TERMS OF SERVICE v1.2
Last Modified: April 5, 2019
IMPORTANT – READ CAREFULLY BEFORE ACCEPTING THESE TERMS.
THESE TERMS ARE BETWEEN YOU AND Avaya cloud INC., A WHOLLY OWNED SUBSIDIARY OF AVAYA INC., AND A delaware USA corporation with principal offices at 350 mount kemble ave., morristown, nj 07960 or the appropriate avaya affiliate (“company”) providing the services to you.
YOU REPRESENT THAT YOU ARE A corporation, COMPANY OR OTHER BUSINESS entity, and not a consumer, AND THAT YOU HAVE authorized the person accepting THESE TERMS TO BIND YOU TO THESE TERMS. the person accepting THESE TERMS on Your behalf represents that THEY HAVE read theSE TERMS in full and haVE full legal authority to legally bind You to these terms. such person’s online acceptance of THESE TERMS will have the same legal effect as if You were providing a handwritten signature of acceptance. IF such person DOes NOT HAVE SUCH AUTHORITY OR if You DO NOT WISH TO BE BOUND BY THESE TERMS, SELECT THE “REJECT” (OR EQUIVALENT) BUTTON AT THE END OF THESE TERMS (if such a button exists), or do not use or access the services. otherwise, select the “Accept” (or equivalent) button at the end of THESE TERMS to signify that You agree to THESE TERMS. If an accept (or equivalent) button is not present, then your use or access of the services signifies that you agree to THESE TERMS. These terms ARE effective as of the date You EITHER select the “Accept” button or download, access or use the services. yOU recognize and agree that the services are for business use and not for consumers, and YOU represent and warrant that You will use the Services for business purposes ONLY AND not for personal, family, household, or any other consumer purpose.
“Affiliate” means, with respect to either party, an entity that is directly or indirectly controlling, controlled by, or under common control with a signatory of these Terms. For purposes of this definition, “control” means the power to direct the management and policies of such party, directly or indirectly, whether through ownership of voting securities, by contract or otherwise; and the term “controlled” has the meaning correlative to the foregoing. “Customer,” “You”, or “Your” as referenced herein means the legal entity which is accepting these Terms, placing an order under these Terms, or is downloading, accessing or using the Services (or has permitted somebody to do so on its behalf).
Incorporated into these Terms by reference are the following Schedules and the AUP. If applicable, these Terms also consist of one or more of the following Attachments:
➣ Schedule 1, Supplemental Terms for Avaya OneCloud Services
➣ Schedule 2, Add-on Services Supplemental Terms
➣ Schedule 3, Google Supplemental Terms
1. SERVICE PROVIDED; ORDERS; ORDER OF PRECEDENCE; CHANGES; SYSTEM REQUIREMENTS
1.1 Service Provided. Upon acceptance (pursuant to Section 1.3 below), Company will make the Services available to Customer. The term of Your access to the Services (a “Subscription”) will continue for the period stated in the Customer’s order and commences upon the date the Service is available for Your use (“Initial Term”). Unless otherwise prohibited by applicable law or otherwise agreed in writing by Company, the Initial Term will renew and continue to renew automatically (“Renewal Term”) and in accordance with the applicable description of the Services then current as of the date of Customer’s ordering of the Services (“ Service Description”) or Supplemental Terms, unless either party gives the other thirty (30) days (or longer period if expressly set out by Company in the applicable Service Description or Supplemental Terms ) advance written notice before the end of the current term of their intent not to autorenew. The Renewal Term shall be the same duration as the Initial Term, unless otherwise stated in writing by Company. The Initial Term and any Renewal Term shall be referred to collectively as the (“Service Period”).
1.2 Customer may use the Service solely for the Customer’s internal business use in accordance with and in the countries designated in the applicable Service Description or Supplemental Terms and, for avoidance of doubt, not for further sublicense or resale. Customer’s rights to use the Service are limited to those expressly granted in these Terms. No other rights with respect to the Service or any related Company Intellectual Property are implied.
1.3 Orders. Orders are subject to acceptance by Company. Company may accept an order by electronic email, at the email address provided by Customer to Company from time to time, other agreed means of electronic communication or by commencing to perform the Service. Accepted orders will be governed by these Terms. All other terms and conditions contained in any Customer purchase order or other document not expressly referenced in these Terms will have no effect.
1.5 Changes to, and Discontinuation of, the Service.
1.5.1 Unless the Service Description or Supplemental Terms expressly provides otherwise, Company may, at its sole discretion, modify the form, features, or functionality of the Service and Service Description without prior notice. Company will endeavor to timely document material modifications in the Service documentation at the URLs provided in these Terms, and Customer is responsible for monitoring the documents for notice of such changes.
1.5.2 Notwithstanding anything to the contrary, Company may discontinue the Service, in part or in its entirety, at any time, and will endeavor to provide Customer sixty (60) days advance notice.
1.6 System Requirements. Except as may be expressly set forth in the Service Description or Supplemental Terms, the Service does not include the provision of compatible devices or software to access the Service, Internet access, connectivity and SIP trunking. Customer’s ability to use the Service may be affected by the performance of these items and other similar items. System requirements for the Service may change and Customer is solely responsible to adhere to the system requirements at Customer’s own expense.
1.7 Registration. To access the Service, Customer may be asked to provide certain information, including, without limitation, email or physical addresses, before any use of, or access to, the Service will be permitted. Customer agrees that any registration information shall be accurate, correct, and up to date. Customer agrees to promptly update such information as needed, including but not limited to the physical location of each user. Customer shall be solely responsible for all activities that occur under Customer’s account or Subscription.
1.8 Acceptable Use Policy. The Acceptable Use Policy (“AUP”) posted at http://support.avaya.com/LicenseInfo (or such successor site as designated by Company) describes actions that Company prohibits when any party uses its services and is incorporated by reference herein. Customer may not use the Services without agreeing to this AUP.
1.9 Mobile Services. Some or all of the Service may be available or accessible via a compatible mobile device. Company cannot guarantee that all mobile devices are or will be compatible with the Service, and Customer is responsible for all mobile service charges.
2 Payment, Invoicing, and Taxes.
2.1 Charges. Unless otherwise stated in the Service Description, Supplemental Terms, or order, prices are quoted on a consumption and/or subscription basis and are expressed in U.S. Dollars. Pricing herein does not include charges for taxes, fees, and surcharges, which may be included in the invoices. All fees due to Company under these Terms are non-cancellable and the sums paid are non-refundable, except as otherwise expressly provided in these Terms. By subscribing to the Service, Customer authorizes Company to investigate Customer’s credit worthiness and agrees, from time to time, to provide appropriate authorizations and financial information as Company may reasonably request for this purpose. Payments must be made at the address designated on the invoice or other such place as Company may designate.
2.2 If You use a credit card or other payment mechanism for a transaction, Your account is billed at the time of or shortly after Your transaction. In such case, You hereby authorize Company or its payment processor to bill Your credit card or other payment mechanism as may be approved by Company in advance or on a periodic basis in accordance with the terms on the order or Service Description. You will provide Company with (and maintain) valid and updated credit card information or other payment information reasonably acceptable to Company. If a credit card is declined and no replacement card has been entered, Your Subscription and access to the Service will be suspended, and You agree to pay any outstanding fees within thirty (30) days after receiving notification from Company. If the credit card is accepted on any billing attempt, the Subscription will remain the same as the original date for subsequent months. Receipt by Company’s payment processor of final good funds in settlement of Your credit card or other payment transaction will satisfy Your payment obligation. Subject to certain credit requirements as determined by Company, Company may agree to allow You to pay amounts due hereunder in arrears. In such event, You will make all of the payments due hereunder within thirty (30) days of the date of the invoice. Notwithstanding the foregoing, for any additional Add-on Service described in Schedule 2, Company may invoice Customer separately in accordance with Section 2 herein.
2.3 In the event Customer adds or removes users during a month, Company will charge Customer a prorated portion of the per-user Subscription fees for such added or removed user.
2.4 Late Payments. Company may suspend licenses and performance of the Services for which payment is overdue until the overdue amount is paid in full or otherwise terminate an order for Services or these Terms. Overdue payments will be subject to a late payment charge of the lesser of one and one half percent (1.5%) per month (19.56% per annum) or the maximum rate allowed by applicable law. Customer will reimburse Company for reasonable attorneys’ fees and any other costs associated with collecting delinquent payments.
2.5 Payment Disputes. Customer must dispute any charges for the Services in writing within ten (10) business (or other time as expressly set forth in the Supplemental Terms or Service Description) days after the date of the invoice at issue; otherwise, notwithstanding anything to the contrary, Customer waives any dispute or further recourse with respect to the applicable charges. Any disputes by Customer must be brought in good faith. Payments of any disputed amount are due and payable upon resolution.
2.6 Price Changes. Company reserves the right to change the fees associated with any Services upon thirty (30) days’ advance notice. Customer’s continued use of the Service after any price change becomes effective constitutes Customer acceptance of the modified fees, and such amounts shall apply as of the first day of the next month after the fee change was posted or communicated to Customer.
2.7 Taxes. Unless Customer provides Company with a current tax exemption certificate, Customer is solely responsible for paying all legally required taxes, including without limitation any sales, use, excise or other taxes and fees which may be levied upon the Service, except for any (a) taxes that are imposed on, measured by, or based upon net income of Company; and (b) taxes in the nature of franchise, doing business, or capital stock taxes if such taxes are based on or measured by capital stock value, par value or net worth of Company and are imposed by any taxing jurisdiction in which Company is subject to such taxes as a result of transactions or activities not related to these Terms . If Customer is required to bear a tax pursuant to this Section or make any withholding, then Customer will pay such tax and any additional amounts as are necessary to ensure that the net amounts received by Company hereunder, after all such payments or withholdings, equal the amounts to which Company is otherwise entitled under these Terms as if such tax or withholding did not exist.
2.8 Changes to these Terms. Company may modify theSE terms at any time at its sole discretion to the extent required to comply with (a) changes to laws or regulations applicable to the services, (b) governmental orders, (c) modifications to the service, or (d) obligations imposed by company suppliers, BY POSTING MODIFIED TERMS on https://www.avaya.com/en/termsofservice/ or such successor site as designated by COMPANY) OR UPON NOTICE to you BY Company VIA EMAIL OR THROUGH SOME OTHER MEANS DESIGNATED BY COMPANY. CHANGES TO THESE TERMS Will BE EFFECTIVE AS OF THE DATE WE POST THEM or, AT COMPANY’S DISCRETION, issue our notice to you of such change, UNLESS WE SPECIFY A DIFFERENT EFFECTIVE DATE WHEN WE MAKE A PARTICULAR CHANGE. YOU ARE solely RESPONSIBLE FOR CHECKING FOR any AGREEMENT UPDATES. Your continued use of the Service means that you accept and agree to any revised Terms AND CONDITIONS. In the event Customer does not agree to any such modification, Your sole and exclusive remedy is to discontinue using the Service and terminate these Terms by providing written notice to Company of its intent to terminate within fifteen (15) days after Company notifies Customer of (or posts) the modified terms. In the event Customer notifies Company of its intent to terminate these Terms during such fifteen (15) day response period, these Terms shall terminate, and Customer shall cease use of the Service, effective as of the last day of the billing period during which the Customer notified Company of its intent to terminate.
3 AGREEMENT TERM; TERMINATION; CHANGES TO THE AGREEMENT; DOWNTIME AND SERVICE SUSPENSION; SURVIVAL
3.1 Agreement Term. These Terms begin when accepted by You (“the “Effective Date”) and continue until terminated in accordance with Sections 3.2 and 3.3.
3.2 Termination for Cause. Either party may terminate these Terms or any order hereunder if the other party materially breaches these Terms and fails to correct such breach within thirty (30) days of written notice of the breach (without prejudice to Company’s rights as set forth in the AUP and otherwise under contract, equity, statute or otherwise). Without limiting the foregoing, failure to comply with payment obligations constitutes a material breach. If Company terminates under this provision, then in addition to any other rights Company may have, Customer will be responsible for all fees for the Service for the full term of the remaining order, as well as any early termination or cancellation fees (if applicable).
3.3 Termination for Convenience. Customer or Company may terminate these Terms for any reason by providing thirty (30) written notice upon expiration or termination of all Customer’s orders (with the exception of during the Free Trial Period, if applicable, when Customer’s written notice of termination will be effective immediately upon Company’s receipt of Customer’s notice). Individual orders may be terminated for convenience by Customer in accordance with the conditions set forth in the General Terms and/or the Supplemental Terms or Service Description, and subject to termination, true up, or cancellation fees (if any). For any pre-pay contracts, any cancellation that occurs before the Service Period ends will not be entitled to a refund.
3.4 Expiration/Termination. Upon expiration of the Service Period or termination pursuant to Sections 3.2 or 3.3, Customer shall immediately cease use of the Service and return or destroy (in accordance with Company’s instructions) any deliverables provided to Customer in connection with the Service, including any Company Intellectual Property. Upon request, Customer shall certify in writing that Customer has complied with this provision and Company may provide such certification to its suppliers. Except as provided in Section 3.2, any termination of these Terms will not affect any rights or obligations of the parties under any order accepted before the termination of these Terms became effective. Under all circumstances, Customer shall pay Company the fees for the Service through the effective date of expiration or termination, in addition to any true up or early termination/cancellation fees (if applicable). The provisions contained in these Terms will continue to apply to such accepted orders until their completion or expiry of the order.
3.5 Downtime and Service Suspensions. Customer acknowledges that: (a) Customer’s access to and use of the Service may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Service for any reason, including as a result of power outages, hacking, system failures, fraud prevention, or other interruptions; and (b) Company shall also be entitled, without incurring any liability to Customer, to suspend access to any portion or all of the Service at any time, on a Service-wide basis: (i) for scheduled downtime to permit Company to conduct maintenance or make modifications, upgrades, or updates to any Service; (ii) in the event of a denial of service attack or other attack on the Service or other event that Company determines, in its sole discretion, may create a risk to the applicable Service, to Customer or to any of Company’s other customers if the Service were not suspended; or (iii) in the event that Company determines that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). Without limitation to Section 9, Company shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that Customer may incur as a result of any Service Suspension. To the extent Company is able, Company will endeavor to provide Customer notice of any Service Suspension in accordance with the Service Description and to post updates regarding resumption of the Service following any such suspension, but shall have no liability for the manner in which Company may do so or if Company fails to do so.
3.6 Survival. The provisions concerning survival, Company’s Intellectual Property rights, disclaimer of warranties, limitation of liability, any indemnification obligations under these Terms in any section of these Terms, Feedback, Confidentiality and Protection, Governing Law, Dispute Resolution, and any other terms which, by their nature, are intended to survive termination will survive any such termination of these Terms.
4 CUSTOMER CONTENT AND MARKS
4.1 Customer is solely responsible for the content of all information and communications, whether visual, written, audible, or of another nature, sent, displayed, uploaded, posted, published, or submitted by Customer (including Customer personnel) while utilizing the Service (“Customer Content”) and for the consequences of doing so, including any loss or damage to Company, its suppliers or a third party. Company has no responsibility to Customer or to any third party for Customer Content. Customer represents and warrants that (a) Customer is the owner of all copyrights and other Intellectual Property rights in Customer Content or has the necessary rights and licenses, consents, permissions, waivers and releases to access, use, store, archive for a period of time, modify, display, reproduce, prepare derivative works of, and distribute Customer Content; and (b) Company, its suppliers and subcontractors are authorized to do the same to the extent necessary for the purpose of providing the Service.
4.2 As between Company and the Customer, Customer retains all right, title and interest in and to Customer Content. Customer is solely responsible for protecting and enforcing, at Customer expense, any Intellectual Property rights Customer may have in Customer Content.
4.3 Company will not share Customer Content or Other Users’ Content (as defined in Section 4.1) with any third parties unless: (a) Company has Customer written or electronic consent for sharing any of Customer Content and Other Users’ Content; (b) it is required by law; or (c) Company provides Customer Content or Other Users’ Content to third parties (e.g. sub-contractors) to carry out tasks on Company’s behalf (e.g., data storage, etc.) as directed by Company and subject to appropriate agreements with those third parties.
4.4 Customer hereby grants Company a limited, non-exclusive, non-transferable, non-sublicensable license to display Customer trade names, trademarks, service marks, logos, domain names and the like (“Customer Marks”) and to host and display likenesses and photo images for the purpose of providing the Service to Customer or promoting or advertising that Customer uses the Service; provided, that the use of Customer Marks in connection with these Terms shall not create any right or title in or to the use of the Customer Marks and all such use and goodwill associated with Customer Marks will inure to the benefit of Customer.
5 OTHER USERS’ CONTENT
5.1 Other Users’ Content. Company does not control and shall have no liability or responsibility for the content of any information and communications, whether visual, written, audible, or of another nature, sent, displayed, uploaded, posted, published, or submitted by other users while interacting with the Service, including, without limitation, likenesses or photo images, advertisements or sponsored content (“Other Users’ Content”). Other Users’ Content may be protected by copyright and other Intellectual Property rights of such users or other persons.
5.2 Customer represents and warrants that (a) Customer is authorized by Customer’s customers and by any other individuals with whom Customer interacts or communicates via the Service to access, use, store, archive for a period of time, modify, display, reproduce, prepare derivative works of, and distribute their Other Users’ Content; (b) Company, its suppliers and subcontractors are authorized to do the same to the extent necessary for the purpose of providing the Service; and (c) Customer is fully responsible for any damages, liabilities, or losses (including, without limitation, attorneys’ fees and court costs) incurred by Company arising from any failure by Customer to comply with Sections 5.2(a) or (b).
6 COMPANY ’S INTELLECTUAL PROPERTY RIGHTS
6.1 Company Owns Company Intellectual Property. Company and/or its Affiliates, licensors or suppliers own all right, title, and interest in and to the Service and all Intellectual Property; including but not limited to software (if any), any and all deliverables provided to Customer in connection with these Terms as well as any know-how, derivative works, inventions, processes, databases, documentation, training materials, and any other Intellectual Property and any tangible embodiments of it (collectively, “Company Intellectual Property”). Customer shall not copy, modify, rent, lease, sell, loan, distribute, or create derivative works of the Service or any Company Intellectual Property. “ Intellectual Property” means all present and future worldwide copyrights, trademarks and other marks, trade secrets, inventions, patents and mask work rights, moral rights, contract rights and other proprietary rights, and all types of registrations, current and future applications, renewals, extensions and reissues of the foregoing, and all other Intellectual Property rights, industrial property rights and other similar proprietary rights recognized in any relevant jurisdiction worldwide.
6.2 Marks. Nothing in these Terms grants Customer any right to use any trade names, trademarks, service marks, logos, domain names, trade dress, or other distinctive brand features of Company or its subcontractors or suppliers. Customer shall not remove, obscure, or alter any proprietary rights notices, such as copyright or trademark notices, attached to or contained within Company Intellectual Property, the Service, or any software.
7 RIGHTS AND DISCLAIMERS
7.1 All information transmitted through the Service is the sole responsibility of the person from whom such information originated. Company is not responsible for and will not be liable in any way for such content. Company reserves the right, but is not obligated to: (a) pre-screen, refuse, flag, filter, or remove any material posted on the Service, including any Customer Content, which Company, in its sole discretion, deems inconsistent with these Terms, including any material Company has been informed or has reason to believe constitutes Intellectual Property infringement; and/or (b) take any action it deems appropriate with respect to any prohibited use of the Service or other Company Intellectual Property or other use of the Service that it deems to be inappropriate, in violation of these Terms, or potentially disruptive to the Service or Company’s network, including, without limitation, issuing warnings or disabling or terminating Customer’s Subscription to the Service, accounts or any user’s access to all or part of the Service. Notwithstanding any other provision in these Terms, Company may take the action(s) set forth in Sections 7.1(a) and 7.1(b), or similar actions, without notice or liability to Customer or any other party, although Company will have no obligation or responsibility to take any such action or review material or content posted on the Service. Accordingly, Company assumes no liability for any action or inaction regarding transmissions, communications, or content provided by Customer or any third parties.
7.2 Customer acknowledges that, as part of the Service, Company may, for a period of time, but is not obligated to, archive Customer Content and Other Users’ Content and may periodically delete Customer Content and Other Users’ Content after a certain period of time without notice to You, including, without limitation, after expiration or termination of Your Subscription or as may be required by applicable law. To the extent that You wish to retain any Customer Content or Other Users’ Content, You are solely responsible to ensure that such information is downloaded, saved and/or backed-up. Company may also implement reasonable limits as to the size or duration of storage of any Customer Content or Other Users’ Content.
7.3 Any security feature is not a guaranty against malicious code, deleterious routines, and other techniques and tools employed by computer “hackers” and other third parties to create security exposures. Compromised passwords represent a major security risk. Company encourages Customer to create strong passwords using three different character types, change Customer password regularly and refrain from using the same password regularly. Customer must treat such information as confidential. Customer agrees to notify Company immediately upon becoming aware of any unauthorized use or breach of a user name, password, account, or subscription. Customer is responsible for ensuring that Customer’s networks and systems are adequately secured against unauthorized intrusion or attack and regularly backing up Customer data and files in accordance with good computing practices.
7.4 It is Company’s policy to respond to notices of alleged copyright or trademark infringement that comply with applicable international Intellectual Property law (including, without limitation, in the United States the Digital Millennium Copyright Act) and where appropriate at Company’s discretion to terminate the accounts or subscription of infringers. If You would like to send Company an alleged copyright or trademark infringement notice as it pertains to the Service, go to the following link http://support.avaya.com/AvayaCopyrightAgent (or such successor site as designated by Company) and follow the instructions on how to get in touch with Company. If You have trouble accessing this link, then You may contact Company for further information at email@example.com with the subject line: “DCMA Takedown Request” or by mail to:
Avaya Copyright Agent Notification
350 Mount Kemble Avenue
Morristown, NJ 07960
8 DISCLAIMER OF OTHER WARRANTIES
Except as set for IN THE SUPPLEMENTAL TERMS and TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, Company provides no OTHER WARRANTIES, AND EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE or any services hereunder, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER COMPANY, NOR ITS LICENSORS, NOR ITS SUPPLIERS WARRANTS THAT: (A) CUSTOMER’s USE OF THE SERVICE WILL MEET CUSTOMER REQUIREMENTS OR PROVIDE ANY SPECIFIC RESULTS; (B) CUSTOMER’s USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR OR VIRUSES; (C) THAT CUSTOMER’S USE OF THE SERVICE WILL BE FREE FROM LOSS, CORRUPTION, OR DELETION OF CUSTOMER OR THIRD PARTY DATA; (D) THAT THE SERVICES WILL PREVENT TOLL FRAUD; (e) information or content provided to customer through the use of the services will be accurate or reliable; (F) defects in the service will be corrected, OR (g) THE SERVICE WILL HAVE ANY PARTICULAR UP-TIME, QUALITY OF SERVICE, OR QUALITY OF VOICE OR FAX COMMUNICATIONS.
9 LIMITATION OF LIABILITY
EXCEPT FOR CLAIMS OF PERSONAL INJURY, WILLFUL MISCONDUCT, VIOLATION OF COMPANY’S OR ITS SUPPLIERS’ OR LICENSORS’ INTELLECTUAL PROPERTY RIGHTS, AND/OR TO THE EXTENT OF THE DEFENSE AND INDEMNIFICATION OBLIGATIONS UNDER THESE TERMS, IN NO EVENT WILL COMPANY AND ITS AFFILIATES AND LICENSORS OR SUPPLIERS, OR CUSTOMER, BE LIABLE, REGARDLESS OF THE THEORY OF LIABILITY OR WHETHER ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE OR OTHERWISE FOR: (A) ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, STATUTORY, INDIRECT, OR CONSEQUENTIAL DAMAGES; (B) LOSS OR CORRUPTION OF DATA OR INTERRUPTED OR LOSS OF BUSINESS; OR (C) TOLL FRAUD, ANY LOSS OF PROFITS, REVENUE, REPUTATION, GOODWILL, OR ANTICIPATED SALES OR SAVINGS, OR COST OF COVER, SUBSTITUTE GOODS, OR PERFORMANCE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBIILITY OF SUCH DAMAGES.
ALL LIABILITY OF COMPANY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS COLLECTIVELY FOR CLAIMS ARISING OUT OF THESE TERMS, CUSTOMER’S ORDER, OR THE SERVICE SHALL NOT EXCEED THE FEES PAID TO COMPANY FOR THE SERVICE DURING THE TWELVE (12) MONTHS BEFORE THE LAST EVENT THAT GAVE RISE TO THE CLAIM. THE LIMIT IS IN THE AGGREGATE AND NOT PER INCIDENT.
NOTHING IN THESE TERMS LIMITS OR EXCLUDES LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
10.1 Company’s Defense and Indemnification Obligations. Company will defend Customer against third party claims brought against Customer to the extent arising solely from an allegation that the Service directly infringes a third party patent or copyright. Company will indemnify Customer against damages (specifically excluding any increased or enhanced damages resulting from Customer’s willful infringement) finally awarded against Customer by a court of competent jurisdiction or a settlement amount approved by Company. Company’s obligations under this Section will not apply if the claim arises or results from (a) Customer’s breach of these Terms (including, but not limited to the AUP and Supplemental Terms attached hereto), and the Service Description, (b) modification to the Service or use of the Service outside the scope of these Terms, (including, but not limited to the AUP and Supplemental Terms attached hereto), and the Service Description, (c) combination, operation, or use of the Service with, or damages based on the value of, products, software, data, services or business processes not provided by Company, (d) non-Company products, software, services, or business processes, (e) Company’s compliance with any designs, specifications, requirements or instructions provided by Customer or a third party on Customer’s behalf, (f) use of non-current or unsupported versions of the Service, or use of the Service after Company notifies Customer to stop use due to a third party claim, (g) Customer Content or data, Other Users’ Content or any other content not provided by Company, or (h) any services, products, software or business processes Customer provides based on or related to the Service. In the event a claim is made or likely to be made, Company may, at Company’s option, (i) procure for Customer the right to continue using the Service under the terms of these Terms, or (ii) replace or modify the Service to be non-infringing without material decrease in functionality. If these options are not commercially reasonably available, at Company’s discretion, Company may terminate the Service upon written notice to Customer and refund Customer any advanced payments for unused subscription rights.
10.2 Your Defense and Indemnification Obligations. Customer will defend and indemnify Company and its Affiliates, and their respective officers, directors, employees, contractors, suppliers, licensors, partners and agents (each, an “Company Indemnified Party”) against third party claims brought against a Company Indemnified Party arising from (a) Customer’s breach of these Terms (including, but not limited to the AUP and Supplemental Terms attached hereto), and the Service Description, (b) Customer’s violation of applicable law, (c) Customer Content or data, Other Users’ Content, or the combination of Customer’s Customer Content or data, or Other Users’ Content, with other applications, content or processes (including, but not limited to any claim involving infringement or misappropriation of third party rights), (d) Customers use of the Services, (e) a dispute between Customer and any client, or dispute between Customer and any third party with whom Customer uses the Service to interact, or (f) Customers or its employees’ or agents’ negligence or willful misconduct. Customer will defend and indemnify the applicable Company Indemnified Party against all damages finally awarded against the Company Indemnified Party (or the amount of any settlement entered into by Customer) with respect to such claims.
10.3 Indemnification Procedures. The party against whom a third party claim is brought will (a) timely notify the other party in writing of the claim (provided, that the failure to provide timely notice shall not relieve the indemnifying party of its obligations under Section 10 unless the indemnifying party’s defense of such claim is materially prejudiced by such failure), and (b) reasonably cooperate in the defense of the claim and may participate in the defense of the claim at its own expense. The party that is obligated to defend a claim will have the right to fully control the defense and to settle the claim; provided, however, that any settlement of a claim shall not include a financial or specific performance obligation on, or admission of liability by, the party against whom the claim is brought.
10.4 Sole Remedy. THE FOREGOING STATES THE INDEMNIFYING PARTY’S ENTIRE LIABILITY, AND THE INDEMNIFIED PARTY’S SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY INTELLECTUAL PROPERTY CLAIMS. THE FOREGOING ALSO IS IN LIEU OF, AND COMPANY DISCLAIMS, ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE SERVICE AND ANY OTHER COMPANY INTELLECTUAL PROPERTY.
11.1 Definitions. For the purpose of these Terms: (a) “Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”), as well as any information that constitutes “Personal Information” regarding a “Consumer” as such terms are defined in the California Consumer Privacy Act, Cal. Civ. Code 1798.100 et seq. (“CCPA”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person; (b) “Processing”, “Process”, “Processed” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction; (c) “Data Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data, as well as any entity meeting the definition of “Business” under the CCPA; (d) “Data Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Data Controller, as well as any entity meeting the definition of “Service provider” under the CCPA. For the avoidance of doubt, the foregoing terms shall have the meaning as per the European General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016) (“GDPR”), except where a specific term is referenced in this section and defined as provided under the CCPA, in which case that term shall have the meaning provided under the CCPA.
11.2 Processing Personal Data on behalf of Customer
11.2.1 Any Processing of Personal Data by Company under these Terms shall occur only (a) on behalf of Customer (including when Processing is initiated by Customer’s users), (b) in accordance with these Terms, and (c) for the purpose of fulfilment of Customer’s written instructions.
11.2.2 Customer’s instructions for the Processing of Personal Data shall comply with applicable data protection laws and regulations. Customer shall have sole responsibility for the legitimacy, adequacy and accuracy of Personal Data and the means by which Customer acquired Personal Data. Provided Company considers an instruction of Customer to violate applicable data protection regulations, it shall notify Customer without undue delay. This does not include an obligation of Company to actively monitor Customer instructions for compliance.
11.2.3 These Terms are Customer’s complete and final instructions at the time of signature of these Terms to Company for the Processing of Personal Data. However, such instructions may be amended, supplemented or replaced by Customer in documented form at any time (new instruction). If such new instructions from Customer exceed the scope of these Terms, they shall be considered as a request to amend these terms, and the parties shall commence good faith negotiation on this change request.
11.2.4 If for any reason Company is unable to comply with any agreed instruction(s), Company will inform Customer of this fact without undue delay. Customer may then suspend the transfer of Personal Data to Company, restrict the access to it, request all Personal Data to be returned to Customer and / or terminate these Terms as per the terms of these Terms.
11.2.5 Customer is responsible as Data Controller for compliance with the applicable data protection laws and regulations, unless the applicable laws and regulations specifically impose an obligation on Company (acting as Data Processor).
11.2.6 Company will Process Personal Data as necessary to provide Services pursuant to these Terms (and as further instructed by Customer in its use of the above) and for the performance of promotional activities of other Company’s products and services.
11.2.7 Company will Process Personal Data for the duration of these Terms, unless otherwise agreed upon in writing or required / allowed by applicable law.
11.2.8 The categories of Data Subjects affected by the Processing of Personal Data on behalf of Customer within the scope of these Terms result from these Terms and in particular from Customer’s individual usage of Services provided by Company. They typically include: employees, agents, advisors, freelancers and business partners of Customer (who are natural persons); natural persons (employees etc.) of customers and prospective customers of Customer, as well as of Customer customers’ customers, etc.
11.2.9 The types of Personal Data affected by the Processing on behalf of Customer within the scope of these Terms result from these Terms and in particular from Customer’s individual usage of (and input into) Services provided by Company. They typically include: name, contact information (company, title / position, email address, phone number, physical address), connection data, location data, video / call (recordings) data, information concerning family, lifestyle and social circumstances (including age, date of birth, marital status, number of children and name(s) of spouse and / or children) and metadata derived thereof, etc.
11.3 Company’s personnel. Company shall: (a) ensure all employees involved in Processing of Personal Data on behalf of Customer have committed themselves to confidentiality, are prohibited from Processing Personal Data without authorization, have received appropriate training on their responsibilities; (b) appoint in country / global data protection officer, to the extent required by the applicable law, and provide his / her contact details on request to Customer in writing.
11.4 Technical and organizational measures
11.4.1 Company has implemented and shall maintain technical and organizational security measures that are appropriate with respect to the Processing of Personal Data that is undertaken on behalf of Customer. Company shall ensure a level of security appropriate to the risk of varying likelihood and severity for the rights and freedoms of Data Subjects and regularly check their abidance.
11.4.2 Company shall be entitled to modify its technical and organizational measures as long as an at least equivalent level of security appropriate to the risk of varying likelihood and severity for the rights and freedoms of natural persons is maintained. Current technical and organizational measures at Company may be reviewed and accessed via https://www.avaya.com/en/privacy-toms-customers-24778. Additional technical and organizational measures and information concerning such measures may be specified in these Terms and associated documentation.
11.5 Sub-processors (sub-contractors) and international Personal Data transfers
11.5.1 Customer hereby declares its consent authorizing Company to engage any further sub-processors (Company’s Affiliates and other third parties) to Process Personal Data on behalf of Customer, which may include Personal Data transfer to other countries worldwide. Company shall make sure that at least equivalent data protection obligations, as set out in this Section 11, are imposed on all sub-processors Processing Personal Data on behalf of European Economic Area or Switzerland (“EEA / CH”) based Customers by way of a contract or other legal act under European Union or European Member State law, in particular providing sufficient guarantees to implement appropriate technical and organizational measures. A list of sub-processors that may be engaged by Company while Processing Personal Data on behalf of EEA / CH based Customers can be found via https://www.avaya.com/en/privacy-subcontractors. At least twenty (20) calendar days before Company engages any new sub-processor, Company will update the directory on the website above. Customer is entitled to object to the use of new sub-processor(s) for any Processing of Personal Data on its behalf with a term of ten (10) business days after any new sub-processor is listed on the aforementioned website. This objection shall be sent by e-mail to firstname.lastname@example.org (a) referencing the full legal name (and other credentials) of Customer and these Terms, (b) including the copy of the respective purchase order, and (c) providing the reason for the objection. If Customer exercises his right to objection, Company shall at its choice and sole discretion (a) refrain from using the objected sub-processor to Process Personal Data on behalf of Customer and confirm this to Customer in writing, (b) contact Customer and seek for an agreement on a mitigation of the reason for the objection (if an agreement between the parties is reached, Customer shall revoke the objection), or (c) have the right to terminate these Terms entirely or only with respect to the Processing on behalf of Customer for which the objected new sub-processor shall be engaged.
11.5.2 For any transfer of Personal Data to a country outside the EEA/CH the requirements of Article 44 GDPR must be fulfilled. The transfers of Personal Data between Company’s Affiliates shall be governed by the Binding Corporate Rules Policy. The Company’s Binding Corporate Rules Policy is available at www.avaya.com/privacy-BCRprocessor and is incorporated herein by reference. If Company transfers Personal Data originating from the EEA / CH to third party sub-processors (i.e., Company’s sub-contractors that are not Company’s Affiliates) located in to other countries outside the EEA / CH that have not received a binding adequacy decision by the European Commission, such transfers shall be subject to (a) the terms of Standard Contractual Clauses (as per European Commission’s Decision 2010/87/EU); or (b) other appropriate transfer mechanisms that provide an adequate level of protection in compliance with the GDPR.
11.6 Requests from Data Subjects. Company shall, in accordance with applicable laws, promptly notify Customer if Company receives a request from Data Subject or Consumer to exercise his rights, such as: right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or right not to be subject to an automated individual decision making, etc. Taking into account the nature of the Processing, Company shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to Data Subject and Consumer request under data protection laws and regulations. In addition, to the extent Customer, in its use of the Services provided by Company, does not have the ability to address a Data Subject or Consumer request, Company shall upon Customer’s written request assist Customer in responding to such Data Subject or Consumer request, to the extent Company is legally permitted to do so and the response to such Data Subject or Consumer request is required under applicable data protection laws and regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Company’s provision of such assistance.
11.7 Notification and incidents
11.7.1 Immediately notify Customer of any actual or alleged incident of unauthorized or accidental disclosure of or access to any Personal Data or other material breach of these Terms by Company or any of its staff, sub-processors or any other third party (the "Security Breach");
11.7.2 Promptly provide Customer with full cooperation and assistance in respect of any Security Breach and all information in Company's possession concerning the Security Breach, including the following: (a) the possible cause and consequences of the breach; (b) the categories of Personal Data involved; (c) a summary of the possible consequences for the relevant Data Subjects; (d) a summary of the unauthorized recipients of Personal Data; and (e) the measures taken by Company to mitigate any related risk and / or loss or damage or (potential loss or damage);
11.7.3 Not make any announcement or publish or otherwise authorize any broadcast of any notice or information about a Security Breach (the "Breach Notice") without the prior written consent from Customer; and prior written approval by Customer of the content, media and timing of the Breach Notice unless such Beach Notice is mandatory under the applicable law.
11.8 Data protection impact assessment and prior consultation. Upon written request of Customer and subject to reasonable remuneration which shall be subject to a separate agreement, Company shall assist Customer in ensuring compliance with its obligations pursuant to Articles 35 (Data protection impact assessment) and 36 (Prior consultation) GDPR, taking into account the nature of processing and the information available to Company.
11.9 Return and deletion of Customer Personal Data
11.9.1 Personal Data (including any copy of it) shall not be kept longer than is required for the Processing purposes, unless (a) a longer retention period is required by applicable law or (b) Customer instructs Company in writing (i) to keep certain Personal Data longer and Company agrees to follow such instruction or (ii) return or delete certain Personal Data earlier.
11.9.2 The return of any data storage medium provided by Customer to Company shall be conducted without undue delay (a) after termination / expiration of the Processing activity or (b) earlier as instructed by Customer.
11.10.1 Upon prior written request by Customer and within a reasonable term Company shall supply Customer with reasonable information required to effectively perform an audit on Company’s compliance with Section 11 of these Terms.
11.10.2 Upon prior written notice and within a reasonable term Company shall grant Customer access to its data Processing facilities, data files and documentation relevant for the Processing activities during its usual business hours without disturbances to the normal course of operations. For clarity purposes Company is not under an obligation to provide Customer with an access to its systems which Process Personal Data of other Company’s customers / partners (Data Controllers). The engagement of a third party auditor to conduct the audit on behalf of Customer shall be subject to Company’s prior written consent, which may only be refused on due cause, and to an executed written confidentiality agreement between the third party auditor, Customer and Company. Customer will provide Company any audit report(s) generated in connection with any audit under this Section 11.10.2. Customer may use the audit report(s) only for the purposes of meeting its regulatory audit requirements and / or confirming compliance with the requirements of these Terms. The audit report(s) shall constitute confidential information of the parties under these Terms.
11.11 Co-operation with law enforcement authorities
Company reserves the right to fully cooperate with any law enforcement authorities, regulatory authorities, or court order requesting or directing Company to disclose the Personal Data of anyone posting any messages or content or publishing or otherwise making available any materials that are believed to violate these Terms. Customer is fully responsible for informing all relevant Data Subjects with whom Customer may communicate or otherwise interact via the Service of the foregoing right belonging to Company. BY ACCEPTING THESE TERMS, CUSTOMER WAIVES AND HOLDS HARMLESS COMPANY FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN DURING OR AS A RESULT OF ITS INVESTIGATIONS AND / OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER COMPANY OR LAW ENFORCEMENT AUTHORITIES. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY RESERVES THE RIGHT TO INVOICE CUSTOMER AN ADMINISTRATIVE FEE TO RECOVER COMPANY’S COST TO RESPOND TO VALID SUBPOENAS, COURT ORDERS OR COMPLAINTS ISSUED BY A COMPETENT LAW ENFORCEMENT AUTHORITY, REGULATORY AUTHORITY, OR COURT OF LAW REGARDING ABUSIVE OR FRAUDULENT USAGE OF THE SERVICE BY CUSTOMER OR ITS END USERS.
Company welcomes Customer comments, suggestions, or feedback (collectively, “Feedback”) about the Service. All such Feedback provided by Customer to Company or its authorized channel partners becomes Company’s property and Customer agrees that all Intellectual Property rights therein are transferred and hereby assigned to Company. Customer agrees to cooperate fully with Company in connection with such transfer and assignment and Company may use such Feedback however it elects without any monetary or other consideration of any kind owed to Customer or any third party.
13 EXTERNAL LINKS AND THIRD PARTY SERVICES
In some cases, the Service may contain hyperlinks to non-Company websites, content, or resources or otherwise interface or work with third party services which are not maintained or controlled by Company (collectively, “External Services and Sites”). Customer’s use of such External Services and Sites is at Customer’s own risk. Customer acknowledges and agrees that Company has no responsibility for the availability, security, or other aspect of External Services and Sites; Company does not endorse any advertising, products, resources or third party services available on such External Services and Sites or the External Services and Sites themselves. Company shall not be liable for any loss or damage incurred related to such External Services and Sites, including, without limitation, their availability or the completeness, accuracy, or existence of any advertising, products, or other materials on or available through them.
14 CONFIDENTIALITY AND PROTECTION OF SERVICE
14.1 Confidentiality. “Confidential Information” means non-public confidential or proprietary information of the disclosing party that is (a) clearly marked confidential at the time of disclosure or (b) a reasonable person would know, based on the circumstances surrounding disclosure and the nature of the information, that the information should be treated as confidential. The party receiving Confidential Information (“Receiving Party”) will exercise the same degree of care that it uses to protect its own Confidential Information but in no event less than reasonable care to (i) protect and not disclose to third parties (except as otherwise permitted in these Terms) any Confidential Information, (ii) restrict dissemination of Confidential Information to individuals (including Receiving Party’s employees, agents, directors, officers, professional legal advisers, Affiliates and/or subcontractors) with a need to know and who are under a substantially similar duty of confidentiality, and (iii) not use any Confidential Information for any purpose other than to perform its obligations under these Terms. The Receiving Party’s obligations hereunder shall not apply to information that (i) is rightfully in its possession prior to receipt from the disclosing party, (ii) is or becomes publicly available other than as a result of a breach of these Terms, (iii) is rightfully obtained by the Receiving Party from a third party under no obligation of confidentiality with respect to the information, or (iv) is independently developed by the Receiving Party. The Receiving Party may disclose Confidential Information to the extent required by law or regulation. The confidentiality obligations of each party will survive for three (3) years following termination of these Terms and any orders under it, or the period required by applicable law, whichever is greater, including laws governing the protection of personally identifiable information and the protection of trade secrets; provided trade secrets will remain confidential for so long as they remain trade secrets under applicable law or until Confidential Information falls under one of the exceptions to the confidentiality obligations specified in this Section.
14.2 Protection of Service. Customer acknowledges that the Service, any deliverables delivered to Customer in connection with the Service, and all other Company Intellectual Property are the property and Confidential Information of Company, its suppliers, and/or its licensors and contain trade secrets of Company, its suppliers, and/or its licensors. Customer agrees at all times to protect and preserve the Service, any such deliverables, and Company Intellectual Property and to implement reasonable security measures to protect the trade secrets of Company, its Affiliates, suppliers, and its licensors.
15 SOFTWARE LICENSE TERMS AND UPDATES
15.1 If use of the Service requires Customer to download software or software is otherwise made available to Customer, such software is licensed pursuant to (1) the terms and conditions made available to Customer when Customer downloads or installs the software portion of the Service, or (2) if no such terms and conditions exist, then the applicable Global Software License Terms posted at http://support.avaya.com/LicenseInfo as applicable (or such successor site as designated by Company) as of the date of the service commencement per the Customer order will apply, for the sole purpose of using the Service, in accordance with these Terms or Service Description, and solely for the duration of the Service Period.
15.2 It is possible that software may automatically download and install updates from Company or its Affiliates from time to time. In such event, Customer agrees to allow such updates to be promptly downloaded and installed as part of Customer’s use of the Service.
16 GOVERNING LAW, DISPUTE RESOLUTION
16.1 Governing Law. These Terms and any dispute, claim or controversy arising out of or relating to these Terms (“Dispute”), including without limitation the formation, interpretation, breach or termination of these Terms, or any issue regarding whether a Dispute is subject to arbitration under these Terms, will be governed by California State laws, excluding conflict of law principles, and the United Nations Convention on Contracts for the International Sale of Goods.
16.2 Dispute Resolution. Any Dispute will be resolved in accordance with the provisions of this Section 16. The disputing party shall give the other party written notice of the Dispute in accordance with the notice provision of these Terms. The parties will attempt in good faith to resolve each controversy or claim within thirty (30) days, or such other longer period as the parties may mutually agree, following the delivery of such notice, by negotiations between designated representatives of the parties who have dispute resolution authority.
16.3 Arbitration of Non-US Disputes. If a Dispute that arose anywhere other than in the United States or is based upon an alleged breach committed anywhere other than in the United States cannot be settled under the procedures and within the timeframe set forth in Section 16.2, it will be conclusively determined upon request of either party by a final and binding arbitration proceeding to be held in accordance with the Rules of Arbitration of the International Chamber of Commerce by a single arbitrator appointed by the parties or (failing agreement) by an arbitrator appointed by the President of the International Chamber of Commerce (from time to time), except that if the aggregate claims, cross claims and counterclaims by any one party against the other party exceed One Million US Dollars at the time all claims, including cross claims and counterclaims are filed, the proceeding will be held in accordance with the Rules of Arbitration of the International Chamber of Commerce by a panel of three arbitrator(s) appointed in accordance with the Rules of Arbitration of the International Chamber of Commerce. The arbitration will be conducted in the English language, at a location agreed by the parties or (failing agreement) ordered by the arbitrator(s). The arbitrator(s) will have authority only to award compensatory damages within the scope of the limitations of Section 9 and will not award punitive or exemplary damages. The arbitrator(s) will not have the authority to limit, expand or otherwise modify the terms of these Terms. The ruling by the arbitrator(s)) will be final and binding on the parties and may be entered in any court having jurisdiction over the parties or any of their assets. The parties will evenly split the cost of the arbitrator(s)’ fees, but Company and Customer will each bear its own attorneys' fees and other costs associated with the arbitration. The parties, their representatives, other participants and the arbitrator(s) will hold the existence, content and results of the arbitration in strict confidence to the fullest extent permitted by law. Any disclosure of the existence, content and results of the arbitration will be as limited and narrowed as required to comply with the applicable law. By way of illustration, if the applicable law mandates the disclosure of the monetary amount of an arbitration award only, the underlying opinion or rationale for that award may not be disclosed.
16.4 Choice of Forum for US Disputes. If a Dispute by one party against the other that arose in the United States or is based upon an alleged breach committed in the United States cannot be settled under the procedures and within the timeframe set forth in Section 16.2, then either party may bring an action or proceeding solely in either the Superior Court of the State of California, Santa Clara County, or the United States District Court for the Northern District of California. Except as otherwise stated in Section 16.3 each party consents to the exclusive jurisdiction of those courts, including their appellate courts, for the purpose of all actions and proceedings arising out of or relating to these Terms.
16.5 Injunctive Relief. Nothing in these Terms will be construed to preclude either party from seeking provisional remedies, including, but not limited to, temporary restraining orders and preliminary injunctions from any court of competent jurisdiction in order to protect its rights, including its rights pending arbitration, at any time. The parties agree that the arbitration provision in Section 16.3 may be enforced by injunction or other equitable order, and no bond or security of any kind will be required with respect to any such injunction or order.
16.6 Time Limit. Actions on Disputes between the parties must be brought in accordance with this Section within two (2) years after the cause of action arises. For the avoidance of doubt, this time limit does not trump the ten (10) business day period in Section 2.5, Payment Disputes.
16.7 Compliance. Customer and Company will cause their Affiliates to comply with the dispute resolution procedures described in this Section.
16.8 Disputes with Other Users. Customer is solely responsible for Customer’s interactions with third parties with whom it uses the Service to interact. Company will have no liability with respect to such Customer interactions or disputes that may arise between Customer and such third parties. Company reserves the right, but has no obligation, to become involved with disputes between Customer and any such third party in the event that Company’s interests are impacted.
17.1 Some Services may involve recording and/or monitoring. For those Services, information uploaded to or in any way passing through the Service, including written, visual, or oral communications or other electronic means, may be recorded or monitored for quality assurance, diagnostic, and/or training purposes. By accessing or using the Service, You consent to such recording, monitoring and usage. You are also responsible for informing anyone with whom You interact or otherwise communicate via the Service that information uploaded to or in any way passing through the Service, including written, visual or oral communications or other electronic means, may be recorded or monitored for quality assurance, diagnostic, and/or training purposes.
17.2 Recording of Conferences. If conferences are applicable to the Service You are subscribing to, You acknowledge that the laws of certain states, provinces or countries require that if a conference is to be recorded, all participants in the conference must be informed of that prior to the recording taking place, so they may consent to being recorded (if required by applicable laws) in the relevant jurisdictions when using recording features. You acknowledge and agree that You shall be solely responsible for complying with the local laws in the relevant jurisdictions when using recording features (this includes Your obligation to obtain the consent, if required by applicable laws, of all participants before the commencement of the recording). Company shall have no liability to You or any participant in Your recorded conference if such announcement is not made or You fail to comply with applicable laws.
18.1 Compliance with Laws. Customer shall observe all applicable local, state, national, foreign and international laws and regulations when accessing and/or using the Service and any work product or content of the Service, including, without limitation, any export and import laws and/or regulations.
18.2 International Trade Compliance. Customer shall not import/export, re-export and/or transfer any work product or content of the Service when accessing and/or using Service in violation of the import/export control laws and regulations of the United States, Canada, Wassenaar Arrangement Member States, World Trade, World Customs Organizations and local laws. In that regard, Customer represents and warrants that: (a) Customer shall obtain any export, re-export, or import authorizations as required; (b) Customer shall not use the Service, content, or work product from Company’s Service to design, develop or produce missile, chemical/biological, or nuclear weaponry; and (c) neither Customer nor anyone acting on Customer behalf who accesses or uses the Service, content or work product from Company’s Service are (i) subject to total and/or partial country embargos, or (ii) a foreign person or entity blocked or denied by the United States, Canada, Wassenaar Arrangement Member States, World Trade, World Customs organizations or local laws.
18.3 High Risk Activities. The Service is not designed, manufactured, or intended for any use in any environment that requires fail-safe performance in which the failure of the Service could lead to death, personal injury, or significant property damage (“High Risk Activities”). Customer assumes the risk for use of the Service in any High Risk Activities.
18.4 Force Majeure. Company will not be liable for any delay or failure in performance, including failure of the Service to function or operate, to the extent the delay or failure is caused by events beyond Company’s reasonable control, including, without limitation, fire, flood, Act of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, inability to secure services or materials, transportation or hosting facilities.
18.5 Agreement in English. The parties confirm that it is their wish that these Terms, as well as all other documents relating hereto, including all notices, have been and shall be drawn up in English only. Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s'y rattachent, soient rédigés en langue anglaise. To the extent that the Civil code of Québec is found to govern any part of these Terms, the Customer hereby waives its rights pursuant to articles 2125, 2126 and 2129 of the Civil code of Québec, and acknowledges that its sole rights and recourses with respect to termination of these Terms are those set forth in these Terms.
18.6 Miscellaneous. These Terms (including, but not limited to, the AUP and Supplemental Terms attached hereto) and, applicable Service Description and the Service order(s)) constitutes the entire understanding of the parties with respect to the subject matter of these Terms and will supersede all previous and contemporaneous communications, representations or understandings, either oral or written, between the parties relating to that subject matter and will not be contradicted or supplemented by any prior course of dealing between the parties. . Except as otherwise provided herein in Section 2.8, Changes to These Terms, any modifications or amendments to these Terms must be in writing and physically or electronically signed by both parties. In no event will electronic mail constitute a modification or amendment to these Terms. If any provision of these Terms is determined to be unenforceable or invalid by court decision, these Terms will not be rendered unenforceable or invalid as a whole, and the provision will be changed and interpreted so as to best accomplish the objectives of the original provision within the limits of applicable law. The failure of either party to assert any of its rights under these Terms, including, but not limited to, the right to terminate these Terms in the event of breach or default by the other party, will not be deemed to constitute a waiver by that party of its right to enforce each and every provision of these Terms in accordance with its terms. Customer agrees that no joint venture, partnership, employment, or agency relationship exists between Customer and Company as a result of these Terms or use of the Service. Company or its representative may audit at Company’s discretion, Customer’s compliance with these Terms and Customer’s use of the Service, and Customer shall reasonably cooperate with such audit.
18.7 Assignment & Subcontractors. Company may assign these Terms and any order under these Terms to any of its Affiliates or to any entity to which Company may sell, transfer, convey, assign or lease all or substantially all of the assets or properties used in connection with its performance under these Terms. Any other assignment of these Terms or any rights or obligations under these Terms without the express written consent of the other party (not to be unreasonably withheld) will be invalid. Company may subcontract any or all of its obligations under these Terms, but will retain responsibility for the work.
For Avaya OneCloud Services
These Supplemental Terms apply to Your purchase and use of the Avaya OneCloud Workplace, Avaya OneCloud Contact Center, Avaya SIP Trunking Services, and Avaya Spaces. In addition to these Supplemental Terms, Your use of the Service is at all times subject to the General Terms which incorporate these Supplemental Terms. Any terms used in these Supplemental Terms without defining them have the definitions given to them in the General Terms.
1. SERVICES PROVIDED; FREE TRIAL PERIOD; RENEWALS; NOTICES
1.1 Services Provided. The Service is sold on a consumption and/or subscription basis, until terminated as further outlined in the applicable Services Description. Company will notify Customer when the Services are available for Customer’s use (“Services Date”). Unless Customer notifies Company by the close of the second business day following the Service Date that the Services are not operational, the Service term will commence on the Services Date and will continue until expiration or termination of the Services.
1.2 Free Trial Period. The first thirty (30) days of Customer’s Service, or such other period as communicated to You in writing by Company, may be a free trial period (“Free Trial Period”). Customer is limited to one (1) Free Trial Period even if Customer has more than one Subscription. Company reserves the right to limit the number of users during the Free Trial Period. Customer may cancel its Service during the Free Trial Period without incurring any Service charges by providing notice of termination to Company at least one (1) day prior to the end of the Free Trial Period; provided, however, that any Equipment purchased hereunder are non-cancellable and non-refundable except as otherwise provided in the applicable Service Description.
1.3 Subscription Renewals; Charges for Auto-Renewing Subscriptions. You acknowledge and agree that if applicable, Your credit card on file or other payment mechanism will be automatically charged recurring renewal fees on a monthly basis during the Service Period unless you cancel Your Subscription (as defined herein). If You cancel a Subscription, You will not be entitled to a refund or a credit for any fees already due or paid, and You may be subject to Termination Fees as further outlined in the Service Description.
1.4 Notices. Any notice required or permitted under these Terms shall be delivered (a) with respect to notices delivered by Customer, for notices of Customer’s termination of the Service, by sending an email to email@example.com and for notices other than termination, by sending an email to firstname.lastname@example.org or by calling 1-844-303-9685 and (b) with respect to notices delivered by Company, to the email address Customer has provided to Company, , or by posting the notice in the Service. Notices given by Customer will be effective when received by Company. Notices given by Company will be effective when sent or posted.
2. USE OF THE SERVICE
2.1 System Requirements. In order to use the Service, Customer must, at Customer’s own expense, provide and utilize one or more compatible devices, internet access, session border controllers, and certain software, and may be required to obtain updates or upgrades to the foregoing from time to time. Customer’s ability to use the Service may be affected by the performance of these items. Customer acknowledges and agrees that system requirements for the Service may change from time to time and that adherence to the system requirements is Customer’s responsibility.
2.2 Co-operation Scope of Use/ Fair Usage. Company may take any action it deems appropriate with respect to prohibited use of the Service or other use of the Service that it deems to be inappropriate, in violation of these Terms, or potentially disruptive to the Company or Service or Company’s network, including but not limited to issuing warnings; terminating Customer’s Service, Subscription, accounts, or users; or disabling access to or suspending the Service, Subscription, or accounts. Customer’s use of the Service may be subject to certain restrictions and limits, including without limitation as to conference ports, number of users per subscription, and storage, which if applicable will be communicated by Company.
2.3 Support. Company will provide Customer with technical consultation support for the duration of the Service. Customer may access technical support for (a) Avaya OneCloud Workplace, Avaya SIP Trunking or Avaya Spaces by calling Company’s customer support help line at +1-844-303-9685 or by sending an email to email@example.com, and (b) Avaya OneCloud Contact Center by calling Company’s customer support help line at +1-866-282-9267, PIN 2762 (B-P-O-C) or by opening a web ticket at http://spoken.force.com/avaya. Technical support agents are available to answer Customer calls and respond to e-Tickets Monday through Friday from 7am to 7pm (Eastern Time).
3. Regulatory Fees. Company may charge Customer the following regulatory fees:
3.1 Federal and State Universal Service Fee. Company may be required to make contributions to the Federal and certain state Universal Service Funds (USF), which provide support to promote access to telecommunications services at reasonable rates for those living in rural and high-cost areas, income-eligible consumers, rural health care facilities, and schools and libraries. Company is permitted but not required to recover such costs from its customers. The Federal Communications Commission sets the Federal USF rates on a quarterly basis and they are subject to change each quarter.
3.2 911 Fee. This fee is imposed by local governments to help pay for emergency services such as fire and rescue.
3.3 911 Service Fee. Company may charge a per-DID/ phone number fee to recover Company’s costs directly associated with providing 911 and E911 to its customers.
3.4 Regulatory Recovery Fee. Company may charge a monthly regulatory recovery fee to offset costs incurred by Company in complying with obligations imposed by, and inquiries made by, federal, state and municipal regulatory bodies/governments and related legal and billing expenses. This fee is not a tax or charge required or assessed by any government. If assessed by Company, the regulatory recovery fee will apply to every DID/ phone number assigned to Customer, including toll free and virtual numbers.
3.5 Other Fees. Customer agrees to pay any other fees that may be levied on the Service which are chargeable to customers by any governmental authority.
4. DID NUMBERS
Company will make available to Customer a list of DID/telephone numbers from which Customer may choose their DID/telephone numbers. Customer will not be the owner of any DID/telephone number (including fax numbers) assigned to Customer by Company, and Customer will not transfer or attempt to transfer its number(s) to anyone else (except as provided in Section 5.2 below with respect to Porting Out).Customer will surrender all rights to the DID/telephone numbers and fax numbers upon termination of Customer’s Service if they have not been ported out in accordance with Section 5.2 below prior to such termination, and the numbers assigned to Customer may be reassigned upon termination of Customer’s Service. Company will not be liable for any damages arising out of such reassignment.Any DID/telephone number ported in or out by the Customer may incur a porting charge, though some or all of this charge may be waived at the sole discretion of Company.
5. LOCAL NUMBER PORTABILITY
5.1 Porting In. Customer may elect to port an existing DID/telephone number to Company (“Port-In”) for use with the Service. In the event Customer elects to Port-In a number, Customer must first select a temporary number from the list of DID/telephone numbers Company presents to Customer at the time Customer orders the Service, which will be used until the Port-In is complete. Company will support all valid requests and will cooperate with Customer to perform any Port-In in accordance with Customer’s reasonable directions and Company’s operating procedures. Company and its providers are not responsible for any delay, rejection, or false processing of Port-In requests to the extent such delay, rejection, or false processing is attributable to Customer, Customer’s prior provider, or any third parties.
5.2 Porting Out. Customer or a third-party provider acting as agent on behalf of Customer (“Requesting Party”) may request that Company port a number assigned to Customer by Company to a third party provider (“Port-Out”). Company will support all such requests and will promptly cooperate with the Requesting Party to perform any Port-Out in accordance with the Requesting Party’s reasonable directions and Company’s standard operating procedures. In the event of any Port-Out, Customer agrees that until such time as the Port-Out is complete and Customer terminates the Service for such DID/telephone number, Customer shall remain bound by the terms herein related to that DID/telephone number. Once the Port-Out is complete, Customer must terminate the Service associated with such DID/telephone number in order to stop incurring charges for such DID/ telephone number.
6. 711 DIALING
In the event the user’s registered location is not the same as the user’s geographic location, 711 calls may not be routed to the correct Telecommunications Relay Service (TRS) center for the user’s location.
7. SERVICE EXCLUSIONS
The Service does not include directory listings and operator and directory assistance and do not support 976 or 900 calls. The Service may not support 311, 411, 511, or other X11 calling (other than 911 and 711 as detailed in these Terms) in all or certain service areas.
8. 911 LIMITATIONS AND RESTRICTIONS.
8.1 EXCEPT AS REFERENCED AND LIMITED IN SECTION 3 OF ATTACHMENT 1 TO THIS SCHEDULE 1, THE SERVICE IS NOT DESIGNED FOR, NOR SHOULD IT BE RELIED UPON, FOR ANY TYPE OF EMERGENCY CALL.THIRD PARTY EMERGENCY SERVICES, INCLUDING, BUT NOT LIMITED TO 911 AND E911 SERVICE, USED WITH OR OTHERWISE MADE ACCESSIBLE USING THE SERVICE MAY FUNCTION DIFFERENTLY OR MAY BE LIMITED OR UNAVAILABLE, AND COMPANY AND ITS AFFILIATES, AND THEIR SUBCONTRACTORS AND SUPPLIERS, ARE NOT LIABLE IN ANY WAY FOR ANY SUCH CALLS. IT IS HIGHLY RECOMMENDED THAT ANY USER OF THE SERVICE HAVE AN ALTERNATIVE MEANS OF ACCESSING EMERGENCY SERVICES.
8.2 911/E911 LIMITATION OF LIABILITY/INDEMNITY. company AND its affiliates, officers, directors, employees, contractors, agents, LICENSORS, suppliers, and resellers (“911/e911 Indemnified parties”) WILL HAVE NO LIABILITY to CUSTOMER, ITS USERS, OR ANY THIRD PARTY, AND CUSTOMER WAIVES ALL CLAIMS AND CAUSES OF ACTION, ARISING OUT OF OR RELATED TO CUSTOMER, ITS USERS, OR ANY THIRD PARTY’S INABILITY TO DIAL 911 OR ANY OTHER EMERGENCY TELEPHONE NUMBER OR TO ACCESS AN EMERGENCY SERVICE OPERATOR OR EMERGENCY SERVICES. Customer hereby releases and agrees to indemnify, defend, and hold harmless the 911/e911 Indemnified parties from any and all claims, liability, damages, losses, expenses, and/or costs (including but not limited to attorneys’ fees and cost of suit) BY OR ON BEHALF OF CUSTOMER OR ANY THIRD PARTY OR USER arising from or related to the failure of 911/E911 to function or function properly or Company’s provision of 911/E911 services or failure to provide access to 911/E911 services.
9 Toll-Free Numbers
9.1 Company and/or its partners will serve as the Responsible Organization (“Resp Org”) for toll-free telephone numbers (“TFNs”) for toll free service (“TFS”). Customer may be assigned a TFN by Company, and may request that a specific number sequence be used if it is available. Customer may also retain an existing TFN used by Customer and have it be transferred to Company. Prior to termination of Customer’s account for any reason, Customer may request to transfer its TFN to another carrier or Resp Org at no extra charge. If Customer fails to transfer its TFN(s) to another carrier or Resp Org prior to terminating the account, then following the termination of Customer’s account, Customer’s TFN will remain under the control of Company. It is Customer’s responsibility to have the TFN transferred to another carrier or Resp Org prior to canceling the account.
9.2 The transfer of TFNs to another carrier or Resp Org is subject to applicable guidelines, including but not limited to, (a) the Federal Communications Commission’s TFN portability policies and rules, (b) the SMS/800 tariff and (c) the Industry Guidelines for Toll-free Number Administration, as either of the foregoing may be replaced or modified from time to time, and Company’s policies and procedures for TFN/traffic transfers in effect at the time of the requested transfer. Any toll-free phone number ported in or out by the Customer may incur a porting charge, though some or all of this charge may be waived at the sole discretion of Company.
9.3 TFN(s) ported in by the Customer for use with the Service remain available for use by the Customer and may be ported to another carrier or Resp Org of the Customer's choosing as long as the Service remains active for the duration of the porting process. If the Customer cancels one or more ported-in TFN from Customer’s Service or terminates the Service in whole prior to porting TFNs away, any canceled TFNs may not be available to port away as they may be released to the SMS/800 pool of spare TFNs or re-assigned to new Company customers. It is the Customer's responsibility to complete, prior to cancellation, the porting away of any ported-in TFNs the Customer wishes to retain for use by the Customer.
9.4 TFS may be used only as a toll-free inbound-only service and does not provide any outbound calling, 911 / E911 service, 311, 411, 511, 711 or any operator services. Customer will not use (or reconfigure to support such use) either TFS or any TFN obtained from Company in connection with TFS for any outbound calls placed by Customer or Customer’s end users, or any improper calls. In addition to any rights or remedies that may be available pursuant to the General Terms, the Supplemental Terms and/or the AUP, Company may immediately take any action to prevent improper calls, including, without limitation, denying TFS to particular numbers or terminating any TFS. If Customer uses or reconfigures TFS to place outbound calls, Customer will pay Company for any such calls at Company’s then-current applicable rates. CUSTOMER WILL INDEMNIFY AND HOLD HARMLESS COMPANY, ITS OFFICERS, EMPLOYEES, AGENTS AND AFFILIATES FROM AND AGAINST ANY AND ALL LOSES, CLAIMS, COSTS OR DAMAGES OF WHATEVER NATURE ARISING FORM OR RELATING TO CUSTOMER’S USE (AND/OR THE USE BY ANY CUSTOMER AND/OR RESELLER OF CUSTOMER) OF TFS IN VIOLATION OF THESE TERMS AND CONDITIONS.
10 EXCLUSION AND DISCLAIMER OF WARRANTIES
10.1 TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, Company provides the Service, including without limitation the software, websites, servers, content, SUBSCRIPTIONS, and accounts, on an “as is” and “as available” basis. Customer’s use of the Service is at its own risk. with the exception of the EQUIPMENT warranty in section 5 of attachment 2 to SCHEDULE 1 or the services and deliverables warranty in section 6 of schedule 2 OF these terms, which is limited as set forth therein, and TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER COMPANY NOR ITS, AFFILIATES, LICENSORS OR SUPPLIERS MAKES ANY EXPRESS REPRESENTATIONS, WARRANTIES, COVENANTS, OR CONDITIONS OF ANY KIND WITH REGARD TO THE SERVICES OR OTHERWISE RELATED TO THESE TERMS.
10.2 UNLESS OTEHRWISE REQUIRED BY APPLICABLE LAW, COMPANY DOES NOT HAVE ANY RESPONSIBILITY FOR RETAINING ANY USER INFORMATION OR CONTENT OR COMMUNICATIONS BETWEEN USERS.
Upon termination Company may deactivate or delete Customer’s account and all related information and files therein and/ or bar any further access thereto, and Customer shall have no further access to any Customer-assigned DID/telephone number (unless Port-Out of such phone number was completed prior to termination of these Supplemental Terms).
12. BACKUP AND RETENTION. Customer acknowledges that it bears sole responsibility for adequate backup of its content, including any Customer Content associated with its account. Notwithstanding the foregoing, Company (a) will make commercially reasonable efforts to make data generated by Customer’s use of the Service available for at least thirty (30) to ninety (90) days from the date such data was generated, depending on the Service, and (b) may retain any call detail records or other traffic data as required (i) by applicable law or (ii) for billing purposes. We strongly encourage Customer, where available and appropriate, to use encryption technology to protect Customer’s Content from unauthorized access and to routinely archive Customer Content. NOTWITHSTANDING THE ABOVE AND WITHOUT LIMITATION TO SECTION 9 OF THE GENERAL TERMS, COMPANY SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITIES, LOSSES (INCLUDING ANY LOSS OF DATA OR PROFITS) OR ANY OTHER CONSEQUENCES THAT CUSTOMER OR ITS END USERS MAY INCUR WITH RESPECT TO LOSS OF DATA ASSOCIATED WITH CUSTOMER’S ACCOUNT AND CUSTOMER’S OR ANY OTHER USERS’ CONTENT THEREIN.
Attachment 1 To Schedule 1
ADDITIONAL TERMS APPLICABLE TO
Avaya OneCloud Workplace and Avaya SIP Trunking Services
1. ADDITIONAL CO-OPERATION SCOPE OF USE/ FAIR USAGE TERMS . In addition to the terms of Section 2.2 of the Schedule 1, Customer’s usage of the Service for long distance calls in North America shall be limited to no more than one thousand five hundred (1,500) minutes per user per month or such other amount as may be communicated by Company from time to time. If Customer exceeds such limit for more than one month, Company will notify Customer after the first month and Company may in its sole discretion terminate Customer’s Subscription after the second month. International long distance is billed in arrears and separately from the allowable number of long distance minutes.
2. CUSTOMER PROPRIETARY NETWORK INFORMATION.
2.1 In the normal course of providing services to its users and customers, Company collects and maintains certain customer proprietary network information (“CPNI”). CPNI includes the types of telecommunications and interconnected VoIP services Customer currently purchases or subscribes to, how Customer uses those services (for example, Customer’s calling records), and billing information related to those services. Customer’s Company telephone number, name, and address do not constitute CPNI.
2.2 Company does not sell, trade, or otherwise share Customer’s CPNI with anyone outside of Company and those parties authorized to represent Company to offer Company’s services or to perform functions on Company’s behalf related to Company’s services, except as the law may require or Customer may authorize.
2.3 Federal law generally permits Company to use CPNI in its provision of telecommunications and interconnected VoIP services Customer purchases or subscribes to, including billing and collections for those services. Company is also permitted to use or disclose CPNI to offer Customer communications services of the same type that Customer already purchases from Company. Company may also use or disclose Customer CPNI for legal or regulatory reasons such as to respond to a court order, to investigate fraud, to protect Company rights or property, to protect against the unlawful use of Company services, or to protect other users.
2.4 Customer may elect to prohibit Company’s use of Customer’s CPNI to market services other than services of the same type that Customer already purchases from Company by providing Company with Customer’s “opt-out” notice within thirty (30) calendar days of Customer’s Service commencement via sending an email to firstname.lastname@example.org. If Customer fails to do so within such timeframe, Customer will be deemed to have given Company consent to use Customer’s CPNI to market services other than services of the same type that Customer already purchases from Company. Restricting Company’s use of Customer CPNI will not affect Company’s provision of any service, nor will it necessarily eliminate all types of Company marketing.
3.1 911 limitations and restrictions. notwithstanding anything to the contrary stated in these terms, the avaya onecloud workplaceAVAYA SIP TRUNKING ServiceS include a 911/E911 component. THE SERVICE 911/ E911 COMPONENT DOES NOT HAVE THE SAME FUNCTIONALITY OR AVAILABILITY AS TRADITIONAL WIRELINE 911/ E911 SERVICES and is subject to certain limitations and restrictions including those described herein. CUSTOMER AGREES TO NOTIFY ANY POTENTIAL USER OF THE SERVICE OF THE 911/ E911 LIMITATIONS DESCRIBED HEREIN. Company RECOMMENDS THAT CUSTOMER USE ALTERNATE MEANS OF ACCESSING TRADITIONAL 911/E911 SERVICES. Customer acknowledges, and is hereby on notice, that the 911/E911 portion of THE Service will not function or will not function properly for any of the reasons detailed BELOW:
Attachment 2 To Schedule 1
ADDITIONAL TERMS APPLICABLE TO
PURCHASE OF PHONES OR OTHER EQUIPMENT
1. ORDERS. Customer may purchase compatible phones from Company or other hardware or select a phone which is approved to operate on the Company platform for Avaya OneCloud Workplace. Customer will order the required Company compatible phones and any other equipment (“Equipment”) online at https://www.avaya.com (or such successor site as designated by Company). Company may make changes to Equipment or modify the drawings and specifications relating to Equipment, or substitute Equipment of later design, provided that the changes do not adversely and materially impact Equipment form, fit or function. Company will charge Customer for the Equipment upon receipt of Customer’s order for the Equipment.
2. DELIVERY AND INSTALLATION. Customer agrees that for software that Company or its Affiliates delivers electronically to its customers, the instructions posted on Company's or its Affiliates website for downloading and installation of the software may be provided in English only. Customer must install the Equipment in accordance with Company’s installation instructions available at https://www.avaya.com/ (or such successor site as designated by Company).
3. RISK OF LOSS/TITLE. Risk of loss and title to the Equipment hardware will pass to Customer when Company delivers the Equipment to the carrier for shipment. Title to software provided under these Terms will remain solely with Company and its Affiliates and licensors.
4. CHARGES. Company will charge Customer for the Equipment as set forth in Section 2, Payment, Invoicing and Taxes, of the General Terms.
5. WARRANTY AND LIMITATIONS
5.1 Warranty. Company warrants to Customer that during the applicable warranty period, the Equipment will conform to and operate in accordance with the applicable Documentation in all material respects.
5.2 Warranty Period. Unless a different period is specified in the applicable order, the warranty periods for Equipment are as follows: (a) hardware: twelve (12) months, beginning on the Delivery Date; and/or (b) software and software media: ninety (90) days, beginning on the Delivery Date.
5.3 Remedies. If Equipment is not in conformance with the warranty above and Company receives from Customer during the applicable warranty period a written notice describing in reasonable detail how the Equipment failed to be in conformance, Company at its option will: (a) repair or replace the Equipment to achieve conformance and return the Equipment to Customer; or (b) refund to Customer the applicable fees upon return of the non-conforming Equipment to Company. For software warranty claims, Company provides access to available software corrective content and Equipment support knowledge base on a self-service basis. Replacement hardware may be new, factory reconditioned, refurbished, re-manufactured or functionally equivalent and will be furnished only on an exchange basis. Returned hardware that has been replaced by Company will become Company’s property. Replacement Equipment are warranted as above for the remainder of the original applicable Equipment warranty period. THESE REMEDIES WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND WILL BE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES CUSTOMER MAY HAVE AGAINST COMPANY OR ITS AFFILIATES WITH RESPECT TO THE NONCONFORMANCE OF PRODUCTS.
5.4 Warranty Procedures. Equipment subject to a warranty claim must be returned to Company in accordance with Company’s instructions accompanied by evidence that the Equipment remain under warranty (i.e. a valid invoice, and in some cases this may also require Equipment registration with Company). Customer shall place warranty requests via submitting an e-mail to email@example.com or calling the Company support line at 1-844-303-9685.
5.5 Costs. If Equipment is returned within the applicable warranty period subject to a valid warranty claim, Company will not charge for any repair, replacement, error identification or correction, or return shipment of the non-conforming Equipment. If Company determines that the Equipment was operating in conformance with its applicable warranty, Company may charge Customer for error identification or correction efforts, repair, replacement and shipment costs at Company’s then current rates.
5.6 Exclusions and Disclaimers. The above-referenced warranty does not extend to any damages, malfunctions, or non-conformities caused by: (a) Customer’s use of Equipment in violation of the license granted under the main body of these Terms or in a manner inconsistent with the Documentation; (b) normal wear due to Equipment use, including but not limited to Equipment cosmetics and display scratches; (c) use of non-Company furnished equipment, software, or facilities with Equipment (except to the extent provided in the Documentation); (d) Customer’s failure to follow Company’s installation, operation or maintenance instructions; (e) Customer’s failure to permit Company timely access, remote or otherwise, to Equipment; or (f) failure to implement all new updates to software provided under these Terms. Warranties do not extend to Equipment that have been serviced or modified other than by Company or a third party specifically authorized by Company to provide the service or modification. In the event Customer purchases any Third Party Products from Company, Company provides Third Party Products on an ”AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, unless Company specifies otherwise. However, such Third Party Products may carry their own warranties and Company shall pass through to Customer any such warranties to the extent authorized. Exercise of such warranty shall be directly between Customer and the third party provider. EXCEPT AS REFERENCED AND LIMITED IN THIS SECTION AND TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER COMPANY, NOR ITS LICENSORS, SUPPLIERS, OR AFFILIATES MAKES ANY EXPRESS REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS WITH REGARD TO THE EQUIPMENT. COMPANY DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF EQUIPMENT OR THAT THE EQUIPMENT WILL PREVENT TOLL FRAUD. TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS AFFILIATES DISCLAIM ALL IMPLIED OR STATUTORY WARRANTIES AND CONDITIONS RELATED TO THE EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE WARRANTY REMEDIES EXPRESSLY REFERENCED HEREIN WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES RELATED TO THE EQUIPMENT.
6.1 “Business Partner” means a company authorized by Company or its Affiliates to distribute Equipment pursuant to a written agreement with Company or its Affiliates and/or purchase or license products or services and to resell them as so authorized.
6.2 “Documentation” means information published by Company or its Affiliates in varying mediums which may include product information, operating instructions and performance specifications that Company or its Affiliates generally makes available to users of its products. Documentation does not include marketing materials.
6.3 Delivery Date means the date on which Company or the Business Partner, as the case may be, delivers the Equipment to Customers, with the delivery term stated in Section 6.4 of this Attachment 2 to Schedule 1 or in the case of software features that are enabled by license files, software activations or any other electronic means, Delivery Date means the date when the Equipment or Equipment features are enabled in Company’s or its Affiliates license management systems.
6.4 “Delivery”. Unless Company provides Customer with express written confirmation of a different delivery term, all deliveries of Equipment will be made FCA [Company - named shipping point] (INCOTERMS 2010). Notwithstanding the agreed delivery term, Company may charge Customer for shipping and handling charges, which may be reflected as a separate line item on Company's invoice.
6.5 “Documentation ” means information published by Company or its Affiliates in varying mediums which may include product information, operating instructions and performance specifications that Company or its Affiliates generally makes available to users of its products. Documentation does not include marketing materials.
6.6 “Third Party Products” means any products made by a party other than Company or its Affiliates, and may include, without limitation, products ordered by Customer from third parties. However, components of Company or its Affiliates-branded products are not Third Party Products if they are both: (a) embedded in Company or its Affiliates-branded products (i.e., not recognizable as standalone items); and (b) not identified as separate items on Company’s price list, quotes, order specifications forms or Documentation.
ADD-ON SERVICES SUPPLEMENTAL TERMS
These Add-on Services Supplemental Terms apply to Your purchase and use of the Avaya OneCloud Add-on Services if and to the extent Customer orders any Add-on Services not otherwise included in the Service fee. In addition to these Add-on Services Supplemental Terms, Your use of the Service is at all times subject to the General Terms which incorporate these Add-on Services Supplemental Terms. Any terms used in these Add-on Services Supplemental Terms without defining them have the definitions given to them in the General Terms.
1. SCOPE; ORDER OF PRECEDENCE; CHANGES
1.1 Services Provided. Company will provide the implementation, onboarding, professional and/or managed services described in this paragraph (“Add-on Services”) as specified in an order, and as described in a statement of work executed by both parties (“SOW”). Add-on Services may include installation and configuration, onboarding, management, consulting and other services where Company creates and delivers customized software, customized documentation, or other work product (“Deliverable”) and/or completes other defined objectives or a defined phase of Add-on Services (“Project Phase”) on a milestone basis, time and material or other basis (“T&M Services”). T&M Services are Add-on Services provided on a time and materials basis in exchange for hourly, daily or monthly fees and expense reimbursements calculated on the basis of Company service records, if applicable as defined in the SOW. Deliverables do not include generally available hardware and software or any installation and configuration of generally available software and hardware. To the extent an SOW provides that Company will deliver generally available Company products and related services, such products and services must be purchased pursuant to a separate purchase agreement with Company.
1.2 Order of Precedence. Unless otherwise provided for in these Add-on Services Supplemental Terms, in the event of conflict among the General Terms, the Supplemental Terms, these Add-on Services Supplemental Terms, any SOW and any ancillary schedules to or documents referenced in a SOW, the order of precedence is: (i) these Add-on Services Supplemental Terms; (ii) the General Terms; (iii) the Supplemental Terms, (iv) any SOW; and (v) ancillary documents; except that in relation to limitations of liability, licensing provisions, Intellectual Property rights and Intellectual Property rights indemnification, the provisions contained in the General Terms will always take priority.
1.3 Changes. Changes in Add-on Services will be made in accordance with Company's change process defined in the SOW.
2. ACCEPTANCE PROCEDURES
2.1 T&M Services. T&M Services are deemed accepted upon performance.
2.2 SOW without Acceptance Criteria. Where the SOW does not contain specific acceptance criteria, Add-on Services are deemed accepted upon the earlier of either: (i) production use (unless Company expressly states otherwise in the Service Description), (ii) Company providing notice of completion to Customer; or (iii) Customer signature of an acceptance certificate.
2.3 SOW with Acceptance Criteria. Add-on Services or a Project Phase, as applicable, are deemed accepted upon the earlier of either: (i) production use (unless Company expressly states otherwise in the Service Description); (ii) the end of the acceptance period, if any, as set out in the SOW or order (as applicable), unless before the end of the acceptance period Company has received from Customer a rejection notice indicating in reasonable detail the material failure of the Add-on Services or a Project Phase, as applicable, to conform to the agreed acceptance criteria in the acceptance procedures (“Rejection Notice”); or (iii) Customer signature of an acceptance certificate. If Add-on Services or a Project Phase, as applicable, fails to conform to the agreed acceptance criteria and Company has received a timely Rejection Notice within 10 days, then Company will re-perform the non-conforming Add-on Services or Project Phase within 20 days, as applicable, and re-submit it for acceptance as described above. If, after resubmission, Add-on Services or Project Phase (as applicable) fail to conform to the agreed acceptance criteria in any material respect, then Customer’s remedies will be either to: (a) terminate the non-conforming Add-on Services or a Project Phase, as applicable, and return all non-conforming Deliverables for a refund of the applicable Add-on Services fees paid under the SOW; or (b) accept and pay for the Add-on Services or a Project Phase, as applicable, subject to the warranties and remedies described in Section 6 below. Customer will be deemed to have accepted the applicable Add-on Services or Project Phase in accordance with subsection (b) above if Company has not received a written termination notice within 10 days of Company’s resubmission for acceptance.
2.4 Acceptance certificate. Upon acceptance or deemed acceptance in accordance with this Section 2, if requested by Company, Customer will sign and return an acceptance certificate without delay. Acceptance certificates may be provided by Customer to Company by electronic mail, at the email address provided by Company to Customer from time to time, or other agreed means of electronic communication.
2.5 Production Use. Unless otherwise provided for in the acceptance criteria of the applicable SOW or unless stated otherwise by Company in the Service Description, production use will constitute acceptance for all purposes under these Terms.
3. PROJECT DELAYS. If performance of Add-on Services is delayed for any reason at the request of Customer (including its agents or any third parties acting on its behalf), Company may invoice and customer agrees to pay Company, for any additional costs reasonably incurred by Company as a direct result of such delay, including, if applicable, rescheduling costs. If such delay continues for more than 30 days Company may terminate the SOW, Project Phase or order, as applicable, and will be entitled to invoice, and Customer agrees to pay 100% of the fees associated with the Add-on Services performed to date, and 10% of all sums due for Add-on Services as contained in the relevant order or SOW being cancelled. Where a Customer requests a delay prior to the commencement of Add-on Services, and such delay continues for more than 30 days, Company may terminate the applicable SOW, Project Phase or order as applicable and Customer will pay for the Add-on Services performed to the date of termination plus 10% of the fees that would have been due if the SOW, project phase or order had not been cancelled.
4. TRANSFER OF RISK AND LICENSE TO DELIVERABLES
4.1 Transfer of Risk. Risk of loss will pass to Customer when the carrier receives the Deliverable for shipment to Customer or when the Deliverable arrives on Customer’s premises, whichever occurs earlier.
4.2 License to Deliverables. Subject to Customer’s payment of fees for the Add-on Services, Company grants Customer a non-exclusive, non-transferable, limited, non-sublicensable license to use Deliverables solely with the Service and solely for Customer’s internal business use.
5. INVOICING AND PAYMENT
5.1 Unless otherwise agreed in the SOW or in writing, Company will invoice Customer for Add-on Services as follows: (i) 50% of the total Add-on Services or Project Phase value, as applicable, will be invoiced on the order date or date of execution of the applicable SOW or Project Phase within a SOW and the remaining fees will be invoiced on acceptance of the project, or the Project Phase when applicable, as set forth in Section 2.
5.2 T&M Services will be invoiced monthly in arrears.
6.1 Warranty Period. The warranty period for Add-on Services and Deliverables will be 30 days beginning on the acceptance date of the Add-on Services or a Project Phase, as applicable (the “Warranty Period”).
6.2 Warranty. During the Warranty Period, Company warrants to Customer that: (i) Add-on Services will be carried out in a professional and workmanlike manner by qualified personnel; and (ii) Deliverables will conform in all material respects to the specifications contained in the SOW. However, Company does not warrant that software contained in the Deliverables will perform uninterrupted or error-free.
6.3.1 Add-on Services. To the extent that Company has not performed Add-on Services or the applicable Project Phase in accordance with the above warranty ( Non-Conformity ) and Company receives written notice from Customer within the Warranty Period that identifies the Non-Conformity in reasonable detail, Company will re-perform the applicable Add-on Services or a Project Phase. If Company determines that re-performance is not commercially reasonable: (i) Company will refund to Customer the fees for the non-conforming Add-on Services or the non-conforming Project Phase, as applicable; or (ii) in the case of T&M Services, Customer may cancel the affected T&M Services, subject to payment of fees for T&M Services already performed.
6.3.2 Deliverables. If Company receives from Customer within the Warranty Period a written notice describing in reasonable detail how the Deliverables failed to be in conformance with the above warranty, Company will, at its option, repair or replace the non-conforming Deliverables, or refund to Customer the applicable fees upon return of the non-conforming Deliverables.
6.3.3 Exclusive Remedies. THE REMEDIES SET FORTH IN THIS SECTION 6.3 WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND WILL BE IN LIEU OF ANY OTHER RIGHTS OR REMEDIES CUSTOMER MAY HAVE AGAINST AVAYA WITH RESPECT TO THE NON-CONFORMANCE OF ADD-ON SERVICES, PROJECT PHASE AND/OR DELIVERABLES.
6.4 Disclaimer. Add-on Services provided to enhance network security are not a guaranty against malicious code, deleterious routines, and other techniques and tools employed by computer “hackers” and other third parties to create security exposures. Neither Company nor its suppliers make any warranty, express or implied, that all security threats and vulnerabilities will be detected or that Add-on Services will render an end user’s network or particular network elements safe from intrusions and other security breaches.
7 TERM AND TERMINATION.
7.1 Term. The term of a SOW or order for Add-on Services will begin on the date specified in the SOW or order for Add-on Services, or, where not specified, on the date the SOW or order for Add-on Services is executed by Company. The term of the SOW or order for Add-on Services will continue until the work is completed or the SOW or order for Add-on Services is terminated earlier in accordance with this Section. In the event a SOW is required by Company to process an order, Customer must sign and return such SOW within 45 days of submitting the order. In the event Customer does not submit the SOW within such 45 day period, Company may terminate the corresponding order and Customer shall pay 10% of the Add-on Services fees that would have been due if the order had not been cancelled.
7.2 Termination. Unless otherwise provided in the SOW, either party may terminate Add-on Services or any Project Phase that has not been accepted in accordance with section 2, upon 45 days prior written notice, and Customer will pay for Add-on Services performed to the date of termination and all non-refundable or non-terminable out-of-pocket expenses Company incurred. In the event the termination is made by Customer, Customer shall also pay 10% of the fees that would have been due if the SOW, Project Phase or order had not been cancelled.
GOOGLE SUPPLEMENTAL TERMS
THIS schedule 3 to the GENERALTerms (hereinafter, “Google SupplementAL TERMS”) applies to You in addition to the terms only if You are using or accessing any Service deployed or hosted in the Google cloud (e.g., AVAYA ONECLOUD Workplace , AVAYA SIP TRUNKING AND AVAYA SPACES SERVICES ) . If You have any questions regarding whether or not the Service You are using or accessing is deployed or hosted in the Google cloud, contact COMPANY.
1. Any use of the Google Services hereunder must be solely in connection with Your use of the Service deployed or hosted in the Google cloud.
2. You agree to comply fully with (a) Google’s Acceptable Use Policy (“Google AUP”) located at https://cloud.google.com/cloud/terms/aup (or a successor link as designated by Google), (b) Google’s Service Specific terms set forth here: https://developers.google.com/cloud/terms/service-terms (or a successor link as designated by Google), and (c) the restrictions in the “Restrictions” section of the GCPLA, some of which may be further addressed in Google’s Service Specific Terms.
4. In addition to any of Your other indemnity obligations set forth in these Terms, You shall defend, indemnify and hold harmless Google, Company, their respective affiliates, and their respective officers, directors, employees, consultants, agents, and Company authorized channel partners, (individually, “Indemnified Party” and collectively, “Indemnified Parties”), against Indemnified Liabilities in any proceeding to the extent arising from or related to: (a) any failure by You (or anyone acting on Your behalf) to comply with any of the terms and conditions in this Google Supplemental Terms (including, but not limited to, any URL links set forth in this Google Supplemental Terms); and/or (b) any content, data and/or information provided, transmitted, submitted, and/or displayed by or on behalf of You via the Service in the Google cloud. “Indemnified Liabilities” means any (a) settlement amounts approved by the indemnifying party; and (b) damages, fees, and costs finally awarded against the Indemnified Party(ies) by a court of competent jurisdiction.
5. You will not purport to act on behalf of Google (as an agent, partner or otherwise) in assuming any liability on behalf of Google. You will not make any representations or warranties on behalf of Google.
6. All ownership rights, title, and Intellectual Property rights in and to any Google brand features remain with Google.
7. Notwithstanding anything to the contrary (including, but not limited to, anything in another agreement between You and Company), if there is an express conflict between this Google Supplemental Terms, the Terms, the applicable Service Description regarding the Service in the Google cloud, and any other applicable agreement You may have with Company, this Google Supplemental Terms will govern, followed next by the Terms, followed then by the Service Description regarding the Service in the Google cloud (unless the Service Description expressly states otherwise), and finally followed by any other applicable agreement you may have with Company or its Affiliates.
END OF AVAYA ONECLOUD TERMS OF SERVICE
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