Terms and Conditions
These Terms and Conditions govern all Transaction Documents.
1.1 "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.
1.2 "Agreement" means, collectively, these Terms and Conditions and the Transaction Documents.
1.3 "Claim" means a claim brought against a Party by a third party.
1.4 "Cloud Services" means the Software-as-a-Service and Hosting Services, individually and collectively.
1.5 "Confidential Information" means with respect to either Party, any information disclosed by such Party (the "Disclosing Party") to the other Party (the "Receiving Party") in connection with this Agreement, which is either marked as confidential (or words of similar import) or is of a nature or disclosed in such a manner as would put a reasonable person on notice as to the confidential or proprietary nature of the information, including without limitation materials or information related to requests for proposal, quotes, or NICE’s Software and Services. Notwithstanding the foregoing, if the Parties entered into a confidentiality/non-disclosure agreement, the information disclosed under such agreement shall be deemed to be Confidential Information hereunder.
1.6 "Content" means the data provided by Customer to use a Service.
1.7 "Customer" means the Customer entity executing a Transaction Document.
1.8 "Documentation" means the applicable specifications and user documentation accompanying Services or Software.
1.9 "Hosting Services" means the hosting environment, including the infrastructure and operating environment, provided by NICE enabling Customer to access Software that will not be delivered via SaaS.
1.10 "Invoicing Policy" means NICE's invoicing policy located at https://www. nice.com/nice-public-safety-terms-and-conditions/invoicing-policy/
1.11 "Losses" means costs, damages, expenses, or liabilities.
1.12 "NICE" means the NICE entity executing a Transaction Document.
1.13 "Order" means an ordering document executed by the Parties and governed by these Terms and Conditions, which details the Services or Software being purchased by Customer. An Order may also be referred to as a “Schedule.”
1.14 "Party" means either NICE or Customer, individually as the context indicates; and “Parties” means NICE and Customer, collectively.
1.15 "Professional Service(s)" means consulting, installation, implementation, and training services to be provided by NICE pursuant to Transaction Documents.
1.16 "Resulting Information" means data created by, or resulting from, the use of the Services, including analyses, statistics, reports, and aggregations, all of which shall be considered NICE Confidential Information. For the avoidance of doubt, the term Resulting Information does not include personally identifiable information, such that there is no reasonable basis on which any individual, or Customer itself, could be identified by the Resulting Information.
1.17 "Service(s)" means the Cloud Services, Professional Services, or other services to be provided by NICE pursuant to an Order or SOW.
1.18 "Software" means software provided to Customer pursuant to an Order. All references in these Terms and Conditions to purchases of Software are intended by the Parties to mean purchases of licenses to Software.
1.19 "Software-as-a-Service" or "SaaS" means a subscription-based service consisting of the ability to use, and receive support in connection with, the Software in the hosting environment as described in an Order.
1.20 "Statement of Work" or "SOW" means a document executed by the Parties pursuant to these Terms and Conditions describing Professional Services to be provided by NICE. If the Parties agree, an Order may be used in lieu of a Statement of Work.
1.21 "Subscription Term" means the term described in the applicable Order.
1.22 "Transaction Document(s)” " means, collectively, Orders, Schedules, Statements of Work and Customer purchase orders issued in accordance with this Section. Customer purchase orders, if any, shall be governed by these Terms and Conditions. Other than pricing and quantities for Software or Services included in a valid NICE quotation, any terms included in a Customer purchase order are for Customer’s administrative purposes only and will not add to, modify, or have any effect on the terms of the Agreement.
2. Invoicing, Payment Terms, and Taxes.
2.1 Invoices shall be issued in accordance with the Invoicing Policy. Customer will pay all fees and expenses to NICE in the currency stated in the invoice. Customer shall reimburse NICE for such expenses preapproved expenses associated with Professional Services (e.g., travel expenses) in accordance with NICE’s travel and expense policy and as further described in an Order or SOW, and such expenses shall be invoiced monthly in arrears. Payment in full for all invoices is due within thirty (30) days following Customer’s receipt of NICE’s invoice. With respect to any amount due to NICE which is not paid within thirty (30) days following the date of Customer’s receipt of NICE’s invoice, NICE may apply interest 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 of Software or performance of Services until any amounts that are outstanding and past due are paid in full by Customer. In limited circumstances, NICE may, in its sole discretion, accept a Customer purchase order for certain Services or Software. Customer purchase orders, if any, are provided for Customer’s administrative purposes only, and any preprinted terms on Customer purchase orders will not add to, modify, or have any effect on the terms of this Agreement.
2.2 Customer shall, 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 shall reimburse NICE within thirty (30) days of receipt of an invoice from NICE for such amount. If, at any time, Customer claims that its purchase of Software or Services hereunder is exempt from any taxes, it shall 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.
3.1 NICE Warranties for Cloud Services. During the Subscription Term, NICE warrants to Customer that: (a) NICE is the owner or authorized distributor of, and has the right to supply, the Cloud Services and Documentation; and (b) the Cloud Services do not contain any virus, Trojan horse, or other similar code knowingly introduced by NICE. Customer’s sole and exclusive remedies and NICE’s sole obligations for NICE’s breach of the warranty in this Section are as follows: (i) for a breach of the warranty in Section 3.1(a), the indemnity in Section 6 of these Terms and Conditions; and (ii) for a breach of the warranty in Section 3.1(b), the prompt removal by NICE of any such virus or disabling code at NICE’s sole cost and expense.
3.2 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 prevailing. Customer’s sole and exclusive remedy and NICE’s sole obligation for NICE’s breach of the warranty in this Section is NICE’s reperformance of the non-conforming Professional Services, provided that Customer notifies NICE of a non-conformity in this Section during the thirty (30) day period following NICE’s completion of the applicable Professional Services.
3.3 NICE Warranty for On-Premise 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 breach of the warranty in this Section during the Warranty Period shall 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.
3.4 NICE’s Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED IN A TRANSACTION DOCUMENT, (a) NO WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY NICE TO CUSTOMER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, WHICH ARE SPECIFICALLY EXCLUDED; AND (b) NICE DOES NOT WARRANT THAT ANY INFORMATION, COMPUTER PROGRAM, NICE’S EFFORTS OR ANY SOFTWARE OR SERVICES PROVIDED BY NICE OR ANY INFRASTRUCTURE PROVIDER WILL FULFILL ANY OF CUSTOMER’S PARTICULAR PURPOSES OR NEEDS, NOR DOES NICE WARRANT THAT THE OPERATION OF THE SOFTWARE OR ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
3.5 Customer Warranties. Customer warrants to NICE 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 Cloud Services at all times complies with the terms of the Agreement and Orders as applicable; and (c) Customer 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 Customer breaches 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 Customer’s access to the Cloud Services.
4. License and Ownership.
4.1 Any specific use rights granted by NICE to Customer for Services or Software will be documented in an Order or SOW; provided that NICE will grant to Customer a non-exclusive, non-transferable, non-sublicensable, limited right to use the Services, Software and Documentation for Customer’s internal business purposes, or as may otherwise be set forth in the applicable Order or SOW.
4.2 No title or ownership of the Services or Software shall be transferred to Customer 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, translations (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.
4.3 The Services and Software contain 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 Customer herein are reserved to NICE. Customer shall not remove any proprietary notice of NICE from any copy of the Software. Customer 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.
4.4 Customer has sole ownership of the Content, including all intellectual property rights related thereto. NICE is not responsible for validating the Content for accuracy, correctness or usability. Customer grants to NICE a limited, non-exclusive, non-sublicensable, non-transferable license to use, copy, store and display the Content to provide the Services to Customer, and for the purpose of improving and enhancing the overall user experience of the Services. Customer acknowledges and consents that NICE may share the Content with its Affiliates. NICE will not sell, rent, or lease Content to others.
4.5 Customer shall not: (a) publish, disclose, copy, rent, lease, modify, loan, distribute, sell, resell, transfer, assign, alter or create derivative works based on the Services or Software or any part thereof; (b) reverse engineer, decompile, translate, adapt, or disassemble the Services or Software including to: (i) build or create a competitive product or service, and (ii) build or create a product or services using similar ideas, features, functions or graphics of the Services or Software, nor shall Customer attempt to create the source code from the object code for the Software; ; or (c) permit any third party to access the Services or Software except as expressly permitted herein or under an Order or SOW; or (d) create any unauthorized Internet “links” to the Cloud Services or “frame” or “mirror” any content of the Cloud Services.
4.6 Customer is solely responsible for monitoring its use of the Services or Software for possible unlawful or fraudulent usage, and shall notify NICE immediately if it becomes aware or has reason to believe that the Services or Software are being fraudulently used. Customer acknowledges and agrees that its failure to notify NICE may result in the suspension of Customer’s right to use and access the Services or Software.
4.7 For Customers located in EMEA only: If NICE processes any personal data on the Customer’s behalf when performing its obligations under this 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 this 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.
5. Confidential Information
5.1 The Receiving Party shall keep the Disclosing Party’s Confidential Information confidential and secure and shall use at least the same standard of care to protect the Disclosing Party’s Confidential Information as the Receiving Party employs for the protection of its own proprietary information of a similar nature, but in no event less than a reasonable standard of care. The Receiving Party will not disclose the Disclosing Party’s Confidential Information to any third party and shall not use or reproduce in any form the Disclosing Party’s Confidential Information, except as required to exercise its rights and discharge its responsibilities set forth in this Agreement. The Receiving Party shall promptly notify the Disclosing Party in writing of any actual or suspected loss or unauthorized use, disclosure, or access of the Disclosing Party’s Confidential Information of which it becomes aware, and take all steps necessary to limit, stop, or otherwise prevent such loss or unauthorized use, disclosure, or access.
5.2 The term “Confidential Information” does not include any information as to which the Receiving Party is able to demonstrate: (a) is, or after the date of disclosure under this Agreement becomes, generally available to the public other than as a result of any actions or omissions of the Receiving Party; (b) was already known by the Receiving Party prior to the time of disclosure under this Agreement; (c) was disclosed to the Receiving Party on a non-confidential basis by a third party that did not owe an obligation of confidentiality to the Disclosing Party; or (d) is developed by the Receiving Party, independently without use of or reference to the Disclosing Party’s Confidential Information.
5.3 The Receiving Party will restrict the possession, knowledge, and use of the Disclosing Party’s Confidential Information to: (a) its and its Affiliates’ officers, directors, employees, consultants, and subcontractors who have a need to know such Confidential Information for purposes directly related to the exercise of its rights and discharge of its responsibilities as set forth in this Agreement; and (b) external auditors and legal advisors (collectively, "Representatives"). The Receiving Party’s disclosure of the Disclosing Party’s Confidential Information to its Representatives shall not require the prior written consent of the Disclosing Party, however, prior to any such disclosures, the Receiving Party will inform the Representatives of the confidential nature of the Disclosing Party’s Confidential Information and the non-disclosure requirements and limitations on use set forth herein. The Receiving Party shall take reasonable actions, legal or otherwise, necessary to cause its Representatives to comply with the provisions of this Section 5 and to prevent any unauthorized disclosure of the Disclosing Party’s Confidential Information by any of them. The Receiving Party shall be responsible for the acts and omissions of its Representatives with respect to the Disclosing Party’s Confidential Information.
5.4 Notwithstanding anything to the contrary contained herein, the Receiving Party may disclose Confidential Information of the Disclosing Party pursuant to an order made pursuant to applicable law, regulation 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 order 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 required by the court, tribunal, governmental agency or other authority, subject to any protective order or confidential treatment obtained by the Disclosing Party.
5.5 Each Party acknowledges that the unauthorized disclosure or use of the Disclosing Party’s Confidential Information by the Receiving Party will irreparably damage the Disclosing Party in such a way that adequate compensation could not be obtained from monetary damages alone in an action at law. Accordingly, the actual or threatened unauthorized disclosure or use of any Confidential Information shall give the Disclosing Party the right to seek injunctive relief restraining such unauthorized disclosure or use, without the necessity of proving actual damages, in addition to any other remedy otherwise available to the Disclosing Party.
5.6 Upon the written request of the Disclosing Party, the Receiving Party shall: (a) promptly return to the Disclosing Party such of its Confidential Information (and all copies thereof) as the Disclosing Party may request, 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 such Confidential Information.
6.1 NICE Indemnification of Customer. NICE shall indemnify, defend, and hold harmless Customer from and against any Losses resulting from or arising out of a Claim against Customer to the extent that such Claim alleges the infringement of such third party’s U.S. patent or copyright by the Services or Software. The foregoing indemnity shall not apply if the infringement arises out of: (a) specifications or designs furnished by Customer and implemented by NICE at Customer’s request; (b) the Services or Software being modified by, combined with, added to, interconnected with or used with any equipment, apparatus, device, data, software or service not supplied or approved by NICE in writing; (c) the modification to Services or Software by any person or entity other than NICE; or (d) use of Services or Software other than in accordance with its Documentation.
6.2 If a Claim for which Customer is entitled to be indemnified under Section 6.1 above has occurred, or in NICE’s opinion is likely to occur, NICE shall, at NICE’s expense, do one of the following: (a) procure for Customer the right to continue using the affected Services or Software; (b) replace with non-infringing alternates or modify the relevant Services or Software so that it becomes non-infringing but its functionality after modification is substantially equivalent; (c) accept the return of the affected Software, and refund to Customer the fees for the affected Software amortized by an equal annual amount over a three (3) year period beginning from the date of shipment of the affected Software; or (d) cease providing the Services and refund any prepaid fees applicable to the period after the Services has ceased. The collective obligations of NICE pursuant to Section 6.1 and this Section 6.2 state the sole and exclusive liability of NICE, and Customer’s sole and exclusive remedy, with respect to intellectual property infringement or misappropriation.
6.3 Customer Indemnification of NICE. Customer shall indemnify, defend, and hold harmless NICE from and against any Losses resulting from or arising out of any Claim brought against NICE alleging Customer’s violation of applicable laws in connection with Customer’s use of the Content, Services or Software.
6.4 Indemnification Procedure. Promptly after a Party obtains knowledge of the existence or commencement of a Claim for which it is entitled to be indemnified under Section 6.1 above (the “Indemnified Party”), the Indemnified Party will notify the other Party (the “Indemnifying Party”) of such Claim in writing, provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party except to the extent that the rights of the Indemnifying Party are actually prejudiced or liability increased thereby. The Indemnifying Party will have exclusive control of the defense and settlement of such Claim; provided, however, that the Indemnified Party may join in the defense and settlement of such Claim and employ counsel at its own expense, and will reasonably cooperate with the Indemnifying Party in the defense and settlement of such Claim. 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.
7. Limitation of Liability
7.1 SUBJECT TO SECTION 7.2 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR: (a) ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING 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, SUSTAINED OR INCURRED REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING NEGLIGENCE, STRICT LIABILITY, INDEMNITY (EXCEPT AS EXPRESSLY PROVIDED IN THE 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 UNDER THE TRANSACTION DOCUMENT UNDER WHICH SUCH LIABILITY AROSE.
7.2 The limitations in Section 7.1 above shall not apply to: (a) damages occasioned by the breach by either Party, including by their Representatives, of its obligations of confidentiality under Section 5 above; (b) either Party’s indemnification obligations under Section 6 above; or (b) matters that cannot be excluded or limited by applicable law.
8.1 Subject to Section 8.4 below, these Terms and Conditions shall apply to Transaction Documents until the expiration or termination of such Transaction Documents in accordance with this Section 8. The termination of a Transaction Document pursuant to this Section 8 will not operate to terminate any other Transaction Documents.
8.2 Either Party may terminate a Transaction Document for cause, upon written notice to the other Party setting forth the effective date of termination, if the other Party fails to cure a material breach of such Transaction Document , within thirty (30) days after receiving such notice.
8.3 Transaction Documents will terminate, effective upon delivery of written notice by NICE to the Customer: (a) upon the institution of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of debts of the Customer; (b) upon the making of an assignment for the benefit of creditors by the Customer; or (c) upon the dissolution of the Customer.
8.4 Any provision of this Agreement that contemplates performance or observance subsequent to the termination of such Transaction Document and any other provision that by its nature may reasonably be presumed to survive any termination of a Transaction Document shall survive its termination.
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(a) through 9(c) may also 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 firstname.lastname@example.org.
10. General Provisions
10.1 Neither Party shall have the right to assign this Agreement, or any of its rights or obligations thereunder, 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.
10.2 NICE has arrangements with certain technology service providers ("Augmented Resource(s)"), which provide NICE with the ability to supplement its employee workforce providing Services to NICE’s customers. Notwithstanding anything to the contrary contained in Section 10.1 above or in the Agreement, Customer acknowledges and agrees that NICE may use a combination of its employees and Augmented Resources to assist NICE with the delivery of certain Services under this Agreement. NICE will remain responsible to Customer for the performance and conduct of such Augmented Resources.
10.3 It is expressly agreed that the Parties are acting hereunder as independent contractors and under no circumstances shall any of the employees of one Party be deemed the employees of the other Party for any purpose. This Agreement shall 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.
10.4 Upon reasonable prior notice to Customer, NICE shall have the right to verify that: (a) Customer is in compliance with the licensing terms of the Agreement; and (b) the quantity of Software licenses in use by Customer is consistent with the quantity of Software licenses purchased by Customer under an Order ("Compliance Verification(s)"). Compliance Verifications shall be conducted using a NICE Software script ("Script"). NICE will provide Customer with the Script to execute on the system(s) where the Software is in use. Unless otherwise agreed by the Parties in writing, Customer agrees to provide NICE with the results report generated by the Script within ten (10) days following Customer’s receipt of the Script. If a Compliance Verification results report reveals that Customer’s use of the Software is in excess of the Software licenses purchased, NICE shall invoice Customer for the excess number of licenses at NICE’s then-current list price for the Software. Customer shall, within ten (10) days after the date of Customer’s receipt of NICE’s invoice, make payment to NICE for such additional Software licenses.
10.5 Each Party agrees that it will not, directly or indirectly, for a period commencing on the effective date of a Transaction Document and ending one (1) year following the expiration of the Term, without the prior written consent of the other Party, solicit or employ any person who, at any time during the Term, were employees of the other Party or its Affiliates who performed duties related to the Services performed hereunder, nor will such Party solicit or encourage any such person to terminate their employment relationship with the other Party or its Affiliate.
10.6 Neither Party shall be deemed to 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 undertaking 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.
10.7 NICE shall have the right to use or incorporate into the Services and Software any suggestions, enhancement requests, recommendations or other feedback provided by Customer.
10.8 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 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 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.
10.9 All provisions of this Agreement are severable, and the unenforceability or invalidity of any of the provisions of this Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement.
10.10 Each Party shall perform its obligations in a manner that complies with all applicable laws and regulations, compliance with which is required of such Party or for which such Party is responsible hereunder.
10.11 The Software may be subject to export laws and regulations of the U.S. and other jurisdictions, and Customer shall comply with all applicable export and import control laws and regulations. Customer 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.
10.12 No provision of this Agreement 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, whether express or implied, shall constitute consent to, waiver of, or excuse for any different or subsequent breach.
10.13 This 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., and NICE Systems Latin America, 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 this 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 this 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 this 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 this 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 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.
10.14 In the event of any conflict or inconsistency between the terms of 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.
10.15 NICE shall have the right to issue a press release regarding its relationship with Customer (the "Press Release"). Customer agrees to contribute a quote from a Customer employee involved with the relationship with NICE to be used in the Press Release. NICE shall 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 shall provide NICE with any proposed changes to the Press Release. Notwithstanding anything to the contrary contained herein, NICE agrees that it will not make, issue, or release any public statement (including the Press Release), announcement, or acknowledgement of the existence of, or reveal the status of, the Agreement or the terms or transactions provided for herein, without first obtaining the written consent of Customer.
10.16 A Transaction Document may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute a single agreement. Additionally, the Parties agree that Transaction Documents and any amendments thereto, may be signed using electronic signatures.
10.17 This Agreement represents the entire agreement and understanding between the Parties with respect to the subject matter hereof, and supersedes any other agreement or understanding, written or oral, that the Parties may have had with respect thereto. No statement or inducement with respect to the subject t matter by either Party or by any agent or representative of either Party, which is not contained in this Agreement, shall be valid or binding between the Parties. No provision of this Agreement may be modified or amended except by a written instrument duly executed by each of the Parties. Any such modifications or amendments shall not require additional consideration to be effective.