THIRD-PARTY PRODUCT AMENDMENT TO THE GENESYS CLOUD SERVICES AGREEMENT
Last updated October 9, 2024
This Third-Party Product Amendment to The Genesys Cloud Services Agreement (the “Amendment”) is between Cresta Intelligence Inc. (“Cresta”) and Customer and is accepted and effective on the date the applicable Services Order is signed by Customer (the “Amendment Effective Date”). This Amendment amends the Genesys Cloud Services Agreement between Genesys and Customer (the “Agreement”) solely as the Agreement relates to the Cresta Services. Except as provided below, all capitalized terms used herein have the meanings assigned to them in the Agreement. Cresta and Customer amend the Agreement as follows:
1. DEFINITIONS
Where applicable, with respect to the Cresta Services, the term Genesys shall mean Cresta.
- 1 “Cloud Services” is amended to include the Cresta Services.
- 2 “Documentation” is amended to refer to the standard documentation provided by Cresta to assist Customer in using the Cresta Services, including user and system administrator guides and manuals.
- 3 “Implementation Service(s)” means implementation and configuration tasks provided by Cresta as defined in a Services Order.
- 4 “Cresta Services” means the Implementation Service(s) and Subscription Service(s).
- 5 “Subscription Service(s)” means Cresta’s proprietary subscription-based solution as further described in a Services Order.
2. Section 2.2 (Continuous Delivery) is amended to include the following: Cresta shall provide support for the Subscription Service(s) as described in the Cresta Service Level Agreement, located HERE.
3. Section 2.3 (Support and Security) is amended to include the following: The Subscription Service(s) will be provided in material accordance with the security policies and procedures available at trust.cresta.com.
4. Section 2.4 (Updates) is deleted in its entirety and replaced with the following: Cresta may modify the Cresta Services as long as such modifications do not materially degrade the functionality or features of the Cresta Services.
5. With respect to the Cresta Services, Section 7 (Warranties) is deleted in its entirety and replaced with the following:
7. Warranties
7.1 Subscription Service Warranty. Cresta warrants that, during the term of any Order Form for the Subscription Service, the Subscription Service will materially conform with the Documentation. Cresta makes no warranty regarding features or services provided by third parties. For any breach of the above warranty, Customer must specify the non- conformity and Cresta will, at no additional cost to Customer, provide remedial services necessary to enable the Subscription Service to conform to the warranty. Customer will provide Cresta with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any non-conformity. These remedies are Customer’s sole remedies for breach of the above warranty. Such warranty shall only apply if the Subscription Service has been utilized by Customer in accordance with the Order Form and this Agreement.
7.2 No Other Warranty. CRESTA DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT ALL ERRORS IN THE SERVICES WILL BE CORRECTED OR THAT THE OVERALL SYSTEM THAT MAKES THE SERVICE AVAILABLE (INCLUDING BUT NOT LIMITED TO THE INTERNET, OTHER TRANSMISSION NETWORKS, AND CUSTOMER’S LOCAL NETWORK AND EQUIPMENT) WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY CRESTA. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SERVICES ARE ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSES
6. Section 9.1 (Genesys IP Indemnification) is deleted in its entirety and replaced with the following: Cresta will indemnify, defend and hold Customer harmless against any costs, liabilities, losses, and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) incurred relating to a third party claim against Customer or alleging that Customer’s use of the Cloud Services infringes any United States patent, copyright, or trademark. Excluded from the above indemnification obligations are claims to the extent arising from (a) use of the Cloud Services in violation of this Amendment or applicable law, (b) use of the Cloud Services after Cresta notifies Customer to discontinue use because of an infringement claim, (c) any claim relating to any third party products or services or Customer Content, (d) modifications to the Cloud Services made other than by Cresta, (e) the combination, operation, or use of the Cloud Services with software or equipment which Cresta did not provide; or (f) compliance by Cresta with Customer’s requirements or specifications. If the Cloud Services are held to infringe, Cresta will, at its own expense, in its sole discretion, use commercially reasonable efforts to either (a) procure a license that will protect Customer against such claim without cost to Customer; (b) replace the Cloud Services with non-infringing services without material loss of functionality; or
(c) if (a) and (b) are not commercially feasible, terminate this Amendment. The rights and
remedies granted to Customer under this Section state Cresta’s entire liability, and Customer’s exclusive remedy, regarding any claim of infringement of the intellectual property rights of a third party.
7. Section 9.3 (Customer’s Indemnification) is deleted and replaced with the following:
Customer will defend Cresta and its Affiliates from and against any third party claims alleging that Customer’s content, Customer Data, methods or processes of doing or conducting business, or customizations (other than those undertaken and performed by Cresta) infringe or misappropriate a third party’s intellectual property or privacy rights, including any failure by Customer to obtain proper consent for Cresta to access the content, Customer Data, methods, or processes, and will indemnify Cresta and its Affiliates from any damages finally awarded, and pay for any settlements agreed to by Customer, with respect to such claims.
8. Section 11.1 (Data Residency) is deleted in its entirety.
9. Where applicable, Cresta’s Data Processing Addendum and Business Associate Agreement, located at https://cresta.com/legal, are hereby incorporated into this Amendment by reference and will apply to Cresta’s processing of any Customer Data.
10. Cresta’s obligations under the Agreement shall only apply to the Cresta Services ordered under this Amendment. Cresta has no obligation to provide or support the Cloud Services Customer orders from Genesys. Likewise, Genesys’ obligations under the Agreement shall only apply to the Cloud Services ordered from Genesys. Genesys has no obligation to provide or support the Cresta Services under this Amendment. Customer agrees that any claims related to the Cresta Services shall be brought only against Cresta and any claims related to the Cloud Services, not including the Cresta Services, shall be brought only against Genesys.
11. Except as specifically amended hereby, the Agreement shall remain in full force and effect, and this Amendment shall be enforceable as of the Amendment Effective Date. If there is a conflict between the terms and conditions of the Agreement and this Amendment, the terms of this Amendment shall control.