END-USER LICENSE AGREEMENT (“EULA”)
IMPORTANT - READ CAREFULLY BEFORE USING THIS SOFTWARE AND/OR CLOUD SERVICES
BY USING THIS SOFTWARE OR CLOUD SERVICES (AS DEFINED BELOW), YOU ACKNOWLEDGE THAT
YOU HAVE READ THIS EULA, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS
TERMS. FOR THE PURPOSE OF THIS EULA, “USING” SHALL INCLUDE, WITHOUT LIMITATION,
OPERATING, COPYING, INSTALLING AND UTILIZING (EACH AS PERMITTED HEREUNDER) THE
SOFTWARE IN OBJECT CODE FORM. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT
USE THE SOFTWARE OR CLOUD SERVICES. NICE WILL NOT LICENSE THE SOFTWARE, CLOUD SERVICES
AND DOCUMENTATION IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST
IMMEDIATELY CEASE ANY USE OF THE SOFTWARE AND CLOUD SERVICES AND, WHERE APPLICABLE,
RETURN THE SOFTWARE TO NICE ("NICE").
1. License, Use and Ownership
(a) You are granted a non-exclusive, non-transferable, non-sublicensable right to use this Software (in object code
form only) or software-as-a-service and hosting services (“Cloud Services”) as applicable, together with NICE’s specifications
and user documentation that accompany this Software or Cloud Services (“Documentation”) for your internal business purposes,
for the total number of licenses or other scope of use that you have purchased from NICE or a NICE authorized reseller and for
the term specified in the order for such Software licenses or Cloud Services. Such use shall be on the terms and subject to the
conditions set forth herein.
(b) No title or ownership of the Cloud Services, Software or Documentation is transferred to you by way of this
EULA. NICE has sole right to and ownership of all intellectual property rights in and to: (i) the Cloud Services, Software and
Documentation, and all modifications, enhancements, improvements, adaptations, translations; (ii) the trademarks, service marks,
and trade names associated with the Software and Cloud Services; and (iii) all other NICE supplied material developed for use
in connection with the Software and Cloud Services generally.
(c) The Software and Cloud Services contains material that is protected by United States and international
copyright law and trade secret law, and by international treaty provisions. All rights not expressly granted to you herein are
reserved to NICE. You shall not remove any proprietary notice of NICE from any copy of the Software. You may make a
reasonable number of copies of the Documentation, provided such reproductions shall include any copyright or proprietary labels,
legends or notices placed upon or included in the Documentation by NICE. With respect to the Software licenses, you may make
one (1) back-up archival copy of the Software, provided you reproduce all confidentiality and proprietary notices on such copy.
(d) You shall not: (i) publish, disclose, copy, rent, lease, modify, loan, distribute, sell, resell, transfer, assign, alter
or create derivative works based on the Cloud Services, Software or Documentation or any part thereof; (ii) reverse engineer,
decompile, translate, adapt, or disassemble the Cloud Services or Software including to: (A) build or create a competitive product
or service, and (B) build or create a product or services using similar ideas, features, functions or graphics of the Cloud Services
or Software, nor shall you attempt to create the source code from the object code for the Software; (iii) permit any third party to
access the Cloud Services, Software or Documentation except as expressly permitted herein; or (iv) create any unauthorized
Internet “links” to the Cloud Services or “frame” or “mirror” any content of the Cloud Services.
(e) NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY NICE TO YOU, INCLUDING ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT,
WHICH ARE SPECIFICALLY EXCLUDED. NICE DOES NOT WARRANT THAT ANY
INFORMATION, COMPUTER PROGRAM, NICE’S EFFORTS OR ANY SOFTWARE OR CLOUD SERVICES PROVIDED
BY NICE, ANY NICE AUTHORIZED RESELLER OR ANY INFRASTRUCTURE PROVIDER WILL FULFILL ANY OF
YOUR PARTICULAR PURPOSES OR NEEDS, NOR DOES NICE WARRANT THAT THE OPERATION OF THE
SOFTWARE OR ACCESS TO THE CLOUD SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
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(f) You warrant to NICE that: (i) you are the owner or authorized licensee of the data provided by you to use the
Cloud Services (“Content”), and you have secured all necessary licenses, consents, authorizations and waivers for the use of the
Content; (ii) the Content and your use of the Cloud Services at all times complies with the terms of this EULA; and (iii) you shall
not use the facilities or capabilities of the Cloud Services to conduct any illegal activity or engage in any other activity which
infringes upon the rights of NICE or any third party. If you breach any of the warranties contained in this Section, NICE may, in
addition to any other rights it may have in law or equity, exercise its right to suspend your access to the Cloud Services.
(g) You hereby grant to NICE a limited, non-exclusive, non-sublicensable, non-transferable license to use, copy,
store and display the Content to provide the Cloud Services to you, and for the purpose of improving and enhancing the overall
user experience of the Cloud Services. You hereby acknowledge and consent that NICE may share the Content with its affiliates.
NICE will not sell, rent, or lease Content to others.
(h) You shall indemnify, defend, and hold harmless NICE from and against any losses costs, damages, expenses,
or liabilities resulting from or arising out of any claim brought by a third party against NICE alleging your violation of applicable
laws in connection with your use of the Content, Cloud Services or Software.
(i) Notwithstanding anything to the contrary contained herein, if you fail in any material respect to comply with
your obligations regarding the use and protection of the Software, Cloud Services or Documentation, and such failure to comply
is not remedied within fourteen (14) days after you receive written notice thereof, the license and rights to use the Software
and/or Cloud Services granted to you hereunder may be suspended or terminated by NICE and/or NICE’s authorized reseller.
(j) Upon the termination of the license and rights to use the Software or Cloud Services pursuant to Section 1(i)
above, you shall: (i) within thirty (30) days after the date of termination of the license and rights to use, and at NICE’s option,
destroy or return to NICE all copies of the Software and Documentation and cease use of the Cloud Services as applicable; and
(ii) upon the destruction or return of all copies of the Software and Documentation, certify to NICE in writing that you have
either destroyed or returned to NICE all copies of the Software and Documentation.
2. Audit Rights. Upon NICE’s written request, you shall furnish NICE with a certification signed by an authorized officer
of your company verifying that the Software and/or Cloud Services are being used pursuant to the terms of this EULA. In
addition, upon prior written notice, NICE may audit your use of the Software and/or Cloud Services to ensure that you are in
compliance with the terms of this EULA. Any such audit shall be conducted during regular business hours at your facilities and
shall not unreasonably interfere with your business activities. You shall provide NICE access to the relevant records and
facilities. If an audit reveals that you have exceeded the scope of use granted for the Software and/or Cloud Services, you will
be invoiced for such over usage (including maintenance fees from the start of the over usage) based upon the maximum over
usage count in any one (1) month during the audit period and based upon NICE’s then-current prices at the time the audit is
completed. You shall promptly pay any invoices for over usage due to any errors or omissions disclosed by such audit. You
may also be charged an additional fee of twenty-five percent (25%) of the applicable over usage fee disclosed by the audit to
compensate for your over use of the Software and/or Cloud Services. If the over usage exceeds five percent (5%) of the scope
of use granted for the Software and/or Cloud Services, as applicable, previously purchased by you, you shall also pay the
reasonable costs of conducting the audit.
3. Confidentiality. The Software, Cloud Services, Documentation and all information disclosed by or on behalf of NICE
in relation to or in connection with this EULA is the confidential and proprietary information of NICE (“Confidential
Information”). You shall at all times secure and protect the Confidential Information, and you shall not disclose the Confidential
Information to any third party without NICE’s prior express written consent.
4. Limitation of Liability.
4.1 SUBJECT TO SECTION 4.2 BELOW, IN NO EVENT WILL NICE BE LIABLE TO YOU 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 OR OTHERWISE, AND WHETHER OR NOT SUCH DAMAGES
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WERE FORESEEN OR UNFORESEEN AND REGARDLESS OF WHETHER NICE 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 UNDER THE ORDER FOR SOFTWARE
LICENSES OR CLOUD SERVICES UNDER WHICH SUCH LIABILITY AROSE.
4.2 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SET OUT IN THIS EULA WILL APPLY TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW. TO THE EXTENT THAT NICE 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. Exports. The Software may be subject to export laws and regulations of the U.S. and other jurisdictions, and you shall
comply with all applicable export and import control laws and regulations. You shall not permit access to, or use of, the Software
by a person or in a country embargoed by, or in violation of, any applicable export laws or regulation.
6. Governing Law. This EULA shall be governed, construed, and interpreted in accordance with the laws of the
jurisdiction specified in the agreement between NICE and the NICE authorized reseller that sub-licensed the Software or provided
access to the Cloud Services to you (“Reseller Agreement”). Any suit, action or proceeding arising out of, having any connection
with, or relating to this EULA (including any non-contractual dispute or claim, and any dispute as to its existence, validity,
interpretation, performance, breach or termination or the consequences of its nullity) shall be determined by the courts or
arbitration center specified in the Reseller Agreement. Notwithstanding the foregoing, NICE may seek interim, interlocutory or
injunctive relief in any court of competent jurisdiction including to protect NICE’s intellectual property rights. Both parties
hereby exclude the application of the Uniform Computer Information Transactions Act (“UCITA”), the United Nations
Convention on Contracts for 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 EULA. 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 EULA.
(a) You must obtain NICE’s prior written consent prior to: (i) moving the Software from one location to another;
or (ii) assigning this EULA or any licenses to and rights to use the Software and/or Cloud Services granted hereunder to any third
party. Any attempted assignment, whether by operation of law, as a result of any change in control, or otherwise without
complying with this Section shall be null and void.
NICE may assign its rights and obligations under this EULA to a NICE affiliate, or to any successor by way of merger,
acquisition, or sale of all or substantially all of NICE’s assets.
(b) No provision of this EULA shall be deemed waived and no breach shall be 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 party, whether express or implied, shall constitute consent to, waiver of, or excuse for any different or
(c) All provisions of this EULA are severable, and the unenforceability or invalidity of any of the provisions of
this EULA shall not affect the validity or enforceability of the remaining provisions of this EULA.
(d) 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 shall not affect the interpretation or construction of this EULA. Whenever the terms “including” or “include”
are used in this EULA 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 shall be interpreted to be illustrative only,
and shall not be interpreted as a limitation on, or an exclusive enumeration of the items within such classification.
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(e) The Software may include third parties’ components, which are licensed to you pursuant to the applicable third
party license agreements (the “Third Party EULA(s)”). BY USING THE SOFTWARE, YOU ACKNOWLEDGE THAT
YOU HAVE READ THE APPLICABLE THIRD PARTY EULAs, UNDERSTAND THEM, AND AGREE TO BE
BOUND BY THEIR TERMS.