Addendum for Genesys Professional Services Appfoundry Application

This addendum (“Addendum”) is subject to the Genesys Cloud Terms and Conditions between the parties (the “Agreement”). This Addendum governs Your or the entity you represent (“You, “Your,” or “Customer”) access to and use of The Application (as defined below) provided by the Genesys entity identified in a Services Order (“Us,” “We,” “Our” or “Genesys”).

This Addendum governs Customer’s use of The Application only, and will not apply to any Service Orders submitted (previously or in the future) by Customer for any other Services. The Genesys Cloud Schedule does not apply to this Addendum or Customer’s use of The Application. In the event of a conflict between this Addendum and the Agreement, the terms of this Addendum shall govern and control the use of The Application. Unless otherwise defined herein, capitalized terms shall have the same meaning as stated in the Agreement.

This Addendum takes effect when both parties have executed the Services Order (the “Effective Date”). You represent to Us that You are lawfully able to enter into contracts that bind the entity You represent and that You have legal authority to do so. By executing the Services Order and accessing The Application, You agree to these terms.

1.             Scope.

1.1.     We grant You access to individual Genesys Professional Services application as outlined on the AppFoundry listing being purchased and included on the Services Order (“The Application”).

1.2. Data Center Services. The software used to provide the Genesys Cloud Services is located on servers that are controlled by Amazon Web Service (“AWS”). You may access and use the software but have no right to receive a copy of the object code or source code to the software.

1.3. Acceptable Use. You shall comply with the AWS Acceptable Use Policy found at https://aws.amazon.com/aup/, which is incorporated in the Agreement by this reference.

2.             Subscription Services. 

2.1.     When You place a Services Orders for The Application, We grant You and Your Affiliates a non-exclusive, non-transferable, right to authorize individuals solely within Your and Your Affiliates’ organization to access The Application during the Subscription Term for The Application but only for Your internal business purposes and subject to the terms and conditions of this Addendum.

2.2.     We reserve the right to change the solutions, or their features included within The Solution at any time. We will provide commercially reasonably efforts to provide advanced notice of such changes.

2.3.     We will make The Solution available 24 hours a day, 7 days a week, except for: (i) occasional planned downtime at non-peak hours (for which We will provide advance notice); or (ii) any unavailability caused by circumstances beyond our reasonable control, including failure or delay of Your Internet connection, misconfiguration by You or any third party, issues on Your network, or telecommunications services contracted by or for You,  or (iii) unavailability as a result of the actions of Our hosting provider, including: (a) any maintenance or planned downtime of The Application.

2.4.     We reserve the right to suspend The Application, or portion thereof, or reject or cancel the transmission of any information through The Application based upon (i) reasonable belief that the use of The Application is in violation of Laws, (ii) Your failure to pay amounts when due, or (iii) an imminent compromise to the security or integrity of the network. As practicable depending on the circumstances, We will provide notice of the suspension and keep You reasonably informed of Our efforts to restore The Application.

2.5.     All trademarks, service marks, patents, copyrights, trade secrets and other intellectual property rights in The Application, documentation, and any other materials, products or services provided to You by Us or used in providing The Application to You (collectively, “Materials”) are and shall remain Our exclusive property whether or not specifically recognized or perfected under applicable local Laws. Genesys and its business partners, licensors and suppliers reserve all rights not expressly granted herein and own all rights in all derivative works of the Materials and any copy, translation, modification, adaptation, or derivation (including any improvement or development) of the Materials.

2.6.     You will not and will not permit or authorize any third party to: (a) sell, rent, lease, sublicense or otherwise make the Materials available to any third party except as expressly authorized by this Addendum; (b) modify or create any derivative works, functionally equivalent works, or translations of The Application; (c) copy any feature, design or graphic in or disassemble, reverse engineer or decompile The Application or remove or modify any proprietary markings or restrictive legends placed on any Materials; (d) access or use the Materials to compete with Us or to assist anyone else to compete with Us; (e) remove or modify any proprietary markings or restrictive legends placed on any Materials; (f) take any action that jeopardizes Our rights or the rights of Our business partners, licensors or suppliers in any Materials; (g) violate any Laws; (h) use the Materials in a manner that is defamatory, harassing, infringing or otherwise causes damage or injury to any person or property; (i) transmit viruses or other deleterious code; or (k) damage, disable, overburden or impair the Materials or any other party’s use of the Materials. You are responsible for the use of the Materials by Your Affiliates.

3.             Term.

3.1. This Addendum shall begin on the Effective Date and continue until the end of the Subscription Term of all applicable Services Orders for The Application issued under this Addendum.

4.             Invoicing and Payment

4.1.     Invoicing and Payment will be in accordance with the Services Order and the Agreement.

5.             Reports

5.1.     Your use of The Application may include access to certain reporting tools. Only Your personnel who have completed required training may have access to these reporting tools. You may use and distribute reports for Your internal use only.

6.             Custom Application Support

The Application is supported according to the terms set forth in Schedule A.

7.             Disclaimer

7.1.     THE APPLICATION IS PROVIDED “AS IS.” WE (AND OUR BUSINESS PARTNERS, LICENSORS AND SERVICE PROVIDERS) DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES AND GUARANTEES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS OR OTHERWISE (INCLUDING ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY, QUIET ENJOYMENT, OR ACCURACY). WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT THAT USE OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL DEFECTS IN THE APPLICATION WILL BE CORRECTED. YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES OR MATERIALS NECESSARY TO ACHIEVE YOUR INTENDED RESULTS. TO THE EXTENT THAT WE CANNOT DISCLAIM A WARRANTY AS A MATTER OF LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

7.2.     The sole remedy for any unscheduled downtime is for Us to work around the clock to restore the operation of The Application.

8.             Security

8.1. No Personal Information or Personal Health information. Notwithstanding anything to the contrary in the Agreement, You represent and warrant that You will not process, store, or transmit any Personal Information or Personal Health Information to or through The Application.

8.2. Security Awareness and Training. We have developed and will maintain an information security and awareness program that is delivered to all employees and appropriate contractors at the time of hire or contract commencement and annually thereafter. The awareness program is delivered electronically and includes a testing aspect with minimum requirements to pass.

8.3. Policies and Procedures. We will maintain appropriate policies and procedures to support the information security program. Policies and procedures will be reviewed annually and updated, as necessary.

8.4. Change Management. We will utilize a change management process based on Industry Standards to ensure that all changes to Your environment are appropriately reviewed, tested, and approved.

8.5. Anti-Virus and Anti-Malware Protection. We will utilize Industry Standard anti-virus and anti-malware protection solutions to ensure that all servers in Our cloud hosting environment are appropriately protected against malicious software such as trojan horses, viruses, and worms. The Application will be centrally managed and configured to ensure updates are applied in a timely manner. We will use Industry Standard practice to ensure that the cloud hosting as delivered to You does not include any program, routine, subroutine, or data (including malicious software or “malware,” viruses, worms, and Trojan Horses) that are designed to disrupt the proper operation of the cloud hosting. You acknowledge that the use of license keys will not be a breach of this section.

8.6. Vulnerability and Patch Management. We will maintain a vulnerability management program that routinely assesses the cloud hosting environment. We will monitor a variety of vulnerability advisory services to ensure that newly identified vulnerabilities are appropriately evaluated for possible impact to the cloud hosting. Critical and high-risk vulnerabilities will be promptly addressed following Our patch management and change management processes.

8.7. Data Destruction. We will follow Industry Standard processes for the secure destruction of Your Data that is no longer required under the subscription.

8.8.     We may use data and information related to the performance, operation and use of The Application to create statistical analyses, to perform benchmarking, to perform research and development and to perform other similar activities (“Service Improvements”).  We will not incorporate Your Confidential Information in Service Improvements in a form that could identify You or Your customers.

9. Indemnity.

9.1.     You will defend Us and Our Affiliates at Your expense, indemnify Us and Our Affiliates against any judgments finally awarded by a court and pay any settlements approved by You with respect to any claims: (a) that Your Data and/or Your method or process of doing or conducting business infringes any intellectual property rights of a third party; or (b) arising from Your non-compliance with the Agreement or this Addendum.

10.          Limitation of Liability.

10.1.   OUR (AND OUR BUSINESS PARTNERS’, LICENSORS’ AND SUPPLIERS’) TOTAL LIABILITY FOR ANY LOSS, COST, CLAIM OR DAMAGES IN CONNECTION WITH THE PEFORMANCE OR CONTEMPLATED PERFORMANCE OF THE APPLICATION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION, RESTITUTION OR OTHERWISE, WILL NOT EXCEED THE FEES PAID TO US IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM FOR THE  APPLICATION THAT ACTUALLY CAUSED THE LOSS, COST, CLAIM OR DAMAGE.

11.          Compliance with Laws

11.1.   Each party will comply with Laws as applicable to a party and, in the case of Customer, applicable to The Application. In no event will We be responsible for providing, implementing, configuring, or coding The Application in a manner that complies with any Laws that apply to Your business or industry, including without limitation, the Communications Act of 2003 as implemented by OFCOM, the UK Anti-Bribery Act, the Foreign Corrupt Practices Act, the FTC or FCC regulations or the Telephone Consumer Protection Act of 1991 (collectively “Customer Specific Laws”).  You will comply with Customer Specific Laws, and in no event will We or Our business partners, licensors or suppliers be liable for any claim or action arising from or related to Your failure to comply with any Customer Specific Laws, it being understood that You are solely liable for any such failure(s) and resulting claims or actions.  You shall comply with all requirements of integrity, quality, legality, and all other similar aspects when using The Application.

SCHEDULE A:

Custom Application Support

The Genesys Custom Application Support for Cloud (“Cloud CAS”) is a break/fix support service that provides support plans with problem identification and resolution for The Application in the context of a broader Genesys solution.

1.             Genesys will provide the following services during the Subscription Term outlined in the Services Order:

1.1.     Problem identification and resolution with break/fix support services, documentation updates, and new versions, as available, for The Application.

1.2.     Remote telephone support with Web and/or email assistance according to the Support Response Targets and hours of operation as stated in the “Custom Application Support Program Guide for Cloud” which is made a part of this Addendum and accessible via the Genesys website: https://genesyspartner.force.com/customercare/pkb_Home?id=kAC1T000000XZB0WAO.

1.3.     Upgrades and patches for The Application to ensure continuous operation.

2.             You shall appoint at least two (2) employees to initiate and manage support inquiries with Your (“Designated Contacts”). Designated Contacts shall have competent knowledge of the Application. Only Your Designated Contacts are allowed to submit support requests. We shall be entitled to charge reasonable additional fees for services provided beyond the scope of Our support obligations set forth herein.

3.             Your access and use of support is subject to the terms of the applicable Custom Application Support Guide for Cloud accessible on-line at link https://genesyspartner.force.com/customercare/pkb_Home?id=kAC1T000000XZB0WAO.  We reserve the right to update Support case management processes as needed and may elect to post an announcement on the Customer Care portal. You will submit requests for support subject to the processes set forth in the Custom Application Support Program Guide. Prior to reporting an issue, You shall investigate the issue and make reasonable use of the self-help guides and information posted on the Customer Care Portal. Your Designated Contacts must be knowledgeable and have access to information to facilitate resolution of reported issues. We are not responsible for resolving issues that cannot be reproduced in a controlled test environment. All issues reported by You via Genesys Customer Care are tracked in the Our Customer Care Case Management Tool and assigned a case number for tracking purposes. You shall include the case number in all communications regarding a reported issue.

4. Cloud CAS Exclusions 

4.1.     Genesys shall not provide Cloud CAS relating to The Application defects arising out of:

4.1.1.          Any alterations of or additions to the original Deliverables by parties other than Genesys or at the written direction of Genesys;

4.1.2.          Use of The Application not in accordance with the provided documentation;

4.1.3.          Changes to the operating environment which adversely affect The Application;

4.1.4.          Modifications to the access criteria, security, customer interfaces, or peripheral systems to be used by The Application;

4.1.5.          Accident, negligence, or misuse of The Application;

4.1.6.          Issues caused by Customer owned non-Genesys or third-party applications or Customer maintained infrastructure (e.g. network, Agent Desktop, Customer relationship management [CRM], Web Servers, Databases, Stored Procedures, Mainframes, etc.); and 

4.1.7.          Interconnection of The Application with software not supported by Genesys. 

4.2. Resolution of Non-Genesys Problems.  Genesys will investigate and diagnose all cases opened related to The Application.  Genesys will use commercially reasonable efforts to provide resolution to defects found within The Application Service code.  Upon receipt of a support case from Customer, Genesys will initially perform problem determination. After this problem determination period, should Genesys determine there is significant likelihood that a reported problem is caused by factors outside of The Application or Genesys control, including but not limited to Customer’s firewall, database, network, telecommunications equipment, host computers or applications (“Non-Genesys Problem”), Genesys will notify Customer thereof as soon as Genesys is aware of such Non-Genesys Problem.  Customer will have the option to assume responsibility for further problem diagnosis and resolution or to approve continued investigation and work on resolution of the Non-Genesys Problem via a new Genesys Professional Services Statement of Work.  Services will be provided during Normal Business Hours and at the then-current applicable Genesys Professional Services Hourly Rate.

5.             Customer Responsibilities

5.1.     Customer will ensure the participation of key technical and business personnel so that requirements can be defined without delay.  Customer will provide access to its technical and functional subject matter experts on a timely basis to work in a collaborative manner with Genesys consulting resources.

5.2.     Customer will provide relevant supporting documentation, as requested by the Genesys CARE personnel. This may include any current and planned environment configuration, network topology schematics, and system logs.

5.3.     Customer will be responsible for network, switch, system, and database administration during the Subscription Term of the Cloud CAS.

5.4.     Customer will ensure that all Servers, operating systems, and LAN/WAN connectivity are operational, and access made available throughout the Subscription Term.

6.             Additional Terms

6.1.     All Cloud CAS services will be provided remotely.

6.2.     Travel and living expenses are not included in the annual fees. If both Customer and Genesys determine that onsite support is necessary, any travel and living expenses will be agreed with Customer prior to incurring the expenses and Customer will issue a valid Purchase Order equal to the estimate. Travel and living expenses incurred by Genesys will be billed monthly at actual cost.

6.3.     To minimize communication discrepancies, any and all official communications, written, spoken, electronic, or otherwise, in support of the delivery of the services outlined herein must be communicated in the English language.