This Cloud Services Terms of Use and Delivery Policy (“Terms of Use”) includes the Invoicing Policy, and describes the terms and conditions by which NiCE provides Cloud Services.
1. Cloud Service Definitions.
“CommencementDate” means the first day of the calendar month following the Initiation Date.
“Configured User(s)” or “Named Agent(s)” means the number of uniquely identified Customer employees, agents, traders or contractors, as applicable, who will have one or more interactions processed by the Cloud Services each month with the identities of such persons being capable of variation, such that new agents may be added and old agents may be removed or terminated so long as the number of users having monthly interactions does not exceed the licensed capacity detailed herein.
“Initiation Date” means the date corresponding to the earlier of: (a) the date of NICE’s notice to Customer that the Cloud Services are available to the Customer; (b) the date of Customer’s use of the Cloud Services in Production; or (c) three (3) months following the Effective Date of the Transaction Document. In the case of the NiCE CXone and NiCE CXone Integrated Solution families, Initiation Date may also be referred to as, “Go-Live Date”.
“Minimum ARC” means the minimum annual recurring charges (“ARC”) amount that Customer is required to pay for the Cloud Services, excluding NRC and Network Connectivity charges (if applicable), for each annual period of the Subscription Term.
“Minimum MRC” or “Minimum Technology MRC” means the minimum monthly recurring charges (“MRC”) amount that Customer is required to pay for the Cloud Services excluding NRC and Network Connectivity charges (if applicable), for the duration of the Subscription Term.
“Network Connectivity” means those services that: (a) facilitate or allow a connection from the Customer’s agent location to NiCE’s platform; or (b) enable or facilitate telephone calls or other means of communication or data transmission.
“NRC” means non-recurring charges, e.g., Professional Services.
“Production” means an operational environment deployed for commercial use (excluding, but not limited to, any test, development, staging, or lab environment).
Applicable to NiCE CXone Cloud Services Purchased on a Concurrent Agent Model:
“Concurrent User(s)” means the peak number of logged in active Configured Users calculated based on the single highest volume day of accessing the system in a month which will be invoiced based upon the highest number of agents logged in to the Cloud Services at any time during a particular month (“Peak Agent Amount”).
“Minimum Committed Number of Concurrent Users” means the minimum monthly number of Concurrent Users that Customer purchases during the Subscription Term. Any Concurrent User that logs in to the Cloud Services that exceeds the minimum number of Concurrent Users (i.e., in excess of the Minimum MRC) will be billed at NiCE’s then-current list price.
Applicable to NiCE CX Robotic Automation and NiCE CX Advanced Process Automation Cloud Services:
“Attended Use” refers to Software that shall only be used to support an individual user in their use of applications, systems and tools while actively carrying out their day to day duties at their specific workstation. Software licensed on an Attended Use basis shall not be used to automate processes without human intervention (e.g., a user may not start the Software to perform automated tasks and return to it later, having performed other work away from their workstation).
“Unattended Use” refers to Software that may be used independently of any individual user, to automate processes without human intervention during the process automation.
Applicable to NiCE CX Nexidia Analytics and NiCE CX Quality Central Cloud Services:
“Hours per Day” means the hours of recorded audio ingested per day.
“Recorded Media” means the individual media files that are stored on disk (e.g. *.wav files).
“Analytical Data” means the system-generated index and analytical data produced with the Software.
“Text Interaction” means a single instance of text data; including, emails, chats, or surveys.
“Text Data” means the aggregate of all Text Interactions.
“Discovery Data” means the data available in the Discovery component of the Software.
2. Support. NiCE will provide Support for the Cloud Services and, when available, Updates. Support is available via web portal and via telephone as provided in Section 5 below. Support will be delivered by a member of NiCE’s technical support team during the applicable regional hours of operation as provided in Section 5 below. Support is delivered in English, unless Customer is in a location where Support in the local language is available.
3. Updates. Major and minor releases are periodically delivered to the Cloud Services during the Subscription Term, if and when they are generally commercially available (“Updates”). If Professional Services are required for the implementation or deployment of any Update to the Cloud Services, such fees are included in the Cloud Services fees under a Transaction Document, except with respect to NiCE Performance Management and NiCE Sales Performance Management. If Customer has a customer-specific configuration which requires Professional Services, such Professional Services may be provided upon mutual agreement of the Parties and the payment of additional fees. Customer is required to implement the most current Update provided for the Cloud Services.
4. Customer Duties. Customer will appoint two (2) resources who have completed the NiCE training in the operation and use of the Cloud Services (“Designated Contact(s)”) who will act as NiCE’s primary points of contact regarding requests for Support. Prior to initiating a Case, a Designated Contact shall use reasonable efforts to attempt to diagnose and resolve the particular issue, including using available self-help tools. The Designated Contacts are required to establish and maintain processes within Customer’s organization to provide first tier support for the Cloud Services, which includes: (a) a direct response to user inquiries concerning the performance, functionality, and operation of the Cloud Services; and (b) an attempt to diagnose and resolve problems or issues with the Cloud Services.
5. CaseSubmission. A Designated Contact shall initiate a request for Support on behalf of Customer via the designated support channels outlined in Table A-1 below (each a “Case”).
6. Case Severity Levels and Priority.
6.1 Case Severity Levels. Customer will select the priority of a Case in accordance with the Case Severity Level and priority guidelines set forth below. NiCE may change the priority of a Case if the issue does not conform to the criteria for the selected priority.
Cases are classified based upon the definitions outlined in Table A-2 and Table A-3 below:
*For NiCE CXone and NiCE CXone Integrated Solution families and as described in Table A-3 below. **Target Initial Response Time for S1 Case Severity Level is based on 24x7x365 Support. Target Initial Response Time for all Case Severity Levels other than S1 is based on standard business days/hours. Business days/hours (excluding NiCE observed holidays) is defined as Monday – Friday (8 AM – 5PM) local time, each as measured from the date of Customer’s initial notification to NiCE. Local time is defined as the time of day at the location of the Customer creating the Case.
***The number of active users/contacts is based on the active user population (that should be operational at the time of a Case), not the total user base. NiCE will elevate Cases based on the severity of the impact.
6.2 Non-Supported Errors. NiCE will have no obligation to provide Support for issues caused by any of the following (each, a “Non-Supported Error”): (a) modifications to a Cloud Service not made by NiCE; (b) use of a Cloud Service other than as authorized in the Agreement or as expressly provided in the applicable Documentation; (c) use of an unsupported version of Cloud Service; or (d) third-party products that are not expressly noted in the Documentation as supported by NiCE. If NiCE determines that a submitted Case is for an issue caused by a Non-Supported Error, NiCE will notify Customer as soon as reasonably possible under the circumstances. If Customer agrees that NiCE should provide Support for the Non-Supported Error via a confirming email, then NiCE will have the right to invoice Customer at NiCE’s then-current rates for any such support provided by NiCE.
6.3 Workaround. Should NiCE determine that a Cloud Service requires correction, it will, at its sole option, make the correction in the version of the Cloud Service that Customer is then currently using or instruct Customer to install a newer version of the Cloud Service that includes the correction. NiCE reserves the right to provide Customer with a workaround in lieu of making a correction should NiCE, in its sole judgment, determine that it is more effective to do so.
6.4 Changes. NiCE reserves the right to alter Support from time to time, using reasonable discretion, but in no event will such alterations, during the Subscription Term result in diminished Support from the level purchased at the start of the Subscription Term.
7. Service Level Agreement.
NiCE agrees to make the Cloud Services available at the percentages as set forth below, as measured by NiCE on a monthly basis over the Subscription Term, subject to any Excusable Downtime (the “Service Level Agreement”).
7.1 “Availability” means the Cloud Service in Production is available and operable for access and use by Customer.
Service Level Availability of a Cloud Service for any given calendar month will be measured as follows: ((x-y-z))/((x-y))×100 x = total number of minutes in a calendar month* y = Excusable Downtime z = unscheduled outages other than Excusable Downtime
*For example, the total number of minutes in June would be calculated based on 24 hours per day x 60 minutes per hour x 30 days (or 43,200 minutes), as June has 30 calendar days.
*24X7/365 days for one (1) Production environment and excluding beta, proof-of-concept, evaluation, trial or non- Production testing Cloud Services **NiCE will use commercially reasonable efforts to perform routine maintenance service on the Cloud Services during these times.
7.2 Excusable Downtime. The Service Level Agreement does not apply to any downtime, unavailability, suspension or termination of the applicable Cloud Service (or any Software operating in connection with the Cloud Service) that arises out of or results from any of the following (individually and collectively, “Excusable Downtime”):
routine maintenance services performed during the Maintenance Windows, set forth in Table B-1 above;
unscheduled emergency maintenance services performed to avoid harm to NiCE, Customer, Content, or the Cloud Services, generally;
any time spent by NiCE in its performance of any additional Services requested or agreed to by Customer;
outages or disruptions attributable to Customer or its third-party technology or service providers, including use of the Cloud Services in a manner not expressly authorized in the Agreement;
suspension or termination of Customer’s right to access and use the Cloud Services in accordance with the Agreement;
factors outside of NiCE’s reasonable control, including Force Majeure Events, internet access or related problems, or Content;
outages or disruptions caused by: (i) software, infrastructure, databases, technology, operator error or equipment not controlled by NICE; or (ii) configuration changes not made by NICE; or
