SOFTWARE END USER LICENSE AGREEMENT

For inContact Solution

PLEASE READ CAREFULLY:  THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND/OR YOUR ORGANIZATION (“CUSTOMER”), AND NORSTAN COMMUNICATIONS, INC. d/b/a BLACK BOX NETWORK SERVICES (“BLACK BOX”).  USE OF THE SOFTWARE AND ASSOCIATED DOCUMENTATION IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE SERVICES CONTRACT.

GENERAL SOFTWARE TERMS

1. Definitions.

“Documentation” means materials concerning the Software which Black Box distributes generally to end users licensed to use the Software, including without limitation, manuals, descriptions, user and/or installation instructions, diagrams, printouts, listings, flowcharts and training materials, together with any modifications and updates of such materials provided by Black Box to Customer. “Documentation” does not include software code.

Intellectual Property” means all ideas, designs, concepts, object and source code, know-how and functionalities related to the products, Devices and Services, including but not limited to Software, Documentation, solutions overview, business requirements documents, statements of work, functional requirements guides, and implementation workbooks.

Software” means the software applications, including any periodic maintenance updates and revisions, used by Customer as part of the Services provided by Black Box pursuant to the Agreement, including, without limitation, agent, supervisor and reporting applications, web service applications, interactive voice response (“IVR”) and script development tools, database connectors and such future software applications as may be necessary for the effective use of the Services. From time to time third party software maybe included and identified as software applications used by Customer as part of the Services and therefore the Software.

MRC” means monthly recurring charges.

NRC” means non-recurring charges.

“Professional Services” means those optional setup, application, design and build, and consulting services that are separate from the Services Contract and are specifically agreed upon between Black Box and Customer in an Order. “Service Contract” includes the Hosted Unified Communications Services Agreement, this Software End User License Agreement, Order(s), and any applicable addenda.

“Service Term” means the term identified in Section 2 of the Hosted Unified Communications Services Agreement.

Services” means products, Devices and fees and related services set forth in the Service Contract.

Other capitalized terms herein shall have the meaning given to them in the Hosted Unified Communications Services Agreement.

2.  Maintenance and Updates. Product updates, enhancements or repairs are conducted during Black Box’s published maintenance period which are Wednesdays, Thursdays, and Fridays between the hours of 12:00 AM - 3:00 AM (Mountain Time). Black Box will provide Customer with at least a forty-eight (48) hour notice of any scheduled maintenance. Urgent updates and enhancements may be deployed outside of the published maintenance window if deemed necessary. Black Box will make every reasonable effort to perform unscheduled maintenance for critical updates or enhancements between the hours of 12:00 AM - 3:00 AM (Mountain Time) Monday through Sunday unless otherwise stated. Black Box will make reasonable efforts to provide Customer with advanced notice of the application of critical updates or enhancements and to perform unscheduled maintenance for critical updates or enhancements. Under certain circumstances, software downloads will be required by Customer. In the case of suspension for routine maintenance or reconfiguration, Black Box will make commercially reasonable efforts to limit the duration of any such suspension and shall endeavor to give Customer advance notification thereof. Black Box will not be liable to Customer for any interruption under this Section 2 (General Software Terms) and for any interruption due to maintenance and updates otherwise stated in specific terms.

3.  Professional Services. Professional Services hours above and beyond what is specified in the Customer’s Service Contract will be charged the applicable per-hour rate specified in the Order. Professional Services per-hour rates are valid six (6) months from the date of the Order. Professional services hours listed on the Order are only estimates. Final professional services hours required to complete this project will be determined based on a Business Requirements Document (“BRD”) as scoped by a Black Box sales engineer in cooperation with Customer. Black Box provides a billable, ad hoc technical consulting offering named PS On-Demand (“PSOD”). PSOD is a separate offering and is not included in the standard Services Agreement. Pricing for PSOD is subject to change without notice but is clearly stated prior to the delivery of the service.

4.  Limited License. Subject to the terms and conditions of the Service Contract and effective only during the Service Term, Black Box grants to Customer a non-exclusive limited license to use Software and Documentation solely to operate the Services provided by Black Box on the Customer’s facilities. Nothing in these terms or in the Service Contract shall be construed to grant to Customer any right to reproduce, market, or distribute any of Software and Documentation. Customer shall not: (i) attempt to reverse engineer, decompile, disassemble or otherwise translate or modify the Intellectual Property in any manner, nor (ii) sell, assign, license, sub-license or otherwise transfer, transmit, or convey the Intellectual Property. During the Service Term and after termination of the Services for any reason, Customer shall not use any of the Intellectual Property for any use or purpose, except as expressly permitted under the Agreement to operate the Services during the Service Term, and Customer shall not disclose any of the Intellectual Property to any other person or entity. Black Box may terminate any license granted to Customer if the Services are used for any illegal purpose or in any way contrary to any law or regulation, tampered with or modified without prior Black Box authorization, or if the Services are used other than for the intended use or purpose of that Service.

5. Commitment Level. For any complete component failure experienced by the Customer on any given day, Black Box will credit the Customer 1/30th of the MRC. The maximum credit issued in any monthly billing period will not exceed one-hundred percent (100%) of the aggregate amount of the MRC billed in that month. The MRC for each component is the portion of the aggregate Service billing in each monthly billing period attributable to that component.          

No credit will be issued for outages that are caused by:

•         Customer’s equipment, software, facility, databases, or operator error not directly caused by the actions of Black Box, the Services, or Software provided under this Agreement;

•         An interruption in Customer’s connection to the Internet not directly caused by the actions of Black Box, the Services, or Software provided under this Agreement;

•         An interruption in Customer’s telephony or voice service, local or long distance not directly caused by the actions of Black Box, the Services, or Software provided under this Agreement;

•         Maintenance and modification of Component software, of which Customer is given advance notice; or

•         Force Majeure events as provided in Section 10 under these General Software Terms.

Requests for a credit must be submitted to Black Box within thirty (30) days following the date of the component outage. Black Box considers a request submitted when Black Box receives from Customer a fax or email requesting a credit and identifying:

• The Customer’s name and account number

• Date(s) and approximate beginning / ending time of the outage

• The Component(s) affected by the outage

6.  Data Storage and Management.  Storage and management of Customer owned data for use with software products will be provided by Black Box at the rate, per gigabyte, specified in the Service Contract or, if no rate is listed, at the current Black Box Data Storage and Management rate. Customer may delete stored data, or if applicable, may elect to establish a Time-To-Live (“TTL”) for stored data to be transferred to an FTP site. Customer will pay the same applicable rate for data stored on the Black Box servers, on the Black Box FTP site, or on a third party platform. Subsequent changes to TTL and alternate methods of transfer of stored data will be subject to Professional Service fees at the applicable per-hour rate, in addition to any expenses accrued for additional hardware and shipping costs. Black Box may destroy all Customer stored data thirty (30) days after the deactivation of associated software services or the termination or expiration of the Agreement.

7.  Limitation of Liability.  NEITHER BLACK BOX NOR ITS AFFILIATES OR SUPPLIERS SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER OR ITS AFFILIATES FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER, regardless of the form of action, whether in contract or in tort, including negligence, and regardless of whether such party has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. In no event shall Black Box be liable for any damages, liabilities, costs or expenses arising from or in connection with the acts, omissions, or delays of any third party vendor or underlying carrier; provided, however, that Black Box shall make reasonable efforts to obtain performance by such third party vendors and underlying carriers on a timely basis. Remedies under this Agreement are exclusive and limited to those expressly described herein.

8.  Disclaimer of Warranties. EXCEPT AS OTHERWISE PROVIDED HEREIN, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE SERVICES OR ANY PART THEREOF, RELATED PRODUCTS, EQUIPMENT, SOFTWARE OR DOCUMENTATION. BLACK BOX SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO; WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS.

9.  Export Restrictions. Software is or may be subject to United States export control laws. None of the Software or underlying information or technology may be downloaded or otherwise exported or re-exported into a country to which the U.S. has embargoed goods; to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders; or to any country who is considered by the U.S. as a supporter of international terrorism without proper authorization from the U.S. government. The Customer shall indemnify, defend and hold Black Box harmless of and from any and all damages incurred by Black Box as a result of the Customer’s failure to obtain the necessary licenses to export, re-export, or import Software, or for any other breach of these Terms.

10.  Force Majeure.  Neither party shall be liable for any failure to perform its obligations under this Agreement because of circumstances beyond the reasonable control of such party, which such circumstances shall include (without limitation) natural disaster, terrorism, riot, sabotage, war, global or regional Internet outages, power failures, any acts or omissions of any government or governmental authority, declarations of government, or transportation delays.

11.  Governing Law. This Agreement shall be governed by the laws of the State of Utah, excluding conflicts of law provisions. Jurisdiction for any dispute arising hereunder shall be valid exclusively in federal and state courts located in Salt Lake County, Utah.