NICE: End User License Agreement
END-USER LICENSE AGREEMENT (“EULA”)
IMPORTANT - READ CAREFULLY BEFORE USING THIS SOFTWARE
BY USING THIS SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS EULA, THAT YOU UNDERSTAND IT, AND THAT YOU AGREE TO BE BOUND BY ITS TERMS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF THIS EULA AND THE TERMS OF A SEPARATE WRITTEN AGREEMENT SIGNED BETWEEN NICE AND YOU, THE TERMS OF SUCH SEPARATE AGREEMENT SHALL GOVERN YOUR USE OF THIS SOFTWARE. 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. NICE WILL NOT LICENSE THE SOFTWARE AND DOCUMENTATION TO YOU IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, YOU MUST IMMEDIATELY CEASE ANY USE OF THE SOFTWARE AND, WHERE APPLICABLE, RETURN THE SOFTWARE TO NICE.
1. Software License Terms.
(a) NICE grants to you a non-exclusive, non-transferable license to use this Software (in object code form only), together with the specifications and user documentation that accompany this Software (collectively “Software Documentation”), for the total number of licenses you have purchased from NICE or a NICE-authorized reseller. Such use shall be on the terms and subject to the conditions set forth herein.
(b) No title or ownership of the Software or Software Documentation is transferred to you by way of this EULA. Ownership of the Software, Software Documentation, and all modifications, enhancements, improvements, adaptations, translations and derivative works thereof and any other intellectual property rights therein and thereto shall remain at all times with NICE and its licensors.
(c) The Software and Software Documentation contain material that is protected by United States and international intellectual property laws, including copyright law, trade secret law, and by international treaty provisions. All rights not expressly granted to you herein are reserved to NICE and its licensors. You shall not remove any proprietary notice of NICE and its licensors from the Software or Software Documentation. You may make a reasonable number of copies of the Software Documentation, provided such reproductions shall include any copyright or proprietary labels, legends or notices placed upon or included in the Software Documentation by NICE. 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 publish, disclose, rent, lease, modify, loan, distribute, alter or create derivative works based on the Software, Software Documentation or any part thereof. You shall not reverse engineer, decompile, unbundle, translate, adapt, or disassemble the Software, nor shall you attempt to create the source code from the object code for the Software.
(e) Solely for Software expressly licensed by NICE directly (and not for the avoidance of doubt through a NICE-authorized reseller) on an on-premise, perpetual basis, NICE warrants that, during the period beginning upon the date of shipment or, in the case of Software delivered via NICE’s electronic software delivery system, the date on which the Software becomes available for download, and ending on the date that is ninety (90) days thereafter (“Warranty Period”), the Software will operate substantially in accordance with the applicable Software Documentation. Should the Software fail to comply with the warranty set forth in this Section during the Warranty Period, your sole and exclusive remedy and NICE’s sole obligation with respect to Software shall be, in NICE’s sole discretion, to correct or replace any portion of the Software not in compliance with this Section at no additional charge to you. The warranty provided in this Section does not include damage to Software resulting from a cause other than a defect or malfunction, including: (i) installation, maintenance, servicing or modification of the Software or part thereof by anyone other than NICE or a NICE-authorized technician; or (ii) use of the Software other than in accordance with the Software Documentation.
(f) EXCEPT AS SET FORTH IN SECTION 1(e) ABOVE, NICE MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, NICE DOES NOT WARRANT THAT THE SOFTWARE IS OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED OR MEET OR WILL MEET YOUR REQUIREMENTS. NICE MAKES NO IMPLIED WARRANTY OF MERCHANTABILITY OR QUALITY OR IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE, AND NO IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. ACCORDINGLY, NICE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS. THE SOFTWARE MAY CAUSE YOUR COMPUTER TO AUTOMATICALLY CONNECT TO THE INTERNET. THE SOFTWARE MAY ALSO REQUIRE ACTIVATION OR REGISTRATION.
(g) Notwithstanding anything to the contrary contained herein, If you fail to pay the specified license fees for the Software when due or fail in any other material respect to comply with your obligations regarding the use and protection of the Software, and such failure to pay or to comply is not remedied within ten (10) days after you receive written notice thereof, license rights for the Software granted to you hereunder shall be terminated.
(h) Upon the termination of the license for the Software by NICE pursuant to Section 1(g) above, you shall: (i) within thirty (30) days after the date of termination of the license, and at NICE’s option, destroy or return to NICE all copies of the Software and Software Documentation; and (ii) upon the destruction, or return of all copies of the Software and Software Documentation, certify to NICE in writing that it has either destroyed or returned to NICE all copies of the Software and Software Documentation.
(i) You will permit NICE to audit the use of the Software by you at all reasonable times in order to verify your compliance with this Agreement and for that purpose NICE shall be entitled to enter any of your premises upon reasonable prior notice (and you hereby irrevocably license NICE, its employees and agents to enter any such premises for such purpose). In the event that a Software audit reveals that you are using more licenses of the Software than for which you have paid the specified license fees, you shall, within ten (10) days after the date of such discovery, make payment to NICE for such additional Software licenses.
2. Confidentiality. The Software is the confidential and proprietary information of NICE, and you shall not disclose the Software to any third party without NICE’s prior express written consent.
3. Limitation of Liability.
IN NO EVENT WILL NICE BE LIABLE TO YOU WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THIS EULA FOR: (a) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING WITHOUT LIMITATION, LOSS OF USE, LOSS OF OR DAMAGE TO RECORDS OR DATA AND/OR CORRUPTION OF INFORMATION, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOST REVENUE, PROFITS AND/OR SALES, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION, SUSTAINED OR INCURRED 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 WERE FORESEEN OR UNFORESEEN AND REGARDLESS OF WHETHER YOU 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 PAID BY YOU TO NICE FOR THE SOFTWARE LICENSES. Nothing in this EULA shall limit or exclude our liability for matters that cannot be excluded or limited by applicable law.
4. Exports. You shall not export the Software, Software Documentation, or information about the Software and Software Documentation other than in accordance and compliance with all applicable laws, regulations, orders, or other restrictions.
5. Governing Law. This EULA shall be governed, construed, and interpreted in accordance with the laws of the jurisdiction where the NICE entity that licensed the Software to you is headquartered. Notwithstanding the foregoing, either party may seek interim or temporary injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property rights. 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 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) NICE may transfer its rights and obligations under this EULA to another organization, but this will not affect your rights or our obligations under this EULA.
(b) You may only transfer your rights or your obligations under this EULA to another person if NICE agrees in writing.
(c) If NICE fails to insist that you perform any of your obligations under this EULA, or if NICE does not enforce its rights against you, or if NICE delays in doing so, that will not mean that NICE has waived its rights against you and will not mean that you do not have to comply with those obligations. If NICE does waive a default by you, NICE will only do so in writing, and that will not mean that NICE will automatically waive any later default by you.
(d) Each of the conditions of this EULA operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
(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.