Terms and Conditions
These Terms and Conditions govern all Transaction Documents.
“Affiliate(s)” means, when used with respect to a Party, any legal entity controlled by, controlling, or under common control with that Party, where “control” (and its derivatives) means: (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation, person, or other entity through the ownership of voting securities; or (b) direct or indirect ownership in the aggregate of fifty percent (50%) or more of any class of voting or equity interests in the other corporation, person, or entity.
“Agreement” means, collectively, these Terms and Conditions and the Transaction Documents.
“Claim” means a claim, demand, suit or proceeding brought against a Party by a third party.
“Cloud Services” means a subscription-based software-as-a-service offering in a hosted environment, including Support, as further described in a Transaction Document.
“Confidential Information” means non-public information that one Party (or their Affiliate) (the “Disclosing Party”) discloses to the other Party under this Agreement (the “Receiving Party”) and which is either marked as confidential (or words of similar import) or would reasonably under the circumstances be considered confidential. It does not include information that after the date of disclosure becomes public through no fault of the Receiving Party, was already known by the Receiving Party prior to its disclosure by the Disclosing Party, was rightfully disclosed to the Receiving Party by a third party without breach of an obligation of confidentiality owed to the Disclosing Party, or is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. NICE’s Confidential Information also includes materials or information related to requests for proposals, quotes, and NICE’s Services, Software and Documentation. Notwithstanding the foregoing, if the Parties entered into a non-disclosure agreement prior to the Effective Date, the information disclosed under such agreement shall be deemed to be Confidential Information hereunder.
“Content” means the electronic data and information provided by Customer through its use of the Cloud Services.
“Customer” means the Customer entity executing a Transaction Document.
“Documentation” means the applicable specifications, user manuals, and self-help guides accompanying Services or Software.
“Invoicing Policy” means NICE’s invoicing policy located at https://www.nice.com/nice-enterprise-terms-and-conditions/invoicing-policy/.
“Losses” means losses, liabilities, damages, and reasonable attorneys’ fees and costs.
“Order” means an ordering document executed by the Parties subject to these Terms and Conditions, which details the Services or Software, including the commercial details for such purchase. Orders do not include any preprinted terms on a Customer purchase order or other terms that are additional to, or inconsistent with, the terms of these Terms and Conditions. For Professional Services, the term ‘Order’ may mean a SOW.
“NICE” means the NICE entity executing a Transaction Document.
“Party” means either NICE or Customer, individually as the context indicates and “Parties” means NICE and Customer collectively.
“Professional Service(s)” means consulting, installation, implementation, and training services to be provided by NICE pursuant to a Transaction Document.
“Resulting Information” means data created by, or resulting from, use of the Services, including anonymized analyses, statistics, reports, and aggregations, all of which are NICE Confidential Information. For the avoidance of doubt, the term Resulting Information does not include personal data or any other information that could identify an individual.
“Service(s)” means the Cloud Services, Professional Services, Support, or other services to be provided by NICE pursuant to a Transaction Document.
“Software” means software licensed to Customer on hardware owned or controlled by Customer pursuant to an Transaction Document. All references in these Terms and Conditions to purchases of Software are intended by the Parties to mean purchases of licenses to Software.
“Statement of Work” or “SOW” means a document executed by the Parties pursuant to these Terms and Conditions, which describes the Professional Services to be provided by NICE.
“Support” means the technical support and maintenance services offered by NICE and identified in a Transaction Document.
“Transaction Document(s)” means, collectively, Orders, Statements of Work, and Customer purchase orders issued pursuant to these Terms and Conditions.
2. Ordering Procedure.
Customer or its Affiliates may purchase Services and Software pursuant to these Terms and Conditions by entering into Transaction Documents with NICE or its Affiliates. Each Affiliate of a Party that enters into Transaction Document agrees that it is bound by the terms of these Terms and Conditions as if it were either, as applicable, “Customer” or “NICE” with respect to such Transaction Document. Customer, or a Customer Affiliate, will make payments to the NICE entity set forth in the Transaction Document. Each Transaction Document will be deemed a separate contract between Customer, or the relevant Customer Affiliate, and NICE, or the relevant NICE Affiliate, which is the Party to such Transaction Document. Any disputes in relation to a Transaction Document shall be settled by the Parties to such Transaction Document, and only the Parties to such Transaction Document shall be responsible and liable to each other in relation to such Transaction Document.
3. License and Scope of Use of Services and Software.
3.1 Rights Granted. NICE grants Customer a non-exclusive, non-transferable, non-sublicensable right to use the Services or Software (including the Documentation) as set forth in a Transaction Document, for Customer’s own internal business purposes. Customer may make a reasonable number of copies of the Documentation, provided such reproductions include any copyright or proprietary labels, legends, or notices included in the Documentation.
3.2 Trials, Betas, and Evaluations. From time to time, NICE may provide Customer access to Services or Software for trial or evaluation purposes, for testing as a preview, beta or pre-release version, or for testing and development. Such Services and Software may have limited features, functions, or other technical limitations, including limits on duration, quantity, capacity, or restrictions on use in certain environments (e.g., non-production). Notwithstanding anything to the contrary contained in these Terms and Conditions, and except as expressly set forth in a Transaction Document, NICE does not provide Support, warranties, service level agreements, or indemnification for any such test and development, trial, evaluation, free, or beta Services or Software, which are provided to Customer “AS IS”.
3.3 Restrictions. Customer agrees it will not, nor will it allow any user to: (a) publish, disclose, copy, lease, modify, translate, loan, distribute, resell, transfer, assign, alter or create derivative works based on the Services or Software or any part thereof; (b) reverse engineer (except to the extent specifically permitted by statutory law), decompile, adapt, disassemble or otherwise attempt to discover source code or underlying algorithms, ideas, features or functions of the Services or Software; (c) attempt to defeat, disable, or circumvent any protection mechanism related to the Services or Software, including those intended to prevent, limit or control use, copying or access to the Services or Software; (d) test the vulnerability of a Service or Software, including scanning or penetration testing, nor attempt to breach any security or authentication mechanisms used by the Service or Software; or (e) access or use the Services or Software: (i) on or to service the systems, networks or devices of a third party; (ii) for benchmarking, development, or competitive purposes; (iii) in violation of the rights of any third party, or any applicable law or regulation (including intellectual property and data privacy laws); or (iv) for any purpose other than as expressly provided in this Section.
3.4 For Customers located in EMEA only: The activities described in Section 3.3(b) above are prohibited, except as and to the extent expressly authorized by applicable law, and solely in the event that the reproduction of the object code of the Software and translation of its form are necessary to obtain the information required to achieve the interoperability of the Software with other programs. In such circumstances, Customer shall inform NICE in writing, and NICE shall notify Customer within ten (10) business days from receipt of Customer’s notice that: (i) NICE will perform the work in order to achieve such interoperability and invoice Customer accordingly based on NICE’s then-current rates and policies (time, materials, travel); or (ii) Customer itself is entitled to undertake those actions, but only to the extent permitted by such applicable law and required to achieve such interoperability.
3.5 For U.S. Government Customers only: If Customer is a unit or agency of the United States or any of its instrumentalities (“Government”), or when the Services or Software are used for the benefit of a unit or an agency of the Government, the following applies: The Services and Software are deemed “commercial computer software” pursuant to DFARS Section 227.7202 and FAR Section 12.212 (and any successor sections). The use of the Services and Software by the Government is governed by this Agreement. Under no circumstances shall NICE be obligated to comply with any Government requirements regarding cost or pricing data or cost accounting requirements. If Customer’s use of the Services or Software would otherwise require compliance by NICE with such Government requirements, or in any manner affect NICE’s rights in the Services or Software, Customer must notify NICE of such Government requirement and obtain a waiver or exemption from such requirements for the benefit of NICE prior to any Government access to the Services or Software.
3.6 Artificial Intelligence. Customer acknowledges and agrees that it will not, either directly or indirectly, use, permit, or enable, whether by itself or in conjunction with a third party, any generative artificial intelligence or any other machine-based learning application (each or collectively, “AI”) to model, replicate, or emulate the functionality, design, or any other aspect of the Services or Software provided under this Agreement. For the avoidance of doubt, and without limiting its rights under Section 4 (Ownership and Intellectual Property Rights), NICE reserves all rights, and Customer has no rights, to reproduce, replicate, or otherwise use the Services or Software in any manner for purposes of training AI technologies or to generate similar applications or services, including technologies that are capable of generating software in the same style, functionality, or genre as the Services or Software.
3.7 Any violation of this Section 3 (License and Scope of Use of Services and Software) by Customer will be deemed a material breach of this Agreement, and NICE will have the right to either suspend delivery, access, or performance of the Services or Software or terminate these Terms and Conditions or any Transaction Document hereunder immediately, without any liability to Customer, and to seek all remedies available at law or in equity.
4. Ownership and Intellectual Property Rights.
4.1 Content. Customer has sole ownership of its Content, including all intellectual property rights related thereto. By providing Content to a Cloud Service, Customer grants to NICE and its Affiliates a limited, non-exclusive, non-sublicensable, non-transferable license to use, copy, store and display the Content to provide the Cloud Services to Customer and perform its obligations under this Agreement. During the Subscription Term, to the extent retrieval is supported by the Cloud Service, Customer may retrieve its Content at any time from the Cloud Services in accordance with the applicable Documentation. If such retrieval is not supported by the specific Cloud Service then, at any time during the Subscription Term, Customer may request extraction of Content from the Cloud Service and the Parties will enter into a Transaction Document for NICE to provide extraction Services at NICE’s then current rates for such Services.
4.2 Services and Software. No title or ownership of the Services or Software will be transferred to Customer by way of these Terms and Conditions or a Transaction Document. NICE has sole right to, and ownership of, all intellectual property rights in and to: (a) the Services, Software, and Documentation, and all modifications, enhancements, improvements, adaptations, and translations thereto; (b) the trademarks, service marks, and trade names associated with the Services or Software; (c) Resulting Information; and (d) all other NICE supplied material developed for use in connection with the Services or Software generally, exclusive of the Content. Although not required, if Customer provides feedback, ideas, or other suggestions (“Feedback”) about the Services or Software, then NICE and its Affiliates will own and may use and exploit such Feedback without restriction or obligation to Customer. All rights not expressly granted to Customer herein are reserved to NICE.
5. Customer Responsibilities.
Customer is responsible for monitoring its, and its users, use of the Services and Software for possible unauthorized usage and is solely responsible for any activity occurring under its use of the Services and Software. Customer will: (a) have sole responsibility for the accuracy, quality, and legality of all Content; and (b) take commercially reasonable efforts to prevent unauthorized access to, or use of, the Service or Software, and will immediately notify NICE if it becomes aware or has reason to believe that the Services are being used in an unauthorized manner. Customer is responsible for: (i) implementing any security features and options made available by NICE in connection with Services and Software; and (ii) routinely archiving and backing up Content. Without limiting the generality of the foregoing, Customer is responsible for all activity and charges incurred, including all telephony and network connectivity charges, within its assigned Business Unit. As used in herein, “Business Unit” means an independent, billable software instance of Cloud Services.
6. Invoicing, Payment and Taxes.
6.1 Invoicing of Fees and Payment. NICE will invoice Customer in accordance with the Invoicing Policy and Customer will pay all fees, expenses, or other costs as agreed upon a Transaction Document (“Fees”) to NICE within thirty (30) days from the invoice date. If Customer does not pay the Fees within such time, NICE may apply interest to the Fees owed at the rate of one and one-half percent (1½%) per month, or such lesser amount required by law, assessed from the due date through the date of payment. Without waiving any of its rights or remedies under the Agreement or at law, NICE reserves the right to suspend delivery, access, or performance of the Services or Software until any amounts that are outstanding and past due are paid in full by Customer. Transaction Documents are non-cancellable and non-refundable. If Customer decides to cease using the Services or Software during the Subscription Term, Customer will continue to be liable for all amounts payable under the Transaction Document for such Services or Software for the remainder of the Subscription Term, including all amounts that are subject to a minimum commitment, and Customer shall not be entitled to any refunds.
6.2 Taxes. Customer will, in addition to the other amounts payable under this Agreement, bear and pay all sales and other taxes, federal, state or otherwise, however designated that are levied or imposed by reason of the transactions contemplated hereunder, but excluding taxes on NICE’s income. Without limiting the foregoing, if any such taxes are imposed upon and paid by NICE, Customer will reimburse NICE within thirty (30) days of the date of an invoice from NICE for such amount. If, at any time, Customer claims that its purchase of Services or Software hereunder is exempt from any taxes, it will be Customer’s responsibility to provide NICE with the appropriate tax exemption certificate(s). In the absence of valid proof of exemption, NICE reserves the right to charge Customer for, and Customer agrees to pay, the applicable taxes.
7.1 Ethics, Compliance, and Anti-Corruption. NICE is committed to acting ethically and in compliance with applicable laws and regulations, and has policies and guidelines in place to provide awareness of and compliance with such laws and regulations. NICE is conscientious in its efforts to operate in accordance with the highest global ethical standards, as described in the NICE Code of Ethics and Business Conduct. NICE implements and maintains programs for its compliance with applicable anti-corruption and anti-bribery laws and has a zero-tolerance approach to bribery and corruption. NICE’s Anti-bribery and Corruption Policy prohibits the offering or soliciting of any illegal or improper bribe, kickback, payment, gift, or anything of value to or from any Customer, its employees, agents, or any government official on its behalf.
7.2 Export. The Services and Software may be subject to export laws and regulations of the United States and other jurisdictions (“Export Laws”). Each Party represents that it is not on any United States government denied-party list, including the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. NICE will comply with all Export Laws appliable to its provision of the Services or Software to Customer. Customer will comply with all applicable Export Laws and will not export, re-export, ship, transfer, permit access to, or otherwise use the Services or Software in any country subject to an embargo or other sanction by the United States, including the Crimea, Luhansk or Donetsk regions, Cuba, Iran, North Korea, or Syria, or for any purpose in violation of Export Laws.
8.1 NICE Warranties for Cloud Services. NICE warrants that during the Subscription Term the Cloud Services will operate substantially in accordance with the applicable Documentation. Customer’s sole and exclusive remedy, and NICE’s sole obligation, for NICE’s non-compliance with the foregoing warranty is the correction of the non-compliance at no additional cost to Customer.
8.2 NICE Warranty for Software. NICE warrants that the Software will operate substantially in accordance with the applicable Documentation during the ninety (90) day period beginning on the date on which the Software becomes available for download by Customer via NICE’s electronic software delivery system (“Warranty Period”). Customer’s sole and exclusive remedy, and NICE’s sole obligation, for NICE’s non-compliance with the foregoing warranty during the Warranty Period will be, in NICE’s sole discretion and at no charge to Customer, to correct or replace such Software so that it complies with the warranty set forth in this Section.
8.3 NICE Warranty for Professional Services. NICE warrants that Professional Services will be performed in a professional and workmanlike manner, consistent with reasonable and generally accepted professional standards and practices. Customer’s sole and exclusive remedy, and NICE’s sole obligation, for NICE’s non-compliance with the warranty in this Section is NICE’s reperformance of the non-conforming Professional Services, provided that Customer notifies NICE of a non-conformity with the warranty set forth in this Section during the thirty (30) day period following NICE’s completion of the applicable Professional Services.
8.4 The warranties set forth in Sections 8.1 and 8.2 will not apply to issues related to: (a) modification of the Cloud Services or Software, unless such modification constitutes a configuration change made pursuant to, and allowable under, the Documentation; (b) any unauthorized third-party software or hardware that are operated with, or incorporated in, the Cloud Services or Software; (c) negligence, abuse, or misapplication of the Cloud Services or Software, including use other than as set forth in the Documentation; (d) failure to comply with any minimum system requirements specified in the Documentation; or (e) failure in Customer’s infrastructure or network used to access the Cloud Services.
8.5 Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN THESE TERMS AND CONDITIONS, NO ADDITIONAL WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY NICE TO CUSTOMER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, NOR DOES NICE WARRANT THAT THE OPERATION OF THE SERVICES OR SOFTWARE WILL BE FREE FROM UNAUTHORIZED ACCESS OR HACKING ATTEMPTS, UNINTERRUPTED OR ERROR-FREE.
8.6 Customer Warranties. Customer warrants that: (a) Customer is the owner or authorized licensee of the Content, and has secured all necessary licenses, consents, authorizations, and waivers for the use of the Content; (b) the Content and Customer’s use of the Services or Software at all times complies with the terms of the Agreement; (c) Customer will only provide to NICE the minimum Content necessary to utilize the Services and Software under the Agreement; and (d) Customer will not use the Services or Software to conduct any illegal activity or engage in any other activity, which infringes upon the rights of NICE or any third party. Without waiving any rights or remedies NICE may have under the Agreement, at law or in equity, NICE reserves the right to suspend delivery, access, or performance of the Services or Software if Customer breaches this Section.
9. Confidential Information.
9.1 The Receiving Party will maintain the confidentiality of the Disclosing Party’s Confidential Information using at least the same standard of care as the Receiving Party employs for its own confidential information of a similar nature, but in any event no less than a reasonable standard of care. The Receiving Party will not use the Disclosing Party’s Confidential Information, except as permitted by these Terms and Conditions. The Receiving Party will not disclose the Disclosing Party’s Confidential Information to any other person except to its Affiliates and its and their respective officers, directors, employees, consultants, auditors, subcontractors and professional advisors (collectively, the “Representatives”) who have a need to know, and who are subject to a confidentiality obligation regarding such Confidential Information. The Receiving Party is responsible for its Representatives’ compliance with the confidentiality obligations set forth herein.
9.2 Notwithstanding anything to the contrary contained herein, the Receiving Party may disclose Confidential Information of the Disclosing Party if required by applicable law, regulation, order, or legal process, provided that: (a) to the extent permitted under applicable law, the Receiving Party gives the Disclosing Party prompt written notice of such requirement so that the Disclosing Party has an opportunity to seek a protective order, confidential treatment, or other appropriate remedy to such order; (b) the Receiving Party provides the Disclosing Party with reasonable assistance, at the Disclosing Party’s expense, in opposing such required disclosure or seeking a protective order or confidential treatment for all or part of such Confidential Information; and (c) the Receiving Party discloses only such portion of the Confidential Information as is either permitted by the Disclosing Party or legally required, subject to any protective order or confidential treatment obtained by the Disclosing Party.
9.3 For Customers located in EMEA only: If NICE processes any personal data on the Customer’s behalf when performing its obligations under the Agreement, the Parties record their intention that the Customer shall be the data controller and NICE shall be a data processor and in any such case: (a) the Customer shall ensure that it is entitled to transfer the relevant personal data to NICE so that NICE may lawfully process the personal data in accordance with the Agreement on the Customer’s behalf; and (b) the Parties shall comply with NICE’s data processing terms and conditions, a copy of which shall be provided to Customer upon Customer’s written request.
10. Term and Termination.
10.1 Term. These Terms and Conditions shall apply to Transaction Documents until the expiration or termination of such Transaction Documents in accordance with this Section 11 (“Term”). The termination of a Transaction Document pursuant to this Section 11 will not operate to terminate any other Transaction Documents.
10.2 Subscription Term. The Initial Subscription Term (as set forth in the Transaction Document) will renew for additional periods of time equal in length to the then-currently expiring term (“Renewal Term(s)” and, together with the Initial Subscription Term, the “Subscription Term”), and the Fees for each such Renewal Term may be increased by the greater of: (a) five percent (5%); or (b) the most recent annual increase in the Consumer Price Index for all Urban Consumers (CPI-U). Notwithstanding the foregoing, at least sixty (60) days prior to the conclusion of the then-current Subscription Term: (a) either Party may advise the other Party in writing that it does not wish to renew the Subscription Term (a “Non-Renewal Notice”); or (b) Customer may advise NICE that it desires to renew the Subscription Term for a different length of time than the expiring Subscription Term. A Non-Renewal Notice from Customer for any Cloud Service in the NICE CXone or NICE CXone Integrated solution families must be sent to Contract-Unsubscribe@nice.com, and for any Cloud Services within the NICE CX Solution family must be sent to CloudServicesUnsubscribe@nice.com; notice sent by any other method shall not constitute a valid Non-Renewal Notice of Customer. Customer understands that, if Customer fails to provide a Non-Renewal Notice to NICE, Customer will be responsible for payment in full for the Fees associated with the next Renewal Term regardless of whether Customer has issued a purchase order.
10.3 Termination. Either Party may terminate a Transaction Document: (a) for cause upon written notice to the other Party, if the other Party fails to cure a material breach of these Terms and Conditions or the Transaction Document, respectively, within thirty (30) days after receiving such notice; (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation for the settlement of debts or an assignment for the benefit of creditors; or (c) upon the dissolution of the other Party.
10.4 Effect of Termination.. Upon termination or expiration of a Transaction Document: (a) Customer will: (i) cease access and use of the applicable Services and Software; (ii) return or destroy all copies of any Software and Documentation in its possession or control; and (iii) certify in writing to the completion of such return or destruction upon NICE’s request; and (b) each Party will cease using the other Party’s Confidential Information, except to the extent that there are other Transaction Documents in effect that necessitate the exchange of Confidential Information. Notwithstanding the foregoing, either Party may retain such information as may be required by law or for compliance purposes, and the confidentiality obligations of these Terms and Conditions will continue to apply for as long as the Confidential Information is retained by such Party. Termination of a Transaction Document will not relieve Customer of its obligations to pay: (1) any Fees accrued or due and payable to NICE through the effective date of termination; and (2) all future amounts due under all Transaction Documents.
10.5 Content Retrieval. Upon Customer’s written request made on or prior to expiration or termination of the applicable Subscription Term of a Transaction Document (“Customer Retrieval Request”), NICE will make the Content available in the Cloud Service as set forth in the Documentation for Customer to retrieve for a period of time as agreed by the Parties (which shall not to exceed thirty (30) days), after such expiration or termination (“Retrieval Period”). If such retrieval is not supported by the Cloud Service, then, upon NICE’s receipt of a Customer Retrieval Request and, subject to NICE’s then current Fees set forth in Transaction Document, NICE will extract Content in the Cloud Service and provide it to Customer in a mutually agreed to format. Following the expiration of the Retrieval Period or such extraction of the Content by NICE, NICE will have no obligation to maintain the storage of Content, and Customer authorizes NICE to, unless legally prohibited, delete all remaining Content. Any residual Content remaining in NICE systems thereafter will continue to be subject to the confidentiality obligations set forth in these Terms and Conditions until such Content is deleted by NICE.
11.1 NICE Indemnification. NICE will defend Customer from and against any Claim made or brought against Customer to the extent such Claim alleges that the Services or Software used in accordance with the Agreement, infringes or misappropriates such third party’s United States patent, copyright, trademark, or trade secret, and will indemnify Customer against Losses awarded against Customer as a result thereof. The foregoing defense and indemnity obligations will not apply if: (a) the allegation does not state with specificity that the Services or Software are the basis of the Claim; or (b) if a Claim arises from: (i) specifications, technology, applications, or designs furnished by Customer or a third party on Customer’s behalf; (ii) the use or combination of the Services or Software or any part thereof with any product or service, data, or processes not provided by NICE, if the Services or Software or use thereof would not infringe without such combination; (iii) the modification of the Services or Software not provided by NICE’s authorized personnel; (iv) Services or Software under a Transaction Document for which there is no charge; (v) Customer’s failure to use the Services or Software in accordance with the Documentation; or (vi) the Content.
11.2 If Customer is enjoined from using the Services or Software, or NICE reasonably believes Customer will be so enjoined, NICE will have the right, at its sole option and expense to: (a) procure for Customer the right to continue using the affected Services or Software in accordance with the Agreement; (b) replace or modify the Services or Software so that they are no longer claimed to infringe or misappropriate, provided their functionality after modification is substantially equivalent pursuant to the Documentation; or, if neither (a) or (b) are feasible using commercially reasonable efforts, then: (c) terminate Customer’s subscriptions or license for the affected Services or Software upon thirty (30) days’ written notice and, as applicable, refund to Customer any prepaid Fees for the affected Services for the unexpired Subscription Term, or the prepaid Fees for the affected licensed Software, pro-rated on a three (3) year straight line basis, beginning on the delivery date. The collective obligations of NICE pursuant to Sections 11.1 and 11.2 state the sole and exclusive liability of NICE, and Customer’s sole and exclusive remedy, with respect to intellectual property infringement or misappropriation.
11.3 Customer Indemnification. Customer will defend NICE and its Affiliates from and against any Claim made or brought against NICE to the extent such Claim: (a) alleges that any Content or any service, product, or technology provided by or on behalf of Customer hereunder, infringes or misappropriates such third party’s patent, copyright, trademark, or trade secret, or violates another other right of such third party; (b) arises from any Content or personal data provided to NICE by or on behalf of Customer; or (c) arises from Customer’s use of Content, the Services, or Software in an unlawful manner. Customer will indemnify NICE and its Affiliates from and against Losses awarded against NICE as a result of any Claim described in this Section.
11.4 Indemnification Procedure. The indemnification obligations above are subject to the Party seeking indemnification (“Indemnified Party”) hereunder providing the other Party (“Indemnifying Party”) prompt written notice of the specific Claim, provided that any delay in providing such notice will not relieve the Indemnifying Party of its obligations hereunder, except to the extent the delay prejudices its ability to defend the Claim and provided that the Indemnified Party provides all reasonable assistance to the Indemnifying Party. The Indemnified Party may retain its counsel of its own choosing to monitor the defense of the claim at its own expense. The Indemnifying Party may settle any Claim without the Indemnified Party’s written consent, unless such settlement: (a) does not include a release of all covered claims pending against the Indemnified Party; (b) contains an admission of liability or wrongdoing by the Indemnified Party; or (c) imposes any obligations upon the Indemnified Party other than an obligation to cease using any infringing items.
12. Limitation of Liability.
12.1 IN NO EVENT WILL EITHER PARTY, TOGETHER WITH ITS AFFILIATES, HAVE ANY LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR SIMILAR DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT (WHETHER ARISING IN CONTRACT, TORT OR OTHERWISE), INCLUDING LOST PROFITS, REVENUES, GOODWILL, LOSS OF OR CORRUPTION OF DATA, INTERRUPTED COMMUNICATIONS, OR BUSINESS INTERRUPTION, AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, SUCH DAMAGES WERE FORESEEABLE, OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
12.2 IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY, TOGETHER WITH ITS AFFILIATES, ARISING OUT OF OR RELATED TO THE AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAYABLE OR PAID BY CUSTOMER IN THE PREVIOUS TWELVE (12) MONTHS UNDER THE TRANSACTION DOCUMENT UNDER WHICH SUCH LIABILITY AROSE. HOWEVER, THE FOREGOING LIMITATION WILL NOT APPLY TO CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6 OR FOR NICE TO RECOVER PAYMENT FOR USE OF THE SERVICES OR SOFTWARE IN EXCESS OF THE QUANTITY PURCHASED UNDER A TRANSACTION DOCUMENT.
12.3 The limitations in Section 12.1 and Section 12.2 above will not apply to a Party’s liability for its infringement or misappropriation of the other Party’s intellectual property rights, its indemnification obligations under Section 11 (Indemnification), or to the extent prohibited by law.
13. Third-Party Providers.
NICE has existing arrangements with certain third-party technology service providers, which provide NICE with the ability to supplement its employee workforce providing Services to NICE’s customers (“Third-Party Provider(s)”). Notwithstanding anything to the contrary contained in a Transaction Document, Customer acknowledges and agrees that NICE may use Third-Party Providers to assist NICE in the delivery of Services under the Agreement, provided that NICE remains responsible for such Third-Party Providers’ compliance with the terms of the Agreement.
14. General Provisions.
14.1 Notices. With respect to notices permitted or required under the Agreement related to the following matters, such notices must be in writing and delivered by personal delivery, by registered or certified mail (return receipt requested), or by internationally recognized overnight delivery service: (a) notices of breach; (b) notices of termination; and (c) notices regarding actual or potential legal action, including claims subject to indemnification hereunder. Notices will be deemed given (i) on the date of delivery when delivered personally, (ii) one (1) business day after deposit for next day delivery with an internationally recognized overnight delivery service, and (iii) on the date of delivery when mailed by registered or certified mail (return receipt requested). Notices other than those described in subsections: (a) through (c) above may be delivered by email, and will be deemed given upon personal reply acknowledging receipt. Notices will be sent to the attention of each Party’s Legal Department at their respective addresses provided in the Transaction Document and if no address is included for NICE in the Transaction Document, then such notices should be sent to email@example.com.
14.2 Assignment. Neither Party will have the right to assign the Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other Party. Notwithstanding the foregoing, NICE may assign its rights and obligations under the Agreement to an Affiliate, or to any successor by way of merger, acquisition, or sale of all or substantially all of NICE’s assets.
14.3 Choice of Law, Venue, and Remedies. The Agreement shall be governed by and construed in accordance with the laws of the applicable NICE Affiliate that executes a Transaction Document. In case of: (a) NICE Systems, Inc., NICE Systems Technologies Inc., Nexidia, Inc., Mattersight Corporation, inContact, Inc., NICE Systems Latin America, Inc., and VoApps, Inc., such law shall be the laws of the State of New Jersey, excluding its rules of conflicts of law and the Parties submit to the exclusive jurisdiction of the state and federal courts in New Jersey in all questions and controversies arising out of the Agreement; (b) NICE Systems Canada, Ltd. such laws shall be the laws of the Province Ontario, Canada excluding its rules of conflicts of law and the Parties submit to the exclusive jurisdiction of the state and federal courts in Toronto, Ontario; (c) NICE Systems UK Limited, NICE France SARL, NICE Systems GmbH, NICE Netherlands B.V. and NICE Switzerland AG, such law shall be the laws of England and the Parties submit to the exclusive jurisdiction of the English courts in all questions and controversies arising out of the Agreement provided that NICE, at its option and at any time, may seek and obtain injunctive and other relief in any court of competent jurisdiction; (d) NICE Systems Australia Pty Ltd, such laws shall be the laws of the State of New South Wales excluding its rules of conflicts of law and the Parties submit to the exclusive jurisdiction of the state and federal courts in Sydney in all questions and controversies arising out of the Agreement; and (e) NICE Ltd, such laws shall be the laws of Israel excluding its rules of conflicts of law and the Parties submit to the exclusive jurisdiction of the state and federal courts in Tel Aviv-Jaffa in all questions and controversies arising out of the Agreement provided that NICE, at its option and at any time, may seek and obtain injunctive and other relief in any court of competent jurisdiction.
Both Parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”), and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to the Agreement. To the extent not prohibited by applicable law that cannot be waived, the Parties hereby waive, and covenant that they will not assert any right to trial by jury in any action arising in whole or in part under or in connection with these Terms and Conditions or any Transaction Document.
In addition to any other remedies available at law or in equity, in the event of a breach by either Party of any term of the Agreement, including a breach of confidentiality obligations, monetary damages may not be sufficient, and the non-breaching Party may seek injunctive or other equitable relief to prevent the continuation or recurrence of such breach, without the need to prove actual damages. Such relief will be in addition to any damages or other remedies to which the non-breaching Party may be entitled.
14.4 Order of Precedence and Interpretation. In the event of any conflict or inconsistency between these Terms and Conditions and any Transaction Document, the terms of these Terms and Conditions shall prevail except where a Transaction Document specifically states that specified terms in the Transaction Document supersede specified terms of the Terms and Conditions. Customer purchase orders shall not supersede any of the terms of these Terms and Conditions. The Parties agree that, if a URL contained in the Agreement does not work or has stopped working, it will notify the other Party and NICE will then repair or create a new URL to replace the non-working URL. Words importing the singular include the plural, words importing any gender include every gender, and words importing persons include entities, corporate and otherwise; and (in each case) vice versa. The section headings are for ease of reference only and are not intended to affect the interpretation or construction of the Terms and Conditions. Whenever the terms “including” or “include” are used in the Agreement in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase “but not limited to” or words of similar effect) that reference will be interpreted to be illustrative only, and will not be interpreted as a limitation on, or an exclusive enumeration of the items within such classification.
14.5 Survival. Any provision of these Terms and Conditions or any Transaction Document that contemplates performance or observance subsequent to the termination thereof, and any other provision that by its nature may reasonably be presumed to survive any termination of these Terms and Conditions or any Transaction Document shall survive its termination.
14.6 Independent Contractors. It is expressly agreed that the Parties are acting hereunder as independent contractors and under no circumstances will any of the employees of one Party be deemed the employees of the other Party for any purpose. Thee Terms and Conditions will not be construed as authority for either Party to act for the other Party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other Party except to the extent and for the purposes expressly provided for and set forth herein.
14.7 Force Majeure. Neither Party will be in default of any provision of the Agreement, or for failure in performance of its obligations hereunder (excluding payment obligations), resulting from acts or events beyond the reasonable control of such Party, including acts of God, civil or military authority, acts or threats of terrorism, civil disturbance, war, riot, strike or labor dispute (not related to either Party’s workforce), fires, floods, infectious disease, or act of government (each a “Force Majeure Event”). Such Force Majeure Event, to the extent it prevents a Party’s performance or any other obligation under the Agreement, will extend the time for performance for as many days beyond the applicable performance date as is required to correct the effects of such Force Majeure Event.
14.8 Waiver and Severability. No provision of the Agreement will be deemed waived and no breach deemed excused unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. No consent by either Party to, or waiver of, a breach by the other, whether express or implied, will constitute consent to, waiver of, or excuse for any different or subsequent breach. All provisions of the Agreement are severable, and the unenforceability or invalidity of any of the provisions of the Agreement will not affect the validity or enforceability of the remaining provisions of the Agreement.
14.9 Publicity. Customer authorizes NICE and its Affiliates to use Customer’s name and logo during the Term for sales and marketing purposes, including to identify Customer as a customer of the Services or Software. Customer may withdraw this authorization upon reasonable prior written notice to NICE.
14.10 Press Releases. Customer agrees that NICE may issue a mutually agreed upon press release regarding its relationship with Customer ( “Press Release”). Customer agrees to contribute a quote from one of its employees involved with the relationship with NICE to for use in the Press Release. NICE will provide a draft of the Press Release to Customer for its review and, within five (5) business days following its receipt of the draft, Customer will provide NICE with any proposed changes to the Press Release.
14.11 Non-Solicitation. Except to the extent prohibited by applicable law, during the Term and for a period of twelve (12) months thereafter, each Party agrees that it will not, directly or indirectly, solicit for employment any employee of the other Party or its Affiliates who, at any time during the Term, performed duties related to the Services acquired by Customer pursuant to the Agreement, nor will such Party solicit or encourage any such person to terminate their employment relationship with the other Party or its Affiliate.
14.12 Counterparts. The Agreement may be executed in any number of counterparts, each of which is deemed to be an original and all of which taken together will constitute a single agreement. Additionally, the Parties agree that these Terms and Conditions, including any Transactional Document, and any amendments thereto, may be signed using electronic signatures and will have the same effect as original signatures.
14.13 Entire Agreement. These Terms and Conditions, along with any Transaction Document executed hereunder, and any NICE policies explicitly incorporated by reference, collectively constitute the entire agreement and understanding between the Parties regarding the subject matter hereof, and supersede any other written or oral agreement that the Parties may have had with respect thereto. No statement or inducement with respect to the subject matter by either Party or by any agent or representative of either Party, which is not contained in the Agreement, is valid or binding between the Parties. No provision of the Agreement may be modified or amended except by a written instrument duly executed by each of the Parties. Any such modification or amendment will not require additional consideration to be effective. Customer purchase orders, if any, are provided for Customer’s administrative purposes only and any preprinted terms on them will not apply or have any effect on the terms of the Agreement.