End User Terms
These End User Terms (“Terms”) govern End User’s access to and use of the Services provided by Aspect, a business unit of Alvaria, Inc. (“Company”). These Terms apply to Services acquired by an End User through an Authorized Reseller.
The commercial terms of End User’s purchase of the Services, including pricing, invoicing, payment obligations, taxes, subscription quantities, renewal terms, and other commercial terms, are governed exclusively by the agreement between the End User and the Authorized Reseller.
By accessing, using or purchasing the Services, the End User agrees to be bound by these Terms. If the individual accepting these Terms is acting on behalf of an entity, such individual represents and warrants that they have the authority to bind that entity to these Terms.
1. Definitions
1.1 Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 Application means an application program, including End User Software, with the functionality described in the documentation, including modifications, revisions, upgrades (if included as part of the Subscription Service), updates, national language versions and enhancements, if any. Updates do not include products, features and modules that are separately marketed by Company for an additional fee.
1.3 Authorized Employee or User means either (a) a user authorized to use the Subscription Service concurrently with other users (Employees), limited by a maximum number of concurrent users at any one time (Concurrent Users/Employees); or (b) a specifically identified individual that can be scheduled and is authorized to use the Subscription Service (Named User/Employee). A new Named User/Employee may replace a prior Named User/Employee. Unless otherwise explicitly specified on a Schedule, the Hosted Services and related Documentation may be accessed and used by or on behalf of End User and its Affiliates.
1.4 Authorized Reseller means a third party authorized by Company to market, distribute, resell, or otherwise make the Services available to End Users.
1.5 Confidential Information means any material, data, or information, in any form or media, that is proprietary or confidential to a disclosing party and is marked as confidential, or by its nature or treatment by its owner should reasonably be considered confidential.
1.6 Deliverable means a quantifiable service to be provided with Professional Services and specified in an Order Document, including without limitation application program interfaces, configurations, information, documents, reports, technical and non-technical data, specifications, and other material. Deliverables do not include third-party products or custom development, as applicable.
1.7 Documentation means Company’s or its licensors’ user manuals and other published protocols, standards, and technical specifications for use with the Subscription Service including but not limited to planning guides for deployments of the Subscription Service, as updated from time to time, as long as the later modification does not materially diminish End User’s ability to use and access the Subscription Services. Documentation may also be further defined in specific terms and conditions applicable to service in specific Terms Attachment.
1.8 Effective Service Date or Subscription Start Date as stated in the Order Document, means the contract start date and will apply to all the Subscription Services on the applicable Order Document.
1.9 End User means the individual or legal entity authorized to access and use the Services, pursuant to an Order Document placed through an Authorized Reseller.
1.10 End User Data or Customer Data means Confidential Information, data (whether in an audio, video, image, or text format) and Personal Information that End User (including its customers) transmits to or from the Subscription Service or processes through the Subscription Service.
1.11 End User Software means a software component provided by Company and installed at End User’s premises required for use of the Subscription Service. Not all Subscription Services require the use of End User Software.
1.12 Intellectual Property Rights means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Subscription Service is used or offered.
1.13 Order Document(s) means a standard machine generated quotation, addendum, schedule, or standard statement of work for the purchase of Subscription Services, Premises Licenses, Professional Services or materials that is signed by Authorized Reseller and End User.
1.14 Personal Information means any data, either alone or in combination with other information, by which a natural person can be identified or located, or that can be used to identify or locate a natural person.
1.15 Professional Services means education services, standard installation, integration, configuration, and other time and materials services provided by or on behalf of Company.
1.16 Product means Software.
1.17 Security Breach means (i) any actual unauthorized use of, loss of, access to or disclosure of, End User Data and (ii) any security breach (or substantially similar term) as defined by applicable law.
1.18 Services means the Subscription Service, Professional Services, Products, services and other resources provided or made available by Company, including any applicable support service.
1.19 Software means Company proprietary software applications, embedded third-party software and any copies, translations, derivations, adaptations or modifications thereof, and includes any portion of the foregoing.
1.20 Subscription means a non-exclusive, non-transferable, non-sublicensable right to access and use the Subscription Service for End User’s internal business operations in the Territory, and when applicable, for the number of Users specified in an Order Document.
1.21 Subscription Service means an Application or other functionality, if any, made available as a cloud or hosted service by Subscription as specified in an Order Document. Subscription Service includes Services, Systems, Hardware and Software (each as defined in an applicable Terms Attachment), Deliverables and Documentation.
1.22 Subscription Term or License Period means a period during which Company will provide the Subscription Service or Subscription Software License (applicable for on-premises or End User controlled deployment location).
1.23 Service Terms Attachment or Service Description sets forth specific terms applicable to a Service.
1.24 Territory means worldwide except for any countries sanctioned, embargoed, or prohibited to do business with under U.S. or other applicable laws.
2. Subscription Service
2.1 Subscription. Company or its Affiliates will provide the Subscription Service(s) to End User as specified in the Order Document during the Subscription Term. Current Subscriptions may not include new features or functionality added to a Subscription Service after the beginning of the Subscription Term, except to the extent that such new features or functionality are made available by default to all customers of Company with respect to the ordered Subscription Service at no additional cost or are introduced in new releases of the Subscription Services, in which case the new features and functionality shall be added to the Subscription Service.
2.2 Subscription Term. Subscription Service is available for the period specified in the Order Document.
2.3 Modifications. Company may modify the Subscription Service, provided the modification does not materially negatively affect the Subscription Service (e.g., to maintain or improve functionality or security). Company will notify End User of the modification in accordance with the Support Policies.
2.4 End of Service Availability. Company may notify End User of the end-of-life (end of availability) of a given Subscription Service by giving no less than twelve (12) months prior written notice before such end of Service availability. Notwithstanding the process for other notices set forth under “General”, below, Company may provide such notification by email to End User’s then-current business or technical contact, and/or by publication on the applicable interface(s) through which End User’s administrator interacts with the Subscription Service.
3. End User Use, Responsibilities, and Restrictions
3.1 End User Use and Responsibilities. End User is responsible for all activity occurring under End User accounts, the way it and its Users use the Subscription Service, and for the results obtained and conclusions drawn from the use of the Subscription Service. End User will:
a. select, purchase, configure, operate, and maintain End User’s equipment, hardware, websites, network and Internet, data and telephone connections necessary for use and support of the Subscription Service;
b. install and use upgrades to End User Software and Applications when available;
c. use End User Software only in combination with the Subscription Services and solely for purposes of using the Subscription Services in accordance with the Documentation;
d. use Subscription Services only in accordance with the Terms, Documentation, Company’s Acceptable Use Policy (available at http://www.aspect.com/policies/acceptable-use-policy) and applicable laws and government regulations, including, but not limited to, those related to data privacy, consent, telecommunications, transmission of Personal Information or technical data, and spam; and
e. obtain and maintain legal permission or consent from those persons or entities End User contacts or to whom End User provides services using the Subscription Service and contact only those persons and entities who the End User is legally permitted to contact and only in the manner legally permitted.
3.2 Restrictions. END USER WILL NOT AND WILL NOT PERMIT OTHERS TO:
a. make the Subscription Service accessible to third parties other than End User’s subcontractors or Affiliates (in accordance with Section 6.2), or sell, resell, license, sublicense, distribute, rent or lease a Subscription Service;
b. use any method other than the one approved by Company for connection to the Subscription Services;
c. use a Subscription Service to (i) send spam or otherwise duplicative or unsolicited messages, (ii) store or transmit infringing, offensive, abusive, libelous, or otherwise unlawful or tortious material, (iii) store or transmit material in violation of third-party privacy rights, or (iv) engage in fraudulent, deceptive, misleading or abusive activity;
d. use a Subscription Service to store or transmit code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses (Malicious Code);
e. interfere with or disrupt the integrity or performance of a Subscription Service or Company or its carrier’s networks, any other Company customer’s use of a Subscription Service, or third-party Applications contained therein;
f. attempt to gain or allow unauthorized access to a Subscription Service or its related systems or networks, or permit direct or indirect access to or use of a Subscription Service in a way that circumvents a contractual usage limit;
g. infringe or misappropriate Company’s or its licensors’ Intellectual Property Rights;
h. create derivative works or copy a Subscription Service or any part, feature, function or user interface thereof; access a Subscription Service to build a competitive product or service; or reverse engineer, disassemble, or decompile a Subscription Service or component, or attempt to discover or disclose the source code, underlying ideas or algorithms of the Subscription Service or any component; or
i. remove, alter, or obscure a Subscription Service’s confidentiality or proprietary rights notices (including copyright and trademark notices).
4. End User Data
4.1 Ownership. End User controls and owns all rights, title, and interest in and to End User Data and at all times remains the data controller under these Terms and applicable data protection laws. Company obtains no rights to End User Data except as set forth in these Terms. End User warrants that it has complied with all relevant laws in collecting, using and disclosing End User Data.
4.2 End User Data Responsibilities. End User is responsible for: (a) the accuracy, quality, reliability, legality and means by which End User acquired the End User Data; (b) obtaining the right and consent to use the End User Data and its decisions concerning the processing and use of the End User Data; (c) complying with applicable statutory data privacy and telecommunication laws including, but not limited to data retention periods; and (d) uploading, sharing, withdrawal, management and deletion (unless an automatic deletion period is specified for the Subscription Service) of End User Data.
4.3 License. End User grants Company, its licensors and subcontractors a non-exclusive, limited, non-transferable and non-sublicensable license to access, copy, store, process, transmit and display End User Data for the sole purposes of (a) setting up, providing, monitoring and improving the Subscription Services, (b) preventing or addressing service or technical problems, and responding to End User’s requests in connection with support matters, (c) communicating to and with End User and its Users regarding the Subscription Services, (d) enforcing these Terms, and (e) complying with applicable laws.
4.4 Disclosure. Company will not disclose End User Data to an unaffiliated third-party. However, Company may disclose End User Data to the extent necessary to fulfill its obligations under these Terms or as permitted or required by applicable law.
5. Security
5.1 Safeguards. Company will maintain commercially reasonable and appropriate technical and organizational measures designed to secure End User Data against unauthorized and unlawful loss, access or disclosure. Company will maintain physical, electronic and procedural safeguards in compliance with applicable privacy laws, such as the EU General Data Protection Regulation, California Consumer Privacy Act, Gramm-Leach-Bliley Act to protect End User Data, including, but not limited to: (a) the maintenance of appropriate safeguards to restrict access to End User Data to the employees, agents, licensors or service providers of Company who need that information to carry out Company’s obligations under these Terms; (b) procedures and practices for the safe transmission or transportation of the End User Data; (c) the maintenance of appropriate safeguards to prevent the unauthorized access of the End User Data; and (d) procedures and practices for the safe disposal of End User Data. Company provides production environment Subscription Services to its customers uniformly, and all appropriate and then current technical and organizational measures apply to Company’s entire customer base subscribed to the same Subscription Service. End User understands and agrees that the technical and organizational measures are subject to technical progress, development, and improvements for the protection of Personal Information and Company reserves the right to update the technical and organizational security measures provided the technical and organizational security measures will not materially decrease.
5.2 Notification. If Company discovers that End User Data has been subject to a Security Breach, Company will promptly notify End User as allowed by applicable law.
5.3 End User Responsibilities. End User is responsible for maintaining the security of its Subscription Service login credentials, User passwords and access to the Subscription Service from any network that it uses to access the Subscription Services. Log-in credentials are for End User’s internal use only and End User may not sell, transfer, or sublicense them to any other entity or person. End User will: (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Subscription Service; and (b) contact Company promptly if End User believes there is unauthorized access or use of End User’s Subscription Service account, if End User’s Subscription Service account information is lost or stolen, or if End User is aware of another breach of security related to the Subscription Service.
5.4 PCI Compliance. Not all Subscription Services are Payment Card Industry Data Security Standards (PCI) compliant solutions. If the Order Document identifies a PCI compliant solution for a Subscription Service, Company will provide, beginning on the Effective Service Date, a solution that is compliant with PCI. During the Subscription Term, End User agrees to comply with the Acceptable Use Policy provisions relating to PCI. If End User violates the Acceptable Use Policy, Company will notify End User in writing and End User will have 72 hours to remediate the issue. If remediation is not completed in that time, Company may suspend the provision of the Subscription Service until the issue is remediated.
5.5 Audits. Upon End User’s written request, Company will provide a copy of Company’s then most recent third-party security audits or certifications for its production systems, as applicable, or any summaries that Company generally makes available to its customers at the time of the request.
6. Professional Services
6.1 Ordering. End User may purchase Professional Services from an Authorized Reseller pursuant to the Order Document and subject to these Terms. The Order Document will describe the Professional Services and may include, but not be limited to, any of the following: project scope, resources, party responsibilities, Deliverables, fees, expenses, and payment schedule.
6.2 Cooperation. End User grants Company a right to use End User’s systems, proprietary and third-party products, Confidential Information, End User Data and information as necessary to perform the Professional Services.
6.3 Personnel. Company will determine which of its personnel or subcontractors will perform the Professional Services. If End User is dissatisfied with the Professional Services, the parties will in good faith determine a resolution. If the resolution involves reassigning personnel, Company will do so as soon as practical and commercially reasonable, according to local law. End User agrees that reassignment of personnel may delay the Professional Services. Professional Services may be provided by Company or its subcontractor. Company shall remain responsible for the obligations, services, and functions performed by any of its Affiliates or subcontractors to the same extent as if such obligations, services, and functions were performed directly by Company.
6.4 Education Services. Education services are available for End User purchase under Company’s current standard policies and procedures. Company or its licensors hold and retain the Intellectual Property Rights to all course materials.
7. Termination
7.1 Services Termination. Company may terminate the End User’s right to access and use all or any portion of the Services for cause upon thirty (30) days’ written notice of a material breach, if the breach remains uncured at the expiration of the thirty (30)-day period. Company may terminate these Terms or the right to access and use the Services: (a) immediately if the End User ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days; and (b) with at least thirty (30) days prior notice if a change in law comes into effect which renders Company’s provision of the Services illegal, impossible or would materially adversely affect Company’s ability to provide the Services. Notwithstanding the foregoing, Company may immediately terminate the End User’s right to access and use the Services if the End User’s subscription obtained through an Authorized Reseller expires or is terminated, including as a result of the End User’s failure to satisfy its payment obligations to the Authorized Reseller pursuant to the terms of their agreement.
7.2 Temporary Suspension. Company may suspend End User’s right to access or use all or part of the Subscription Service without notice if End User or its User’s use of the Subscription Service is in violation of Section 3.2 (c), (d), (e), (f) or (g). Company will promptly notify End User of the cause of the suspension, and the suspension will only remain in place for the minimum amount of time necessary for End User to cure the breach which led to the suspension. If Company suspends End User’s right to access or use any portion or all of the Subscription Service in accordance with this Section: (a) End User remains responsible for all fees and charges owed to Authorized Reseller; and (b) Company will not be bound by any service level agreement during the suspension period. Company will not delete any End User Data on the Subscription Service as a result of the suspension, except as specified elsewhere in these Terms. Company will have no liability for any damage, liabilities, losses or any other consequence that End User may incur as a result of a suspension.
7.3 Effect of Termination.
a. In no event will termination relieve Company or End User of its obligation or liabilities that accrued up to and through the effective date of termination.
b. Upon termination of these Terms or the Services: (i) End User’s Services and access to it will immediately cease and its license to use the Services and Deliverables will immediately terminate; (ii) Company has no obligation to maintain any End User Data except as otherwise specified herein; and (iii) End User must, in accordance with Company’s directions, return or destroy any Company Confidential Information, End User Software, Deliverables and Documentation and provide written certification of destruction.
7.4 Return of End User Data after Termination. Company will not delete any of the End User Data in an Application or Subscription Service as a result of termination of that Application or Subscription Service during the thirty (30) days following termination. Within ten (10) days following the termination date, End User must provide Company with a written request for download or transfer of the End User Data. Requests that Company provide a download or transfer of the End User Data may result in additional fees and Company will not warrant or guarantee data integrity or readability in the external system. Company will not download or transfer any End User Data to End User unless End User has paid Company in full for all amounts due under these Terms. Company has no obligation to maintain or provide any of the End User Data after the thirty (30)-day period and will thereafter, unless legally prohibited, delete all of the End User Data stored in that Application or Subscription Service.
7.5 Survival. 7.3 (Effect of Termination), 7.4 (Return of End User Data after Termination), 8 (Intellectual Property Rights), 9 (Confidentiality), 11 (Indemnification), 12 (Limitation of Liability) and 13 (General Provisions) will survive any termination or expiration of these Terms.
8. Intellectual Property Rights
8.1 Reservation of Rights. Except as expressly set forth in these Terms, these Terms do not grant (a) Company any Intellectual Property Rights in End User Data or (b) End User any Intellectual Property Rights in the Subscription Services or Company trademarks. Company will own all rights in any copy, translation, modification, adaptation or derivation of the Subscription Services, including any improvement or development thereof.
8.2 Suggestions. Company may, at its discretion and for any purpose, use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions End User or its Users provide to Company without any obligation to End User.
9. Confidentiality
9.1 Confidential Information. Confidential Information includes, without limitation: (a) nonpublic information relating to the disclosing party's technology, prices, Intellectual Property Rights, specifications, manuals, business plans, product roadmaps, results of benchmark tests, promotional and marketing activities, finances and other business affairs; (b) End User Data and third-party information that the disclosing party is obligated to keep confidential; (c) the discussions, negotiations and proposals between the parties leading to these Terms; and (d) the Terms. Confidential Information does not include information that: (i) is or becomes publicly available without breach of the Terms; (ii) was known to the receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (iii) is independently developed by receiving party after disclosure without breach of the Terms; or (iv) is obtained by the receiving party from a third party without any confidentiality obligation. Applications are not deemed to be placed in the public domain by Company.
9.2 Use. Receiving party will use disclosing party's Confidential Information solely to perform its obligations under these Terms and will take all reasonable steps to safeguard disclosing party's Confidential Information, including no less than the steps taken to protect its own Confidential Information. Receiving party must not disclose disclosing party's Confidential Information except to its employees, Affiliates and contractors who (a) have a need-to-know Confidential Information in connection with these Terms and (b) are bound by written confidentiality obligations no less restrictive than these Terms. Receiving party must promptly notify disclosing party in writing of unauthorized use or disclosure of Confidential Information and take all reasonable action to recover Confidential Information and prevent further unauthorized use or disclosure, including action for seizure and injunctive relief. If receiving party fails to do so in a timely manner, disclosing party may take any reasonable steps at receiving party’s expense, and receiving party must reasonably cooperate.
9.3 Disclosure. Receiving Party may disclose Confidential Information as required to comply with binding orders of governmental entities that have jurisdiction over it or as otherwise required by law, provided that the receiving party (a) gives the disclosing party reasonable written notice to allow the disclosing party to seek a protective order or other appropriate remedy (except to the extent the receiving party's compliance with the foregoing would cause it to violate a court order or other legal requirement), (b) discloses only such information as is required by the governmental entity or otherwise required by law, and (c) uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information disclosed.
10. Representations, Warranties and Disclaimers
10.1 Representations. Each party represents that it has validly entered into these Terms and has the legal power to do so.
10.2 Company’s General Warranty. Company represents and warrants that: (a) it owns or otherwise has sufficient rights to the Subscription Services and technology to grant the rights in these Terms; and (b) the Subscription Services will materially conform to the Documentation during the Subscription Term. In the event the Subscription Service does not conform to the Documentation, Company will use commercially reasonable efforts to repair the nonconforming Application at no additional charge or if not practical and solely at Company’s option, terminate the nonconforming Application.
10.3 Professional Service Warranty. Company warrants that Professional Services will be performed in a good and workmanlike manner in accordance with industry standards. End User must provide a written warranty claim to Company within thirty (30) days after the date of the invoice for the Professional Services or as otherwise stated in the statement of work. Company will re-perform Professional Services that do not comply with the warranty at no additional charge. SECTION 10.3 DESCRIBES COMPANY’S SOLE LABILITY AND END USER’S SOLE REMEDY FOR A PROFESSIONAL SERVICES WARRANTY CLAIM.
10.4 Critical Use Disclaimer. The Subscription Services are not designed for any critical applications or use, including but not limited to use with or in support of: life support systems; emergency medical, fire or police applications; emergency 911 calls; aircraft or mass transit control; or any other systems or applications where Subscription Service failure could lead to bodily injury, loss of life or catastrophic property damage. ACCORDINGLY, COMPANY, ITS AFFILIATES AND LICENSORS DISCLAIM ALL LIABILITY ARISING OUT OF THE USE OF THE SUBSCRIPTION SERVICES IN ANY CRITICAL APPLICATIONS. END USER’S USE OF THE SUBSCRIPTION SERVICE FOR OR IN SUPPORT OF A CRITICAL APPLICATION IS SOLELY AT END USER’S OWN RISK.
10.5 General Disclaimer. The warranties in Section 10 do not cover problems caused by (a) abuse, misuse, alteration, neglect, accident, unauthorized repair or installation, or acts or omissions of any party other than Company; (b) End User’s hardware, software, networks, or systems; or (c) End User not using the Subscription Service according to the Documentation.
EXCEPT AS OTHERWISE EXPLICITLY PROVIDED IN THESE TERMS, THE SUBSCRIPTION SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE." COMPANY, ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, ORAL OR WRITTEN, FOR THE PROFESSIONAL SERVICES, SUBSCRIPTION SERVICE AND ITS USE, SUFFICIENCY, OR ACCURACY INCLUDING WITHOUT LIMITATION, TELEPHONE NUMBER/TIME ZONE/POSTAL CODE DATA PROVIDED WITH SUBSCRIPTION SERVICE; ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; AND WARRANTY ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE PROFESSIONAL SERVICES, SUBSCRIPTION SERVICE OR RESULTS OF THE USE THEREOF WILL MEET END USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITH END USER’S EQUIPMENT, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR-FREE. SUBSCRIPTION SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, TELEPHONIC AND ELECTRONIC COMMUNICATIONS AND COMPANY IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE AS A RESULT.
10.6 Exclusive Remedy. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, THE END USER’S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE WARRANTY SET FORTH IN THIS SECTION 10 SHALL BE THE REPAIR OR REPLACEMENT OF THE NONCONFORMING SUBSCRIPTION SERVICE OR, IF COMPANY DETERMINES SUCH REMEDY IS NOT COMMERCIALLY REASONABLE, TERMINATION OF THE END USER’S RIGHT TO USE THE AFFECTED SUBSCRIPTION SERVICE.
11. Indemnification
11.1 Indemnification by Company. Subject to Section 11.5, Company will indemnify and defend End User, its employees, officers, directors, shareholders, parents and subsidiaries against all losses, damages, liabilities, judgments, awards, penalties, interest, fines, costs and fees or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”) resulting from a claim or legal action brought by a third-party that is unaffiliated with End User alleging: (a) that the Subscription Service as provided by Company to End User directly infringes a U.S. patent, copyright or trademark; or (b) bodily injury, death, or damage to real or tangible property to the extent caused by Company, its employees, subcontractors or agents.
11.2 Indemnification by End User. Subject to Section 11.5, End User will indemnify and defend Company, its employees, officers, directors, shareholders, parents, subsidiaries and licensors against Losses resulting from an unaffiliated third-party claim or legal action alleging: (a) that End User Data or End User’s or its User’s use of the Subscription Service(s) in breach of this these Terms infringes or misappropriates a U.S. patent, copyright or trademark; (b) violation of Section 3 (End User Use, Responsibilities and Restrictions); or (c) bodily injury, death, or damage to real or tangible property to the extent caused by End User, its employees, subcontractors or agents.
11.3 Exceptions. Company has no obligation or liability under Section 11.1(a) arising from: (a) End User’s breach of these Terms or use of the Subscription Service in a manner contrary to the Documentation; (b) unauthorized modification of the Subscription Service made by anyone other than Company, or modification made by Company for non-standard features or functionality for End User or according to End User’s direction if the infringement would not have occurred without End User’s requested modifications; (c) use of any Subscription Service in combination with hardware, software, method or process not provided or approved by Company if infringement would not occur without the combination, unless the Documentation expressly authorizes a combination with such hardware, software, method or process; (d) any content, information, data or End User Data provided by End User, Users, or other third parties; or (e) End User’s failure to cooperate or allow Company to install a revision, update or release provided by Company that would have eliminated the infringement.
11.4 Possible Infringement. If Company believes the Subscription Service infringes or may be alleged to infringe a third-party’s Intellectual Property Rights, then Company may: (a) obtain the right for End User, at Company’s expense, to continue using that Subscription Service; (b) provide a non-infringing, functionally equivalent replacement; or (c) modify the Subscription Service so that it no longer infringes. If the options described in this Section are not commercially reasonable then Company may terminate End User’s use of the affected Subscription Service.
11.5 Process. The party seeking indemnification will promptly notify the other party of the claim and cooperate in defending the claim. Failure to provide timely notice or reasonable assistance will relieve the indemnifying party of its obligations under Section 11 to the extent the indemnifying party has been materially prejudiced. The indemnifying party will have full control and authority over the defense, including appeals, negotiations, and any settlement, except that: (a) it may not make an admission of fault on behalf of the other party without written consent, (b) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (c) the other party may join in the defense with its own counsel at its own expense. The indemnifying party will (i) retain and pay attorneys and court costs as part of its defense obligation, (ii) reimburse the other party for reasonable out‐of‐pocket expenses that it incurs in providing assistance, and (iii) pay the Losses resulting from an adverse final judgment or settlement. THIS SECTION 11 STATES THE SOLE LIABILITIES AND EXCLUSIVE REMEDIES FOR CLAIMS DESCRIBED IN SECTION 11.
12. Limitation of Liability
12.1 Limitation. The aggregate liability of each party together with all of its Affiliates, for all claims under these Terms is limited to direct damages up to the amount paid or payable for the applicable Subscription Services ordered pursuant to these Terms during the twelve (12) months prior to the event giving rise to liability. This limitation applies to any damage, however caused, and on any theory or liability, whether for breach of contract, tort, misrepresentation, negligence (active or otherwise), the use or performance of the Subscription Services, or otherwise and regardless of whether the damages were foreseeable or not.
12.2 Exclusion. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES OR LICENSORS BE LIABLE UNDER THESE TERMS FOR (A) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, (B) LOSS OF USE, DATA, BUSINESS, GOODWILL, OPPORTUNITY, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), OR (C) BUSINESS INTERRUPTION OR TOLL FRAUD, WHETHER AN ACTION IS IN CONTRACT, NEGLIGENCE OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE OR REASONABLY FORESEEABLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. NEITHER PARTY WILL BE LIABLE FOR ANY CLAIM BROUGHT BY THE OTHER PARTY MORE THAN 12 MONTHS AFTER THE OTHER PARTY BECAME AWARE OF THE CLAIM.
12.3 Exceptions to Limitations. The limits of liability in Section 12.1 apply to the fullest extent permitted by law, except with regard to: (a) violation of the other’s Intellectual Property Rights; (b) death or bodily injury claims, tangible property damage or fraud; (c) End User’s failure to comply with Section 3 (End User Use, Responsibilities and Restrictions); (d) injunctive relief; (e) breach of a party’s obligations under Section 9 (Confidentiality) or (g) breach of a party’s obligations under Section 11 (Indemnification). Notwithstanding anything to the contrary in these Terms, Company’s aggregate liability with respect to a Security Breach, End User Data and Personal Information will be limited to the amounts referenced in Section 12.1.
13. General Provisions
13.1 Entire Agreement. These Terms, any applicable Order Documents, and any amendments contain the entire agreement between Company and End User with respect to the End User’s access to and use of the Services and supersede all prior or contemporaneous understandings relating to the same subject matter. If there is a conflict between these Subscription Service Terms and any attached terms for a specific Subscription Service, the attached terms will control with respect to that specific Subscription Service only. All headings are for reference purposes only and must not affect the interpretation of the Terms.
13.2 Severability. If any part of these Terms is held unenforceable, the rest of the Terms remains in full force and effect.
13.3 Waiver and Modification. Failure to enforce any provision of these Terms will not constitute a waiver. Any waiver, amendment or other modification of these Terms must be in writing and signed by both parties.
13.4 Assignment. Neither party may assign any of its rights or obligations under these Terms, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign these Terms in their entirety, without the other party’s consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets. Notwithstanding the foregoing, if End User is acquired by, sells substantially all its assets to, or undergoes a change of control in favor of, either (i) a direct competitor of Company or (ii) an entity located outside of the United States, then Company may terminate these Terms. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their respective successors and permitted.
13.5 No Agency. Company and End User are not legal partners or agents but are independent contractors. Company does not undertake to perform any of End User’s regulatory obligations, or assume any responsibility for End User’s business or operations.
13.6 No Third-Party Beneficiaries. Except for any third-party rights held by Company’s licensors, there are no third-party beneficiaries to these Terms.
13.7 Force Majeure. Except for payment obligations, neither Company nor End User will be liable for inadequate performance to the extent caused by a condition that was beyond the party's reasonable control including but not limited to a pandemic, natural disaster, fire, flood, explosion, act of war or terrorism, cyber terrorism, riot, labor condition, governmental action, passage of laws or regulations or other acts of government that impact the delivery of Subscription Services, and Internet, telecommunications or utility disturbances (a Force Majeure Event).
13.8 Legal Notices. Legal Notices and approvals must be in writing, signed by a party’s authorized representative and sent by email transmission, overnight courier or registered or certified mail to the address designated by the parties or otherwise specified in writing by a party for notice. Notices provided by email transmission or overnight courier will be effective 1 business day after they are sent. Notices provided by registered or certified mail will be effective 3 business days after they are sent.
13.9 Dispute Resolution. The parties will attempt in good faith to resolve any controversy or claim promptly through business discussions and will, upon written request, escalate a dispute to executive management for resolution. If the parties fail to resolve the dispute within thirty (30) days of written request, or any longer period agreed to in writing, the parties may pursue the remedies to which they are entitled. This Section does not restrict either party’s right to seek injunctive relief.
13.10 Injunctive Relief. The parties acknowledge that any breach of their obligations under these Terms with respect to Intellectual Property Rights, Confidential Information, or End User’s breach of its obligations in Section 3 (End User Use, Responsibilities and Restrictions), may cause irreparable injury for which the remedies at law are inadequate and therefore the non-breaching party is entitled to immediate equitable relief, without requirement of posting bond and without the necessity of showing actual money damages, in addition to all other remedies provided by these Terms or available at law or in equity.
13.11 Governing Law. These Terms are governed by the State of Delaware, U.S.A., law, without regard to its conflict of laws principles. Each party waives the right to jury trial for any legal action, in law or equity. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transaction Act, as adopted by any state or governing body, does not apply.
13.12 Compliance with Laws. Each party will comply with the laws and regulations applicable to it in connection with its obligations and performance under these Terms. End User is responsible for ensuring that its use of the Subscription Services is in accordance with laws and regulations that apply to End User.
13.13 Export. Each party is responsible for ensuring that its actions with respect to the Subscription Services comply with the export control laws of the United States. The parties will not, directly or indirectly, export, re-export, transfer, re-transfer, sell, supply, or allow access to or use of the Subscription Services to, in, by, or for sanctioned, embargoed, or prohibited countries, persons, or end uses under U.S. or other applicable law (collectively, Prohibited Uses). End User is responsible for screening for Prohibited Uses and obtaining any required licenses, governmental approval, or other authorizations.
13.14 Language. The parties consent that the Terms and all related documents are in English.
13.15 U.S. Federal Government Users. The Subscription Services are provided to the U.S. government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions customarily provided to the general public as defined in these Terms. If a government agency is using the Subscription Services, then its use of the Subscription Services constitutes agreement that Subscription Services are “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data,” and constitutes acceptance of the rights and restrictions set forth in these Terms. If for any reason any Subscription Service is not considered commercial or these Terms are otherwise deemed not applicable, the Subscription Service will be deemed to have been provided with “restricted rights.” The terms “commercial item,” “commercial computer software,” “commercial computer software documentation,” “restricted rights” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
13.16 Defend Trade Secrets Act of 2016. Recipient of Confidential Information is on notice that it has a right to immunity in accordance with the Defend Trade Secrets Act of 2016 from any criminal or civil liability under any Federal or State law for any disclosure of secrets to a Federal, State or local government, or to an attorney, when the disclosure is made solely for the purpose of reporting or investigating a suspected violation of law, or as part of a complaint or other document filed in a lawsuit or proceeding if such filing is made under seal.
13.17 Non-Solicitation. For the term of these Terms and for 1 year after the termination date, neither party will, directly or indirectly, hire or solicit for hire, any employee or contractor of the other party who they learned of or met solely by virtue of their involvement in the receipt, provision or procurement of the Subscription Service. This prohibition does not apply where an employee or contractor of a Party seeks employment with another Party in response to an advertisement placed into the public domain for that position unless that other Party has solicited, directly or indirectly, the application from that employee for contractor or that position.
13.18 Publicity. End User agrees that Company may identify End User as an Company customer on any of Company’s websites, client lists, press releases, and/or other marketing materials. End User also agrees that Company may publish a description describing End User’s deployment of the Subscription Services and to participate in or host a reasonable number of reference calls or reference visits from Company prospects.
14. Use of Artificial Intelligence (AI)
14.1 We use artificial intelligence (AI) technologies to enhance our product functionality, improve user experience, and increase operational efficiency. The types of data processed for AI purposes may include:
a. Usage data (e.g., interaction logs, navigation flows)
b. Historical forecasting data
c. Metadata (e.g., time stamps, performance data)
14.2 How We Use AI. We are developing proprietary AI models trained on de-identified data. To support this work:
a. All data used for model training is de-identified and anonymized. We do not use personally identifiable information (PII), and we enforce strict controls to protect your data at every stage.
b. We aggregate End User Data, and open source call center data to ensure models are built on broad, generalized patterns — not tailored to any single End User. This helps maintain fairness and accuracy while preventing overfitting to individual environments.
c. All AI model development is done in-house. Your data stays within our secure infrastructure, protected by the same enterprise-grade security standards that govern all aspects of our platform.
14.3 Opting Out.
a. You have the right to opt out of having your data used for AI model training or improvement. You can exercise this right by contacting us at aioptout@aspect.com. If previous data was trained on a model, no new data will be included in a training set once opt out is verified.
14.4 Your Data, Your Control. We are committed to transparency and user choice:
a. Your data will never be used for AI training without being de-identified.
b. We will notify you of any material changes to our use of AI through this policy and other appropriate channels.
Aspect Public Cloud Service Description
The following Aspect Public Cloud Service Description and Terms (Public Cloud Terms) supplement the End User Terms (Terms) entered between the parties as it relates to the Aspect Public Cloud Service. If these Public Cloud Terms conflict with the Terms regarding the Aspect Public Cloud Service, these Public Cloud Terms will prevail.
1. Definitions
1.1 Aspect Public Cloud Subscription Service or Public Cloud Service means an enterprise cloud contact center service that includes a choice of Applications for self-service and agent assisted contact management and workforce optimization capabilities offered as a Subscription Service by Company.
1.2 Aspect Workforce Engagement Management Service means the Company enterprise level workforce engagement management solution (WFM).
1.3 Content means data, information, files, code, software, scripts, images, graphics, audio, video, text and any other object or information, whether in written or audio form (e.g., voice messages), transmitted to or from the Public Cloud Service by End User, its customers or Users.
1.4 End User Applications means web pages, software applications (including software applications designed by End User or its designees) and Content owned by End User that connect to and run on the Public Cloud Service and are accessed by End User and its Users. End User Applications form part of End User’s Intellectual Property Rights. End User Applications exclude any code, information, data and Applications owned by Company.
1.5 Minimum Ordered Users means the number of Users specified in an Order Document.
2. Aspect Public Cloud Services
2.1 Provision of Service. Company will make the Public Cloud Service available to End User pursuant to these Public Cloud Terms, the Terms, and applicable Order Document(s). During the Subscription Term, the Public Cloud Service will perform materially in accordance with the Documentation and Company will not materially decrease the functionality of the Public Cloud Service from that available at the beginning of the Subscription Term.
2.2 Data Storage. The Public Cloud Service includes storage of workforce-related data processed through the Public Cloud Service as described in the Documentation and, if available, as elected by End User. End User is responsible for compliance with applicable statutory data retention periods. Company's default data retention period is 10 years. End User may notify Company if it elects to use a shorter retention period.
2.3 Equipment and Connectivity. End User must comply with the minimum specifications set forth in the Public Cloud Service Documentation (e.g., equipment, bandwidth, operating environments) to connect to the Public Cloud Service. Company makes no representation or warranty that End User’s equipment will operate with the Public Cloud Service and has no responsibility or liability for the operation of End User’s equipment or the voice and data connectivity. Unless otherwise set out in the applicable Order Documents, End User is responsible for establishing and maintaining all connectivity between End User’s equipment and Public Cloud Service’s interconnection point.
2.4 Application Versions. The Subscription Service fees include maintaining the Public Cloud Service on the purchased software version and, subsequently, on the Application’s most current release. Updates are included in the Subscription Service fees and are installed during scheduled maintenance windows. Company is not obligated in any way to maintain any instance other than the current generally available version and may upgrade any non-compliant instance, suspend the service (without rebate, credit, or refund for any period of suspension), and may require the Authorized Reseller to charge additional fees until End User completes any actions required to move to the supported version. End User is also responsible for any Professional Service fees required to install or implement an Upgrade. “Upgrade” and “Update” are defined in the Support Policies.
3. End User Applications
3.1 In addition to the requirements in the Terms, if End User orders the Public Cloud Service, then End User will:
a. be responsible for properly configuring, developing, programming, testing and operating its End User Applications;
b. cooperate with Company to test all End User Applications and related End User systems prior to use in connection with Public Cloud Service and ensure compatibility and connectivity of the End User Applications with the Public Cloud Service;
c. ensure that all End User Applications will be configured with a maximum session timeout of no more than fifteen (15) minutes, unless explicitly agreed on by Company;
d. only deploy End User Applications that have been tested, that do not adversely affect the Public Cloud Service, and that do not contain endless loops or memory leaks; and
e. provide Company reasonable written notice before making a material change to an End User Application that would affect the Public Cloud Service resource utilization or deployment.
3.2 End User Applications and PCI. End User acknowledges that running an End User Application in a PCI environment solution does not mean that the Public Cloud Service will be error free, that any End User Application will be PCI compliant, or that all components of the PCI environment solution will be fully dedicated. End User is responsible for securing sensitive data running in the End User Applications.