NiCE Partner Terms and Conditions

These NiCE Partner Terms and Conditions (“Partner Terms”) governed by the Master Partner Agreement (“MPA”) between Partner and NiCE Systems, Inc (”NiCE”). Capitalized terms that are not otherwise defined in these Partner Terms shall have the meaning given to them in the MPA. NiCE and Partner agree as follows:

1. Definitions and Interpretation.

For purposes of the Agreement, the terms listed below will have the following meanings:

“Affiliate” means, when used with respect to a Party, any legal entity controlled by, controlling, or under common control with that Party, where “control” (and its derivatives) means: (a) the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation, person, or other entity through the ownership of voting securities; or (b) direct or indirect ownership in the aggregate of fifty percent (50%) or more of any class of voting or equity interests in the other corporation, person, or entity.

“Claim” means a claim, 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.

“Confidential Information” means non-public information that one Party (or their Affiliate) (the “Disclosing Party”) discloses to the other Party (“Receiving Party”) under this Agreement, and which is either marked as confidential (or words of similar import) or would reasonably under the circumstances be considered confidential. Confidential Information does not include information that after the date of disclosure becomes public through no fault of the Receiving Party, was already know 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 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 confidentiality or non-disclosure agreement prior to the Effective Date, the information disclosed under such agreement shall be deemed to be Confidential Information hereunder.

“Documentation” means the applicable specifications, user manuals, and self-help guides accompanying Services and Software.

“End User” means any third party that purchases Services or Software from Partner or from NiCE for such third party’s internal business purposes and not for further distribution pursuant to the terms of the Agreement. End User may also be referred to as “Customer”.

“Losses” means losses, liabilities, damages, and reasonable attorneys’ fees and costs.

“Party” means either NiCE or Partner, individually as the context indicates; and “Parties” means NiCE and Partner, collectively.

“Professional Services” means the consulting, installation, implementation, and training services to be provided by NiCE.

“Services” means the Cloud Services, Professional Services, Support, or other services provided by NiCE.

“Software” means software licensed to Partner or an End User pursuant to this Agreement. All references in this Agreement to purchases of Software are intended by the Parties to mean purchases of licenses to use Software. In the case of Software licensed to an End User for on-premise usage, such Software shall only be used by the End User on equipment owned or controlled by the End User.

“Support” means the technical support and maintenance services offered by NiCE.

“Territory” means the Territory listed in the MPA.

2. Appointment and Ownership.

2.1 Subject to the terms and conditions of this Agreement, NiCE appoints Partner, and Partner accepts the appointment, as a non-exclusive partner during the Term.

2.2 No title or ownership of the Services or Software will be transferred to Partner (or an End User) by way of this Agreement. 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 (“Marks”); and (c) all other NiCE supplied material developed for use in connection with the Services or Software. All rights not expressly granted to Partner (or an End User) herein are reserved to NiCE. If Partner or its End Users provide feedback, ideas, enhancement requests, or other suggestions (“Feedback”) about the Services or Software, NiCE and its Affiliates will own and may use or exploit such Feedback without restriction or obligation to Partner or any End User.

2.3 Partner shall promptly notify NiCE in writing of any unauthorized use of, or any claim or proceeding involving, the Services or Software, of which Partner is or becomes aware. Partner shall cooperate and reasonably assist NiCE with the termination or prevention of any such unauthorized use.

3. Restrictions and Conditions.

3.1 Partner shall not, and shall not authorize any third party (including an End 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; or (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 except as expressly authorized in this Agreement, (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 Agreement.

3.2 If the Partner sells Services or Software to End Users that are 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 End User’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, End User 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.

3.3 Partner shall not, unless otherwise agreed by NiCE in writing, transfer any of its rights under this Agreement.

3.4 Nothing in this Agreement shall be construed so as to restrict or preclude NiCE from: (a) selling, whether directly or indirectly, any of the Services or Software to any person or entity, without notice or compensation to Partner, whether within or outside the Territory; or (b) from entering into any other agreements in connection with any of the Services or Software, whether similar in nature to this Agreement, or otherwise whatsoever.

3.5 Partner shall make no representation or warranty, written or oral, on NiCE’s behalf, other than representations and warranties expressly authorized by NiCE in writing.

4. Limitation of Liability.

4.1 SUBJECT TO SECTIONS 4.2 AND 4.3 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR: (a) ANY LOSS OF USE, LOSS OF OR DAMAGE TO RECORDS OR DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOST REVENUE AND/OR PROFITS OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, HOWSOEVER ARISING AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, STRICT LIABILITY, INDEMNITY (EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT) OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND REGARDLESS OF WHETHER SUCH PARTY HAD RECEIVED NOTICE OR HAD BEEN ADVISED, OR KNEW OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES; OR (b) DIRECT DAMAGES IN EXCESS OF THE AMOUNTS PAYABLE IN THE PREVIOUS TWELVE (12) MONTHS UNDER THE ORDER OR STATEMENT OF WORK UNDER WHICH SUCH LIABILITY AROSE. HOWEVER, THE LIMITATION IN SECTION 4.1 WILL NOT APPLY TO PARTNER’S PAYMENT OBLIGATIONS UNDER THIS AGREMEENT OR FOR NICE TO RECOVER PAYMENT FOR USE OF THE SERVICES OR SOFTWARE IN EXCESS OF THE QUANTITY PURCHASED UNDER AN ORDER.

4.2 THE LIMITATIONS IN SECTION 4.1 AND ABOVE SHALL NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 4 ABOVE; OR (C) A BREACH BY PARTNER OF SECTIONS 3.1 OR 3.4 ABOVE OR SECTION 7 BELOW.

4.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THIS AGREEMENT WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. TO THE EXTENT THAT A PARTY MAY NOT AS A MATTER OF LAW DISCLAIM ANY WARRANTY OR LIMIT ITS LIABILITY, THE SCOPE OR DURATION OF SUCH WARRANTY AND THE EXTENT OF ITS LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. IF A WAIVER, RIGHT OR REMEDY IS EXERCISED PURSUANT TO MANDATORY LAW, IT SHALL BE EXERCISED SOLELY FOR THE PURPOSE PROVIDED AND IN CONFORMANCE WITH THE PROCEDURES AND LIMITATIONS EXPRESSLY PROVIDED FOR BY SUCH LAW.

5. Confidentiality.

5.1 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 proprietary 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 this Agreement. 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 of this Agreement.

5.2 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 all reasonable assistance, at the Disclosing Party’s expense, in opposing such required disclosure or seeking a protective order or confidential treatment for all or part of such Confidential Information; and (c) the Receiving Party discloses only such portion of the Confidential Information as is either permitted by the Disclosing Party or legally required, subject to any protective order or confidential treatment obtained by the Disclosing Party.

5.3 Upon the termination of this Agreement or upon the earlier request of the Disclosing Party, the Receiving Party shall: (a) promptly return to the Disclosing Party all Confidential Information (and all copies thereof) of the Disclosing Party, or upon written request from the Disclosing Party, destroy such Confidential Information and provide the Disclosing Party with written certification of such destruction; and (b) cease all further use of the Disclosing Party’s Confidential Information.

6. Trade Names, Trademarks and Goodwill. Partner agrees: (a) that all references it makes to the Services and Software, as authorized under this Agreement, shall use the Marks provided by NiCE; (b) to identify the Marks as belonging to NiCE; (c) to comply with any branding and instruction materials provided by NiCE from time to time; and (d) that it will not challenge NiCE’s ownership of the Marks.

7. Business Practices.

7.1 Partner hereby declares, undertakes, represents and warrants to NiCE, as follows:

• (a) Partner shall comply with all applicable laws, including anti-bribery and anti-corruption laws and regulations;
• (b) Partner shall cooperate in full with NiCE's compliance review process and shall respond in a timely manner to all requests for information and documents. Partner understands that NiCE may not approve business with the Partner without completion of a compliance review process.
• (c) Neither Partner, nor, to the best of the knowledge of Partner, any employees, officers, directors, shareholders, agents, affiliates, partnerships and any of Partner’s other representatives, have ever been convicted of, or pleaded guilty to, any crime or offence involving fraud or corruption;
• (d) Partner and each of its employees, officers, directors, shareholders, agents and affiliates, have not performed and will not perform, directly or through any third party, any of the following acts: the making or authorization or offer or promise of any payment, gift, loan, donation, service, benefit or other thing of value, whether in cash or in kind, to any official or employee or officer of any governmental authority, or any agency or subdivision thereof including, any federal, regional or local department, or any agency, or enterprise owned or controlled by any of the foregoing, or to any politician or political party or official thereof, or to any candidate for political office (hereinafter referred to collectively as “Government Officials”), for the purpose and/or with the possibility of: (i) influencing any act or decision of that person in her/his official capacity, including a failure to perform his official functions; (ii) inducing such person to use her/his influence with a Government Official to affect or influence any act or decision; and/or (iii) securing any improper advantage; and
• (e) Partner shall ensure that any third party engaged by it for the purpose of marketing, promoting, distributing or reselling any Software or Services or for the purpose of obtaining, executing or performing any resulting contract with an End User, whether or not known to or approved by NiCE, shall be bound by a provision substantially similar to the terms of Section 7 in its entirety.

7.2 Partner warrants, represents and undertakes to NiCE that, as of the Effective Date, its replies to NiCE’s due diligence questionnaire are true, complete, accurate and not misleading. The Partner will notify NiCE immediately of any future change in the information and declarations provided in the due diligence questionnaire, and failure to do so shall, without derogating from any other rights NiCE may have under contract or at law, be considered a material breach of any agreement executed between Partner and NiCE or any Affiliate of NiCE.

7.3 Partner hereby declares, undertakes, represents and warrants to NiCE that it will fully comply with any and all applicable sanctions and export restrictions as may be in effect from time to time, including with regards to the sale, license, reselling and distribution of the Software and Services to third parties, as well as the commercial terms applicable to such engagement (such as payment terms) and shall not by its act or omission cause NiCE to breach any sanctions or export restrictions imposed under any national or international laws. Without derogating from the foregoing, Partner shall not market, sell, promote, offer or provide access to, or engage with, any entity or person on the following lists: OFAC SDN, OFAC Non-SDN Entities, OFAC Sanctions, UN Consolidated List, and the EU Consolidated List, as may be amended from time to time.

7.4 Any breach by Partner of any undertaking in this Section 7 shall be deemed a fundamental breach of this Agreement and any other contract or business relationship between Partner and NiCE, and shall entitle NiCE, without liability to the Partner, to immediately terminate: (a) this Agreement and/or any and each Order or SOW; (b) any such other contract or business relationship; and/or (c) any and each Order issued by the Partner to NiCE pursuant to this Agreement or any such other contract or business relationship. Such right of termination for breach shall be in addition and without prejudice to any other rights and remedies which NiCE may have in contract and/or at law with respect to such breach.

7.5 Partner warrants, represents and confirms that all actions and activities within the scope of this Agreement shall be in full compliance with the principles set out in the NiCE Partner Code of Conduct available at nice.com, or any replacement location advised by NiCE from time to time.

7.6. Where any sanctions or export restrictions apply to any Orders or SOWs and specific payment terms or other conditions are required, NiCE may apply appropriate payment terms or other conditions to such Orders or SOWs, which shall prevail over the payment terms and other terms set out in this Agreement, Orders, and/or SOWs.

7.7 Partner shall ensure that End User Agreements with each End User include: (a) a provision that is the same in all material respects as Section 7.6, which applies to the End User’s payments and other obligations to Partner (“End User Trade Restrictions Term”); and (b) the right for Partner to immediately terminate its agreements with an End User if the End User breaches the End User Trade Restrictions Term, in addition and without prejudice to any other rights and remedies that Partner may have in contract and/or at law with respect to such breach. If an End User breaches the End User Trade Restrictions Term, Partner shall exercise the termination right referenced in Section 7.7(b).

8. Term and Termination.

8.1 This Agreement commences on the Effective Date and will continue until terminated in accordance with this Section (“Term”).

8.2 Either Party may terminate the Agreement: (a) for cause upon written notice to the other Party, if the other Party fails to cure a material breach of this Agreement within thirty (30) days after receiving notice thereof; (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.

8.3 Either Party may terminate this Agreement for its convenience by providing the other Party with at least thirty (30) days’ prior written notice.

8.4 Upon termination of this Agreement: (a) Partner’s authorization as an authorized NiCE partner shall cease, and Partner shall not represent or imply, to any third party or otherwise, that Partner is an authorized NiCE partner with respect to the Services, Software, use of the Marks, or otherwise; and (b) each Party will cease using the other Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party may retain such Confidential Information as may be required by law or for compliance purposes, and the confidentiality obligations of this Agreement will continue to apply for as long as the Confidential Information is retained by the Receiving Party. Termination will not relieve Partner of its obligations to pay: (i) any Fees accrued or due and payable to NiCE through the effective date of termination; and (ii) all future amounts due under all Orders and/or Statements of Work.

8.5 Except as expressly set forth in this Agreement, Partner shall not be entitled to any compensation or payment from NiCE upon or in connection with the termination of this Agreement.

9. General Provisions.

9.1 With respect to notices permitted or required under this Agreement related to the following matters, such notices must be in writing and delivered by personal delivery, by registered or certified mail (return receipt requested), or by internationally recognized overnight delivery service: (a) notices of breach; (b) notices of termination; and (c) notices regarding actual or potential legal action, including claims subject to indemnification hereunder. Notices will be deemed given: (i) on the date of delivery when delivered personally; (ii) one (1) business day after deposit for next day delivery with an internationally recognized overnight delivery service; and (iii) on the date of delivery when mailed by registered or certified mail (return receipt requested). Notices other than those described in Sections 9.1(a) through 9.1(c) may also be delivered by electronic mail and will be deemed given upon personal electronic reply acknowledging receipt. Notices will be sent to the addresses indicated on the signature page to the MPA, or to such other address as either Party may specify in writing.

9.2 Neither Party shall have the right to assign this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other Party. Notwithstanding the foregoing, NiCE may assign its rights and obligations under this Agreement to an Affiliate, or to any successor by way of merger, acquisition, or sale of all or substantially all of NiCE’s assets. Notwithstanding anything to the contrary contained herein, the Parties agree that NiCE shall have the right to subcontract, in whole or in part, any of the Services to be performed by NiCE hereunder.

9.3 This Agreement shall be governed, construed, and interpreted in accordance with the laws of the jurisdiction where the NiCE entity that licensed the Software (or provided access to a Service) is headquartered. Both Parties hereby consent and submit to the jurisdiction of the courts where NiCE has its registered office in all questions and controversies arising out of this Agreement provided that NiCE, at its option and at any time, may (a) seek and obtain injunctive and other relief in any court of competent jurisdiction, or (b) submit a claim to the jurisdiction of the courts where Partner has its registered or principal office. Both Parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”), and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to this Agreement. To the extent not prohibited by applicable law that cannot be waived, the Parties hereby waive, and covenant that they will not assert any right to trial by jury in any action arising in whole or in part under or in connection with this Agreement.

Both Parties hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations Convention on the International Sale of Goods (“CISG”), and any law of any jurisdiction that would apply UCITA or CISG or terms equivalent to UCITA or CISG to this Agreement. To the extent not prohibited by applicable law that cannot be waived, the Parties hereby waive, and covenant that they will not assert any right to trial by jury in any action arising in whole or in part under or in connection with this Agreement or any of the transactions contemplated hereunder.

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 this 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.

9.4 In the event of any conflict or inconsistency between the terms of: (a) this Agreement and any Order or SOW, the terms of this Agreement shall prevail, except to the extent that an Order or SOW specifically states that specified terms in the Order or SOW supersede specified terms in the Agreement, in which case such superseding terms will apply only to that Order or SOW; (b) any Order and any SOW, the terms of the Order shall prevail, except to the extent that a SOW specifically states that specified terms in that SOW supersede specified terms in the applicable Order, in which case such superseding terms will apply only to that SOW; (c) these Partner Terms and an Ancillary Document, the terms of the Ancillary Document shall prevail; (d) these Partner Terms or an Ancillary Document and the Partner Program, the terms of the Partner Terms or the Ancillary Document, as applicable, shall prevail; or (e) these Partner Terms or an Ancillary Document and the Rules of Engagement, the terms of the Rules of Engagement shall prevail. The Parties agree that, if a URL contained in this Agreement does not work or has stopped working, it will notify the other Party and NiCE will then repair or create a new URL to replace the 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 this Agreement. Whenever the terms “including” or “include” are used in this Agreement in connection with a single item or a list of items within a particular classification (whether or not the term is followed by the phrase “but not limited to” or words of similar effect) that reference 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.

9.5 Any provision of this Agreement, an Order, or a SOW that contemplates performance or observance subsequent to the termination of this Agreement, an Order, or SOW, and any other provision that by its nature may reasonably be presumed to survive any termination of this Agreement, an Order, or a SOW shall survive its termination.

9.7 Neither Party will be in default of any provision of this Agreement, or for failure in performance of its obligations hereunder (excluding payment obligations), resulting from acts or events beyond the reasonable control of such Party, including acts of God, civil or military authority, acts or threats of terrorism, civil disturbance, war, riot, strike or labor dispute (not related to either Party’s workforce), fires, floods, infectious disease, or act of government (each, a “Force Majeure Event”). Such Force Majeure Event, to the extent it prevents a Party’s performance or any other obligation under this Agreement, will extend the time for performance for as many days beyond the applicable performance date as is required to correct the effects of such Force Majeure Event.