materials or any portion
thereof into any other program or product; and (x) use the
Developer Materials other than in accordance with the
provisions of this Addendum. End User shall not create
Developed Works, and shall not permit the Developed Works to
be used or distributed in a manner that subjects or may subject
Supplier Proprietary Information, in whole or in part, to all or
part of license provisions which seek to require any Supplier
Proprietary Information to be licensed to or otherwise shared
with any third party under provisions that require such
Supplier Proprietary 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.
(b) Without limiting Section 4(a) above, End User’s development
activities during the Term of this Addendum shall be subject to
all of the following additional conditions:
(i) End User shall use the Developer Materials to create
Developed Works, which, running in conjunction with
Supplier Products and applicable Run-Time licenses
(collectively, “Integrated Solution”), shall conform to design
and implementation guidelines and restrictions set forth in the
Documentation and the Supplier Products documentation.
Notwithstanding the generality of the foregoing, the
Integrated Solution shall:
 Use only Supplier supported SDKs and Supplier Products
to access Supplier data;
 Not modify data/database schema in Supplier database
tables directly using SQL;
SUPPLIER MSLSA
 Not introduce database triggers or stored procedures that
operate on Supplier database tables;
 Not compromise data or application security, access or
visibility restrictions enforced by either Supplier Products or
Developed Works;
 Not impede the accurate or effective operation of Supplier
Products;
 Not compromise data integrity of Supplier Products (e.g., if
both Supplier Products and Developed Works can modify
the same data, then modifications by Developed Works
must not circumvent data integrity rules of Supplier
Products); and
 Not cause duplicate copies of data to exist in both
Integrated Solution and Supplier databases.
(ii) End User shall not use the Developer Materials to create a
product which has substantially similar or the same
functionality as Supplier Products as documented in the
applicable documentation;
(iii) End User shall be solely responsible for updating the
Developed Works as required to access, communicate or
interoperate with the latest release of the Developer Materials
and/or Supplier Products; and
(iv) End User shall provide to Supplier a description of
Developed Work, enabling Supplier to reasonably confirm
that the proposed Developed Work conforms to the terms of
this Addendum.
5. Proprietary Rights. Notwithstanding anything to the contrary
in this Addendum, Supplier retains all rights, title and interest,
including without limitation, all patent rights, copyrights,
trademarks and trade secrets, in and to the Supplier Proprietary
Information, including without limitation, any copy or portion
thereof. End User shall retain all rights, title and interest in and
to End User Products and Developed Works. End User shall
have only those rights in or to Supplier Proprietary Information
expressly granted to End User pursuant to this Addendum. End
User acknowledges and agrees that Supplier and other licensees
of Developer Materials may use, develop and/or sell the same or
similar technology as End User’s Developed Works or End User
Products; provided that such technology is developed without
the use of or reference to End User’s Developed Works or End
User Products. End User agrees to take any action reasonably
requested by Supplier to evidence, maintain, enforce or defend
the foregoing rights, and agrees not to take any action to
jeopardize, limit or interfere in any manner with Supplier’
ownership of, and rights with respect to, the Developer
Materials, Supplier Products or any Derivative Work. End User
hereby assigns to and, if applicable, waives in favour of Supplier
(and shall cause its personnel, its contractor(s) and agent(s) as the
case may be to assign to and, if applicable, waive in favour of
Supplier), all rights (for the avoidance of doubt, waiver includes
non-performance of moral rights), title and interest in and to
(i) any modifications or improvements to the Developer
Materials or Derivative Works that are made by or for End User
or its employees, agents or contractors (notwithstanding any
prohibitions to the contrary within this Addendum); (ii) any
invention or creation made by or for End User or its employees,
agents or contractors that is based upon or uses all or any
portion of the Developer Materials or Supplier Proprietary
Information (as defined below) and (iii) any report, feedback or
other information concerning the Developer Materials provided
by End User to Supplier hereunder. End User shall have only
those rights in or to the Developer Materials and any Derivative
CONFIDENTIAL INFORMATION
Page 14 of 16
Work expressly granted to End User pursuant to this
Addendum.
Supplier shall reimburse End User for all
reasonably incurred direct costs of such transfer.
6. Maintenance and Support. Subject to the provisions of the
Addendum, Supplier shall provide to End User Maintenance and
Support (as described in the Agreement) for Developer
Materials; provided; however, that in the case of Developer
Materials, Designated Contacts shall have completed the
applicable Supplier Developer Training. End User acknowledges
and agrees that Maintenance and Support is for Developer
Materials only; Supplier shall not provide Maintenance and
Support for Developed Works or general development support.
7. Warranty. For purposes of this Addendum, the warranty
obligations set forth in Section 10 (Warranty) of the Agreement
shall apply to Developer Materials. End User shall be solely
responsible for all use, installation, function, performance,
operation, maintenance and support of the Developed Works.
SUPPLIER AND ITS SUPPLIERS MAKE NO
WARRANTIES, WHETHER EXPRESS, IMPLIED OR
STATUTORY WITH RESPECT TO ANY DEVELOPED
WORKS, AND SUPPLIER EXPRESSLY DISCLAIMS
ANY
IMPLIED
WARRANTIES
OF
MERCHANTABILITY
OR
FITNESS
FOR
A
PARTICULAR PURPOSE.
8. Indemnification. For purposes of this Addendum, the
indemnification obligations set forth in Section 12
(Indemnification) shall apply to Developer Materials. In
addition to the foregoing, End User shall defend or, at its sole
discretion, settle, any claim, action or proceeding brought
against Supplier based upon a substantive allegation relating to
End User’s unauthorized possession, use, copying or
distribution of the Developer Materials or any part thereof;
the development, performance or use of the Developed
Works; or any representation made by End User that Supplier
has endorsed, warranted or supports the Developed Works,
and to indemnify Supplier against, and hold Supplier harmless
from, any and all costs and damages finally awarded against
Supplier that are directly attributable to such claim, action or
proceeding.
9. Proprietary Information. For purposes of this Addendum,
the definition of “Proprietary Information” in Section 13
(Proprietary Information) of the Agreement shall include
Developer Materials, Supplier Products, Derivative Works (if
any), Run-Time License related information (including
through a Supplier online portal), the provisions of this
Agreement and the Developer Training .
10. Term and Termination.
(a) This Addendum shall commence upon the Effective Date and
continue in full force and effect for one (1) year unless earlier
terminated as provided herein (“Initial Term”). Thereafter, this
Addendum shall automatically be renewed for successive one (1)
SUPPLIER MSLSA
year terms commencing on each anniversary of the Effective
Date (each such term being a “Renewal Term;” the Initial Term
and Renewal Term shall together be referred to as the “Term”),
unless earlier terminated as provided herein.
(b) Either party may terminate this Addendum by Notice (and in
the case of Supplier, may revoke the license grant) if the other
party (i) fails to pay any amount due under this Addendum
within thirty (30) days after Notice of such non-payment or (ii)
commits a material non-monetary breach of this Addendum and
such breach, if capable of being cured, is not cured within thirty
(30) days of a Notice of termination. This Addendum may be
terminated immediately upon Notice by either party if the other
party: (A) violates Sections 3(a) (Development Rights) and 3(b)
(Internal Use), 4 (Restrictions), 5 (Proprietary Rights) or 9
(Proprietary Information); (B) terminates or suspends its
business; (C) becomes insolvent, admits in writing its inability to
pay its debts as they mature, makes an assignment for the benefit
of creditors or becomes subject to direct control of a trustee,
receiver or similar authority; or (D) becomes subject to any
bankruptcy or insolvency proceedings or orders. In addition to
rights to claims for damages or injunctive relief legally available
or provided hereunder, if Supplier has terminated this
Addendum pursuant to this Section 10(b), it shall be entitled to
revoke the license granted.
(c) Either party may terminate this Addendum for any reason at
any time after the Initial Term upon providing thirty (30) days
Notice to the other party.
(d) Upon any termination or expiration of this Addendum, all
licenses granted hereunder shall terminate and End User shall
promptly (not to exceed ten (10) days) deliver to Supplier or
destroy all copies of the Developer Materials and all Supplier
Proprietary Information, including without limitation, all extracts
of the foregoing and all documents, notes and other materials
relating to End User’s testing and evaluation of the Developer
Materials, and shall furnish to Supplier within the same time
period an affidavit signed by an officer of End User certifying
that that such delivery or destruction has been fully effected.
Payments made by End User to Supplier hereunder, including
Annual Maintenance Fees, are non-refundable.
(e) In addition to the provisions set forth in Section 9(c) of the
Agreement, the following provisions of this Addendum shall
survive the expiration or any termination of this Addendum in
accordance with their terms: Sections 1 (General), 2
(Definitions), 3(c) (Audit), 4 (Restrictions), 5 (Proprietary Rights),
7 (Warranty), 8 (Indemnification), 9 (Proprietary Information)
and 10 (Term and Termination). Termination of this Addendum
by either party shall not act as a waiver of any breach of this
Addendum and shall not act as a release of either party from any
liability for breach of such party’s obligations under this
Addendum. Neither party shall be liable to the other for
damages of any kind solely as a result of terminating this
Addendum in accordance with its terms, and termination of this
Addendum by a party shall be without prejudice to any other
right or remedy of such party under this Addendum or
applicable law.
CONFIDENTIAL INFORMATION
Page 15 of 16
SCHEDULE C-1
SUPPLIER RUN-TIME LICENSES
Please see Supplier Run-Time License information set forth at the Supplier Interworks Program web page located at the following URL:
[http://www.genesyslab.com/storage/legal/sdk/]
For the avoidance of doubt, Supplier reserves the right to amend Run-Time License related information published at the Supplier Interworks
Program web page, in its sole discretion and accordance with Supplier’ applicable standard price list as of the date of the Order.
Unless otherwise expressly agreed to in writing, the provisions of the Run-Time License information set forth herein (and on the applicable
Supplier Interworks Program web page) shall supersede any conflicting information in the Documentation.
Confidential Information
Page 16 of 16