TERMS AND CONDITIONS FOR USE OF NICE SERVICES
1.1 “Account Administrator” means a Client’s designated employee or contractor who has been granted
1.2 “Affiliate” means with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities (but only as long as such person or entity meets these requirements).
1.3 “Agreement” means collectively these terms and conditions and the attached exhibits, schedules, and amendments
1.4 “Brand Licensor” means a person or entity that has the authority to license a trademark or service mark in connection with the sale of products or services under such mark.
1.5 “Client Content” means any Client logos, trademarks, trade names, service marks, and all other content transmitted by Client or its Users to or through the Service, or otherwise provided to NICE for use in providing the Service.
1.6 “Client Data” means any Client-specific data provided or submitted by Client or its customers to or through the Service. “Client Materials” means Client Content and Client Data, collectively.
1.7 “Confidential Information” means this Agreement, the NICE Technology, NICE pricing information, Client Data, and any other information disclosed by one party ( “Discloser”) to the other ( “Recipient”) in connection with this Agreement.
1.8 “Documentation” means the manuals and online help NICE provides for use in connection with the Service.
1.9 “Electronic Communications” means any transfer, transmission, and/or receipt of text, images, data, or other information of any nature to, from, or through the Service.
1.10 “Intellectual Property Rights” means patents, copyrights, trademarks, service marks, trade names, domain name rights, know-how
1.11 “Operator” means a person or entity (e.g., a franchisee, licensee, distributor, or reseller) who is authorized by a brand licensor to sell specific goods or services under the brand licensor’s trademarks or service marks at
1.12 “Operator Portal” means a unique instance of the SATMETRIX NPX portal for measurement, use, and reporting of content that is specific to an operator and that is associated with specific store location(s) or specific delivery or service area(s) where goods and/or services are sold or provided under
1.13 “Order Schedule” means a document detailing the Service(s) to be provided by NICE, the fees associated therewith, and any other transaction-specific terms and conditions. If the parties agree, an Order Schedule may be used in connection with, or in lieu of, a Statement of Work (SOW). In the event that multiple Order Schedules will apply to this Agreement, such Order Schedules will be numbered sequentially. Any and all mutually executed Order Schedule(s) are deemed incorporated herein by this reference. Each Order Schedule is intended to define a separate contract particular to that order, incorporating by reference the terms and conditions of the applicable portions of this Agreement. An Order Schedule may also contain other terms or conditions, mutually agreed upon by NICE and Client, which apply specifically to that particular order/contract. Client agrees that each Order Schedule will be signed by a representative having the authority to bind
1.14 “Permitted Purpose” means
1.15 “NICE Technology” means NICE proprietary software and other technology provided via the Service, including any enhancements, modifications, and derivative works thereto.
1.16 “Service(s)” means NICE’s hosted service described in an Order Schedule, and/or ancillary NICE proprietary products and/or services provided to Client by NICE.
1.17 “Service Term(s)” means the Order Schedule-specified period(s) during which Users may use the Service.
1.18 “Statement(s) of Work” or “SOW” means the form describing the Service subscription(s), the number and type of other Service(s) contracted for, the applicable fees, the billing period, and other related terms and conditions. Upon execution by the parties of the Order Schedule governing the applicable SOW, such SOW will be incorporated into this Agreement by reference.
1.19 “User” means Client’s or Client’s Operator’s employees, consultants, contractors, or agents who are authorized to use the Service and have been supplied user IDs and passwords by Client (or by NICE at Client’s request), provided, however, that no employee, consultant, contractor, or agent who is a NICE competitor can be a “User” for purposes of this Agreement, unless NICE otherwise agrees in writing, in advance.
2. PROVISION OF SERVICE AND NICE TECHNOLOGY.
2.1 Sales and Delivery Terms.
2.2 Provision of Service; Access Right. Subject to Client’s payment of the applicable fees, during the applicable Service Term, NICE will provide to Client the Service described on one or more Order Schedule(s). The Service includes the standard features and functionality applicable to the Service, and any new features that augment or enhance such Service, excluding any new modules that NICE markets and sells as a separate service. NICE will host the Service and may update the content, functionality, and user interface of the Service from time to time. Unless otherwise specified in the applicable Order Schedule, the hosted Services are purchased on a subscription basis.
2.3 Access and License Restrictions. Within thirty (30) days following the commencement of the Service, Client agrees to add Satmetrix.com and any other NICE-specified Service-related email domain(s) to Client’s whitelist, in order to facilitate the transmission and receipt of Service-related emails. Client will not (i) sublicense, sell, transfer, assign, distribute or otherwise commercially exploit the Service or NICE Technology; (ii) modify or create derivative works based on the Service or NICE Technology; (iii) create Internet “links” to the Service or “frame” or “mirror” any content provided in connection therewith; or (iv) reverse engineer, or copy, or otherwise access the Service or NICE Technology in order to build a product using features, functions or graphics similar to the Service or NICE Technology, (v) copy any features, functions, or graphics of the
2.4 Service Level. During the Service Term, the hosted Service platform (production site) will meet the service level specified in the “Service Level Commitment” listed on the NICE website located at satmetrix.com/satmetrix-pro-slc, or such other URL as specified by NICE, which URL is incorporated by reference as applicable. NICE reserves the right to update the Service Level Commitment or any support policies from time to time, provided that no such update will materially and adversely affect Client’s rights as provided under the preceding Service Level Commitment or support policy.
2.5 Security/Data Integrity. During the Service Term, NICE will maintain reasonable administrative, physical, and technical safeguards designed for the protection, confidentiality, and integrity of Client Data (at least as rigorous as the safeguards NICE employs to protect its own data). To protect the privacy of any Client Data that may have been provided, NICE employs industry-standard controls including physical access controls, encryption, Internet firewalls, intrusion detection, and network monitoring. In addition, access to confidential information is limited to those individuals and agents having a need to know. Upon request, NICE will provide additional information regarding NICE’s data security policies and procedures. Client acknowledges that it is not feasible for NICE to accommodate conflicting data security requirements from multiple NICE clients; accordingly, in the event of a conflict between NICE’s data security policies and procedures and any additional or different policies and procedures that Client requests that NICE will follow, NICE will use good faith efforts to accommodate Client’s request as and where feasible; however, failure to accommodate
2.6 Professional Services. NICE will provide such resources and utilize such NICE employees and/or consultants as NICE deems necessary to perform any implementation, training, consultation or other professional services described in an SOW or Order Schedule. The manner and method used by NICE to perform such professional services are subject to NICE’s sole discretion. Client agrees to provide NICE with any required Client materials needed for NICE to perform the professional
2.7 Trial Subscriptions. If Client receives free access or a trial or evaluation subscription to the Services (a “Trial Subscription”),
2.8 Orders by Affiliates. Any Affiliate of Client may enter into separate Order Schedules with NICE for the provision of Services under this Agreement. Each such Order Schedule must specifically incorporate this Agreement by
Each party will abide by all applicable laws and regulations in connection with use of the Service. Client will be responsible for any and all access to and use of the Service by any actual or purported User. Client will be responsible and liable for the acts and omissions of all Users in connection with this Agreement (such that any act or omission committed by a User that would, if committed by Client as a party to this Agreement, would be deemed a breach of this Agreement, will be deemed a breach hereof, regardless of whether or not a User is a signatory to this Agreement), as well as any and all access to and use of the Service by any User or any other person logging in under a User ID registered under Client’s account or providing and/or receiving Client Data or other information through the Service. Client acknowledges that Client’s access information, including User IDs and passwords of its Users, will be Client’s “key” to the Service and, accordingly, Client will be responsible for maintaining the confidentiality of such access information (including each User ID and password). Client will promptly: (i) notify NICE of any unauthorized use of any password or account or any other known or suspected security breach; (ii) report to NICE and use reasonable efforts to stop any known or suspected copying or distribution of NICE Technology. Client will not provide false identity information to gain unauthorized access to the Service. Each Account Administrator will have the ability to create additional User accounts and additional licensed Operator Portals. There is no additional charge for adding User accounts associated with an existing Operator Portal ID unless otherwise indicated in the Order Schedule. Client’s designated Account Administrators are responsible for ensuring that Users are assigned the appropriate access level. Client is responsible for deactivating an Account Administrator’s User account upon his or her termination of employment or service or as Client deems appropriate. If Client is an Operator, Client acknowledges and agrees that the Users designated by the Brand Licensor who is associated with Client’s User accounts will have access to all Client Data or other content associated with Client’s User accounts. Client agrees to ensure that Client’s end users have Internet access and supported browsers to access the NICE technology.
4. ACCOUNT INFORMATION AND DATA.
5. INTELLECTUAL PROPERTY OWNERSHIP.
NICE owns all right, title and interest, including related Intellectual Property Rights, in and to the Service, NICE Technology, survey questions provided by NICE, , and any related suggestions, enhancement requests, and feedback. Subject to the terms and conditions of this Agreement (including Client’s obligation to pay all fees hereunder when due), NICE grants Client a non-exclusive, non-transferable, non-sublicenseable, revocable license to use any survey questionnaire provided by Satmetrix in connection with the Service, solely for the Permitted Purpose and not any other purpose, including engaging in the business of conducting surveys, and not for the benefit of any third party. Client acknowledges that the Satmetrix name, the Satmetrix logo, the Net Promoter logo, and the product names associated with the Service are trademarks of NICE or third parties, and no license to such marks is granted herein. Client agrees that, where practicable, the first or more prominent use of a NICE mark (including Net Promoter Score, Net Promoter, and NPS) within a Client document, presentation, or website, will be accompanied by the following trademark attribution statement(s), as appropriate: “Satmetrix is a trademark of NICE Systems Inc.. Net Promoter Score, Net Promoter, and NPS are trademarks of NICE Systems, Inc., Bain and Company, Inc., and Fred Reichheld.” Client agrees that during the Service Term, NICE, in its sole discretion, may use Client trade names, trademarks, service marks, and logos in presentations, marketing materials, customer lists, financial reports and web site listings (including links to your web site) solely for the purpose of advertising or publicizing the Service.
6. BILLING AND PAYMENT.
7. TERM; TERMINATION.
This Agreement commences on the Effective Date and, unless earlier terminated pursuant to this Agreement, will continue for the period specified as the Contract Term in an Order Schedule. Unless (i) Client provides NICE written notice that it does not intend to renew the NICE Hosted Service at least thirty (30) days in advance of the end of the Contract Term, or (ii) NICE gives Client written notice that it does not intend to renew the NICE Hosted Service at least thirty (30) days in advance of the end of the Contract Term, each Order Schedule that includes the purchase of the NICE Hosted Service will be automatically renewed for a period of one year (each, a “Renewal Hosted Service Term”). The Renewal Hosted Service Term shall be: (i) on the terms and conditions set forth in this Agreement, and (ii) subject to the commercial terms provided in the Order Schedule that includes the purchase of the NICE Hosted Service. Should
8. REPRESENTATIONS AND WARRANTIES.
8.1 Representations and Warranties. Each party represents and warrants that it has the power and authority to enter into this Agreement. Client represents and warrants that, to the best of Client’s knowledge and belief: (a) Client Data does not and will not violate the terms or conditions of this Agreement, applicable law, or any third party’s privacy rights; and (b) any and all contact information that it provides to NICE, including email addresses sent to or via the Service, will not include any inaccurate information. NICE warrants that the applicable hosted Service, when used in accordance with the instructions in the Documentation, will materially conform to the description in the Documentation. Client will have thirty (30) days following the Order Schedule date (or if no Order Schedule applies, then 30 days following the initial provision of any Service) in which to notify NICE of a breach of the foregoing warranty, in which event, NICE’s entire liability and Client’s sole and exclusive remedy will be, at NICE’s election, to either: (i) reperform, modify, or replace the Service so that it so conforms to such warranty; or (ii) provide a credit of the fees paid for the affected Service, in which event this Agreement, and Client’s right to access the refunded Service will immediately terminate. Any remedy provided by NICE will not extend the original warranty period. NICE will have no obligation under this Agreement to correct, and NICE makes no warranty with respect to, errors caused by or relating to: (a) use of the Service in a manner inconsistent with the Documentation or this Agreement; or (b) third party hardware or software misuse, modification, or malfunction.
8.2 Warranty Disclaimers. EXCEPT AS SET FORTH IN SECTION 8.1, ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, AND STATUTORY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY EACH PARTY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NICE’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, PERSONAL COMPUTERS, AND ELECTRONIC COMMUNICATIONS. NICE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. IN ADDITION, NICE RESERVES THE RIGHT TO UPGRADE, CHANGE, ADD, OR MODIFY SOFTWARE AND/OR SERVICES WITH OR WITHOUT NOTICE, AND WITHOUT PENALTY. IN ADDITION, NICE MAY AT ANY TIME, (A) INTERRUPT THE OPERATION OF THE SERVICES (OR ANY PORTION THEREOF) AS NECESSARY TO PERFORM ROUTINE OR NON-ROUTINE MAINTENANCE, ERROR CORRECTION, OR OTHER CHANGES, AND/OR (B) REVOKE OR SUSPEND ANY LOGIN OR PASSWORD UPON ANY SUSPECTED OR ACTUAL VIOLATION OF SECTION 2.3, OR TO FULFILL NICE’ OBLIGATIONS UNDER SECTION 2.5.
NICE will indemnify and hold Client harmless from and against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) to the extent arising out of or in connection with a claim alleging that the hosted Service directly infringes or misappropriates
10. LIMITATION OF LIABILITY.
10.1 SUBJECT TO SECTION 10.2 BELOW, IN NO
10.2 The limitations and exclusions in Section 10.1 above shall not apply to (a) breach of Section 2.2, 2.3, 3, 5, 11.1 or 11.2; (b) the indemnification obligations of Client under article 9; (c) Client’s responsibility for the legal sufficiency of Client Materials; (d) any liability arising out of fraud; (e) any liability for death or bodily injury arising out of the negligence of the relevant Party in the performance of this Agreement; or (f) any liability which cannot lawfully be excluded under applicable law
10.3 EACH PARTY ACKNOWLEDGES THAT ITS INDEMNIFICATION OBLIGATIONS ARE A DIRECT, RATHER THAN AN INDIRECT OBLIGATION OWED TO THE OTHER PARTY AND, ACCORDINGLY, THE FOREGOING DISCLAIMER WILL NOT BE CONSTRUED TO LIMIT EITHER PARTY’S OBLIGATION TO PAY AMOUNTS TO THIRD PARTIES PURSUANT TO SUCH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CLIENT ACKNOWLEDGES AND AGREES THAT NICE’S LICENSORS WILL HAVE NO LIABILITY UNDER THIS AGREEMENT. CLIENT ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS OF LIABILITY, THE ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SIGNIFICANTLY DIFFERENT.
11.3 NICE has joined the US-EU data privacy safe harbor as a data processor and, to the extent required, will maintain its certification under safe harbor on an annual basis, and NICE agrees: (i) to process any Personal Data transferred to or collected by NICE only as a Data Processor (as defined in the EU Data Privacy Directive) on behalf of Client, (ii) to maintain appropriate security measures, and (iii) to comply with Client’s reasonable instructions regarding processing of Personal Data.
12. ONLINE ACADEMY AND RESEARCH.
NICE grants you permission to access and use the Site for your non-commercial use. You may not download (other than page caching), or modify any portion of it, except with the express written or e-mailed consent of NICE. Your permission to use the Site does not include any resale or commercial use of the Site or its contents, whether provided by NICE or registered Users contributing content in message boards, chats, blogs, wikis or other consumer-generated-content tool; or any derivative use of this Site or its contents; or any use of data mining, robots or similar data gathering and extraction tools or processes. You agree not to store in any form, distribute, transmit, display, reproduce, modify, create derivative works from, transfer, sell or otherwise exploit any of the content, software, products or services on this site for any commercial purpose. By using the Site, you warrant to NICE that you will not use the Site, or any of the content obtained from the Site, for any purpose that is unlawful or prohibited by these Terms. If you violate any of these Terms, your permission to use the Site automatically terminates. Your privilege to use or access the Site may be terminated by NICE immediately and without
Notices will be sent by first-class mail or overnight courier, and will be deemed given 72 hours after mailing or upon confirmed delivery or confirmed receipt. Client’s notices will be addressed to NICE’s Chief Financial Officer. Client may not assign this Agreement without NICE’s prior written consent; any attempted assignment in breach of the foregoing will be void. This Agreement will be governed by the laws of the jurisdiction where the NICE entity that is identified in the Order Schedule has its registered office without regard to conflicts of law provisions. Any claims arising out of or in connection with this Agreement will be subject to the exclusive jurisdiction of the courts in the city where the NICE entity that is identified in the Order Schedule has its registered office; each party irrevocably submits to the personal jurisdiction and venue of, and agrees to service of process issued or authorized by, such courts in any such action or proceeding. NEITHER THE UNITED NATIONS CONVENTION OF CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS NOR THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT WILL APPLY TO THIS AGREEMENT. Except as provided in Sections 8 and 9, the parties’ rights and remedies hereunder are cumulative. Each party acknowledges that the following items contain the other party’s valuable trade secrets and proprietary information, that any breach of this Agreement relating thereto will constitute harm to non-breaching party for which monetary damages would be inadequate, and that injunctive relief is an appropriate remedy: as relates to NICE, the Service, NICE Technology, and NICE’s Confidential Information, and as relates to Client, Client’s Confidential Information. The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Client and NICE as a result of this Agreement or use of the Service. If Client is a branch agency or instrumentality of the United States Government, the following provision applies. The NICE Technology and Documentation are comprised of “commercial computer software” and “commercial computer software documentation” per 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with 48 C.F.R. 227.7202-1 and 22.7202-3. A party’s failure to enforce any provision in this Agreement will not constitute a waiver of such provision unless in writing. No modification hereof will be effective unless in writing and mutually executed. Headings are for reference purposes only and do not define, limit, construe or describe the scope or extent of such section. As used herein, “including” means “including but not limited to.” This Agreement comprises the entire agreement between Client and NICE and supersedes all prior or contemporaneous discussions or agreements between the parties regarding its subject matter. In the event of a conflict between these terms and conditions and the terms of any Order Schedule or SOW, such conflict will be resolved in the following order: (a) any Order Schedule; (b) these terms and conditions; and (c) any SOW. Client purchase orders and similar ordering documents are provided for administrative purposes only. Notwithstanding any contrary terms set forth on such ordering documents, any preprinted terms on such ordering documents will not add to, modify, or have any effect on the terms of this Agreement and are hereby rejected.