Updated July 2019
1.1. Avaya has the right, but not the duty, to investigate and take any action it deems appropriate, including but not limited to termination or suspension of Your access to the Website, without notice or liability, for any conduct that Avaya, in its sole discretion, believes is in violation of the TOU or any applicable law or regulation or is harmful to the interests of another user, a third-party provider, a service provider or Avaya. Avaya makes no representation that the information contained in the Website is appropriate or available for use throughout the world. It is forbidden to access the Website from territories where the legislation provides that the content or use of the Website is illegal. You choose to use the Website at Your own risk and on Your own initiative, and it is Your responsibility to ensure that You conform to all applicable local laws and regulations.
1.2. Restrictions. Without limiting the generality of the foregoing, You acknowledge that Avaya expressly prohibits and You agree not to: (a) use the Website (including by posting Third Party Content, as defined in section 3.2), in a manner that is actually or potentially false, inaccurate, misleading, libelous, defamatory, threatening, harmful, abusive, harassing, discriminatory, hateful, vulgar, sexually-oriented, indecent, obscene, otherwise objectionable, in violation of any third party intellectual property rights (including, without limitation, the infringement of any copyright, trademark, trade secret or other intellectual property right of others) or privacy rights of any person, or is otherwise unlawful under any applicable law or regulation; (b) misrepresent an affiliation with, or otherwise impersonate, any person or organization; (c) download a file or software or include on the Website any content, software, files or links that You know, or have reason to believe, cannot be distributed legally over the Website; (d) harass, stalk or otherwise subject any other user of the Website to unwanted and/or inappropriate contact; (e) post, transmit or make “spam,” unsolicited messages or communications, including mail, e-mail, phone calls, texts or faxes, and/or advertise or telemarket any products or services either by directly posting on the Website or by making unsolicited contact with any user via email, telephone, text, postal mail or any other method of communication; (f) advocate illegal activity or discuss an intent to commit an illegal act; (g) take any action to circumvent or attempt to circumvent the security and access control measures of the Website; (h) make any changes, additions and/or deletions to any of the Third Party Content posted by any user without the express written authorization of such other user; (i) include any misleading, irrelevant and/or hidden keywords in any Third Party Content posted by You; (j) frame or link to the Website any of the content or information available from the Website unless Avaya expressly consents to such linking and/or framing; (k) intentionally expose the Website to any computer virus, corrupted data, or any other program or code intended to disrupt or disable operation of the Website; (l) use any robot, spider or other program or device to retrieve or index any portion of the Website; (m) harvest or otherwise collect information about other users for any purpose other than use of the Website as expressly permitted herein; (n) distribute, reproduce, duplicate, copy, transfer, modify, license, sell, trade, or resell any content, unless Avaya expressly agrees otherwise in writing; (o) use any trademark, service mark, trade name, or logo of any company or organization in conjunction with the Website in a manner that is likely or intended to cause confusion about the owner or authorized user of such mark, name, or logo; or (p) engage in any other conduct that (1) restricts, prevents or inhibits anyone’s use or enjoyment of the Website, or which, as determined by Avaya, may harm Avaya or users of the Website or expose them to liability; (2) interferes with, disrupts, disables, damages, or overburdens the Website or associated servers, networks, or software; or (3) damages any Avaya or third party property, information or software, including, without limitation, Avaya’s confidential information and Third Party Content.
2. Intellectual Property.
2.1. Copyright. Avaya, its suppliers or the original creator of the material own all copyrights to material on the Website and all other intellectual property rights related to the Website. To the extent that Avaya has the right to do so without compensation to third parties, and except for material specifically provided under other terms, Avaya grants You permission to copy materials on the Website solely for Your non-commercial use in support of Avaya products. You agree that any copies of material shall retain all copyright and other proprietary notices in the same form and manner as the original. You may not, without Avaya's permission, "mirror" any material contained on the Website or any other server. All rights not expressly granted are reserved by Avaya and, except as specified above, nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any license or right under any trademark, patent, copyright, mask work protection right or any other Intellectual Property right of Avaya or any third party. “Intellectual Property ” means any and all: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and maskworks, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, algorithms, designs and other industrial property rights, (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing). You acknowledge and agree that You are expressly prohibited from using any materials found on this Website to the detriment of Avaya in any type of patent infringement proceeding. Your failure to comply with this prohibition constitutes copyright infringement of the materials at issue. Each instance of noncompliance with this prohibition constitutes a separate instance of infringement, and subjects You to a payment obligation in the amount of $150,000 USD per infringement, as liquidated damages and not as a penalty.
2.2. Trademarks. Avaya and the Avaya logo are trademarks or service marks, registered or not, of Avaya. Nothing in the Website may be interpreted to grant to You, directly or indirectly, the use of a trademark or service mark reproduced on the Website, whether belonging to Avaya or third party suppliers, without the prior written permission of Avaya. All other trademarks are the property of their respective owners.
2.3. It is Avaya’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 and at Avaya’s sole discretion, to terminate the accounts or subscription of repeat infringers. If You would like to send Avaya an alleged copyright or trademark infringement notice as it pertains to the Website, go to the following link -- http://support.avaya.com/AvayaCopyrightAgent (or such successor site as designated by Avaya) and follow the instructions on how to get in touch with Avaya (if You have trouble accessing this link, then You may contact Avaya for further information at +1 (908) 953-2044).
3. Communications and Information Provided to Avaya.
3.1. Avaya does not want You to, and You should not, send or post any confidential or proprietary information to Avaya via the Website (including via submission of an email, chat message, filling out a service request or any other method of submission or posting). Unless otherwise agreed to by Avaya in writing, any submission or posting of Third Party Content or the like by You to Avaya or the Website shall be deemed to be non-proprietary and non-confidential, and You otherwise grant Avaya an unrestricted, nonexclusive, worldwide, royalty-free, irrevocable, transferable license to (in any media now known or not currently known or invented) under any and all of Your Intellectual Property rights to record, link to, use, copy, duplicate, reproduce, display, perform, modify, transmit, distribute, make, have made, sell, and/or otherwise exploit any and all such Third Party Content or derivative works thereof and to sublicense those rights through multiple tiers of sublicensees. Notwithstanding anything herein to the contrary, You hereby assign to Avaya all right, title and interest worldwide in all Intellectual Property rights in and to any new feature improvement or idea that You may suggest, post or submit to Avaya relating to Avaya or third party products, services or Websites (collectively, “Feedback”), and You acknowledge and agree that Avaya shall be free to use any ideas, concepts, know-how or techniques contained in such Feedback for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products, services or Websites incorporating such information.
3.2. Third Party Content. "Third Party Content" means, collectively: (a) content and information, including but not limited to Third Party Materials (as defined in section 5), licensed by Avaya from third parties for display, access, use or download via the Website, and (b) questions, comments, suggestions, content, information, material, software, including in partial or complete form or in source code or binary object code format, or the like posted, uploaded or submitted to the Website by You or other third party users of the Website. Some Third Party Content may be licensed by Avaya for use on the Website. Third Party Content shall be subject to the license set forth above unless otherwise agreed to in writing by Avaya or such Third Party Content indicates that it is subject to other terms, in which case such other terms shall apply. You acknowledge that You are solely responsible for the Third Party Content You post to the Website and that You, and not Avaya, will have full responsibility for the Third Party Content You post, including its legality, reliability, appropriateness, originality and copyright. By posting any Third Party Content to the Website that contains images, photographs, pictures or that are otherwise graphical in whole or in part ("Images"), You warrant and represent that (i) You are the copyright owner of such Images, or that the copyright owner of such Images has granted You permission to use such Images or any content and/or images contained in such Images consistent with the manner and purpose of Your use and as otherwise permitted by the TOU, (ii) You have the rights necessary to grant the licenses and sublicenses described in the TOU, and (iii) that each person depicted in such Images, if any, has provided consent to the use of the Images as set forth in the TOU, including, by way of example, and not as a limitation, the distribution, public display and reproduction of such Images. No compensation will be paid with respect to the use of Your Images. Avaya reserves the right to pre-screen, refuse, flag, filter, or remove any Third Party Content posted on the Website, including any of Your Third Party Content, which Avaya, in its sole discretion, deems inconsistent with the TOU, including any Third Party Content Avaya has been notified or has reason to believe constitutes intellectual property infringement. Notwithstanding any other provision in the TOU, Avaya may take any such action(s) without notice or liability to You or any other party, although Avaya will have no obligation or responsibility to take any such action or review Third Party Content that is posted on the Website. Accordingly, Avaya assumes no liability for any action or inaction regarding transmissions, communications, or content provided by You or any third parties. AVAYA DISCLAIMS ALL WARRANTIES WITH REGARD TO THIRD PARTY CONTENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
3.3. Information provided by You via the Website, including by written or oral communications or other electronic means, may be recorded for quality assurance, diagnostic and training purposes. By submitting information using the Website, You consent to such recordation and usage as described in Section 3.1, above.
3.4. Any personal data provided by You will be treated as set forth in Section 12 below.
6. Product or Services Availability. The availability of the products or services described on the Website, and the product or service descriptions, may vary from country to country. You should consult the applicable Avaya affiliate or authorized distributor for availability of specific products or services in Your area.
7. Export of Information. The United States Export Controls laws prohibit the export of certain technical data and software to certain territories. No content from the Website may be downloaded or otherwise exported in violation of United States law or any other local law from where You may be accessing the Website. You agree to comply with all United States and foreign Federal, State and local laws and regulations applicable to the use of the Website. Users residing in countries on the United States Office of Foreign Assets Control sanction list, currently including Cuba, Iran, North Korea, Sudan and Syria, or who are a foreign person or entity blocked or denied by the United States government may not post or access information or content available through the Website. You warrant and represent that You are not residing in a country on the United States Office of Foreign Assets Control sanction list or are a foreign person or entity blocked or denied by the United States government when posting or accessing information or content available through the Website.
8. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AVAYA, ITS RELATED COMPANIES, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARTNERS, LICENSORS OR SUPPLIERS MAY NOT, UNDER ANY CIRCUMSTANCES BE HELD LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF (OR THE INABILITY TO USE) THE WEBSITE OR ANY MATERIAL ON THE WEBSITE, INCLUDING BUT NOT LIMITED TO THIRD PARTY CONTENT. THIS LIMITATION OF LIABILITY INCLUDES, BUT IS NOT LIMITED TO, WHETHER AS A RESULT OF DIRECT OR INDIRECT DAMAGES, THE LOSS OR CORRUPTION OF DATA, INFORMATION OF ANY KIND, BUSINESS OR PROFIT OR ANY OTHER COMMERCIAL LOSS, EVEN IF AVAYA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR PERSONAL INJURY CLAIMS AND WILLFUL MISCONDUCT, IN NO EVENT SHALL AVAYA'S TOTAL LIABILITY TO YOU IN CONNECTION WITH, ARISING OUT OF OR RELATING TO THE TOU OR THE WEBSITE EXCEED FIVE HUNDRED DOLLARS ($500). THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY PROVIDED IN THE TOU IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THIS SECTION WILL ALSO APPLY TO ANY LIABILITY OF AVAYA’S RELATED COMPANIES, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARTNERS, LICENSORS AND SUPPLIERS.
9. Assignment. The TOU may not be assigned or transferred by You without the prior written consent of Avaya. Avaya may assign the TOU to any affiliate or third party in part or in whole.
10.1. Governing Law. The TOU and any dispute, claim or controversy arising out of or relating to the TOU ("Dispute"), including without limitation those relating to the formation, interpretation, breach or termination of the TOU, 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. If any provision of the TOU is determined to be unenforceable or invalid, the TOU 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 to assert any rights under the TOU, including, but not limited to, the right to terminate in the event of breach or default, will not be deemed to constitute a waiver of the right to enforce each and every provision of the TOU in accordance with their terms. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR ANY DISPUTE BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS TOU AND/OR THE USE OF THE WEBSITE.
10.2. Dispute Resolution. Any Dispute will be resolved in accordance with the provisions of this Section 10. The disputing party shall give the other party written notice of the Dispute. The parties will attempt in good faith to resolve each Dispute within 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.
10.3. Choice of Forum for Disputes. If a Dispute by one party against the other cannot be settled under the procedures and within the timeframe set forth in Section 10.2, then either party may bring an action or proceeding solely in either the federal court in the Northern District of California or in state court in Santa Clara County California. Each party to the TOU 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 the TOU.
10.4. Injunctive Relief. Nothing in this section will be construed to preclude Avaya 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 at any time. In addition and notwithstanding the foregoing, Avaya shall be entitled to take any necessary legal action at any time, including without limitation seeking immediate injunctive relief or other equitable relief from a court of competent jurisdiction, in order to protect Avaya's and it’s supplier’s, partner’s, or licensor’s intellectual property and confidential or proprietary information (including but not limited to trade secrets), and no bond or security of any kind will be required with respect to any such injunction or order.
10.5. Actions on Disputes between the parties with respect to the TOU must be brought in accordance with this Section 10 within two years after the cause of action arises.
11. Registration and Access to Password(s) Protected/Secure Areas.
11.1. Prior to gaining access to certain services on the Website, Avaya may require You to provide certain registration details or other information, including but not limited to email addresses, and set up a user name and Password(s) ("Password(s)") as set forth in the account registration procedures posted on the Website. It is a condition of Your use of the Website that all the information You provide will be correct, current and complete and that You promptly update Your registration information as needed. Any user names and Password(s) used for the Website are for individual use only. You may not use another user’s or customer’s account. You agree to comply with the procedures specified by Avaya from time to time regarding obtaining and updating Password(s) for the Website. You agree to assume sole responsibility for all activities that occur under Your account and for the security of Password(s) issued to You. Password(s) are subject to cancellation or suspension by Avaya at any time, including upon the misuse of the account or breach of the TOU. You agree to ensure that You will use Your best efforts to prevent any third party from obtaining Your Password(s), and You shall inform Avaya immediately in writing of any actual or potential unauthorized use of, breach or access to a user name, Password(s), account or to the Website.
11.2. Access to and use of Password(s) protected and/or secure areas of the Website is restricted to authorized users only. You are prohibited from taking any action to circumvent or attempt to circumvent the security and access control measures of the Website. Such prohibited conduct includes, without limitation, any efforts to: (a) log in to an account with a Password(s) not assigned to You; (b) access personal data not intended for You; (c) test the security measures on the Website and/or attempt to identify system vulnerabilities; (d) impersonate any other user of the Website or forge any of the header information in any posting or tamper with the TCP/IP packet header; (e) modify, reverse engineer, disassemble, decompile or otherwise attempt or allow others to attempt to discover the underlying computer code for the Website; or (f) overwhelm or disable the Website or interfere with the access and use of the Website by any other user. If You become involved in any violation of system or Website security, Avaya reserves the right to release Your details to system administrators or third parties at other sites in order to assist them in resolving security incidents.
11.3. Unauthorized individuals attempting to access Password(s) protected and/or secure areas of the Website may be subject to prosecution. Avaya reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Avaya to disclose the identity of anyone attempting to access or accessing without authorization Password(s) protected and/or secure areas of the Website, posting any Third Party Content or other messages or content, or publishing or otherwise making available any materials that are believed to violate the TOU. BY ACCEPTING THIS AGREEMENT YOU WAIVE AND HOLD HARMLESS AVAYA 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 AVAYA OR LAW ENFORCEMENT AUTHORITIES.
12. Data Privacy.
When You access or use the Website, Avaya might process certain data about You, Your network and Your device (e.g., email address, phone - extension number, device IDs, IP addresses, location, etc.). Avaya will keep Your data confidential and will only use Your data for the purpose(s) identified in the notice to you prior to personal data collection or, otherwise, as permitted by applicable law. For more information on data subject rights or in case of any questions related to Avaya processing personal data, please refer to the Documentation, the website privacy statement and Avaya’s global privacy website available at https://www.avaya.com/en/privacy/website/. The terms included therein apply to this website (www.avaya.com).13. Tools. Avaya support tools, including, without limitation, SLA MON, SAL, ADS, SIG and OIS (collectively, the “Tools”) are made available on a revocable, limited license basis by Avaya to customers purchasing certain of Avaya‘s support offers.
You are advised that the Tools may contain diagnostic capabilities that allow Avaya, authorized Avaya partners, and authorized customer administrators to capture packets, run diagnostics, capture key strokes and information from endpoints including contact lists, and remotely control and monitor end-user devices. You are responsible for enabling these diagnostic capabilities, for ensuring Your users are aware of activities or potential activities and for compliance with any legal requirements with respect to use of the Tools and diagnostic capabilities on its network, including, without limitation, compliance with laws regarding notifications regarding capture of personal data, call recording and wiretapping.
14. Software License Terms. Except for Third Party Material(s) (which is covered by Section 5), any software You download from the Website (including Tools) shall be licensed pursuant to the (1) original agreement under which the applicable software was licensed to You by Avaya, (2) terms and conditions made available to You when You download or install the software, or (3) if no such license exists, then the applicable Avaya end user license agreement as posted at http://support.avaya.com/LicenseInfo (or a successor site designated by Avaya) and incorporated herein by reference. Avaya in its sole discretion may from time to time post a successor version of the applicable Avaya End User License, which will then automatically replace the previously applicable Avaya End User License with respect to licenses granted as from the date of posting.
15. Forward-Looking Statements. Some of the information on this Website may contain forward-looking statements. These statements are only predictions based on our current expectations and projections about future events. Because these forward-looking statements involve risks and uncertainties, there are important factors that could cause Avaya's actual results, level of activity, performance or achievements to differ materially from the results, level of activity, performance or achievements expressed or implied by the forward-looking statements. In this regard, You should specifically consider the numerous risks outlined in our SEC filings.
16.1. WHILE AVAYA ATTEMPTS TO PROVIDE ACCURATE INFORMATION ON THE WEBSITE, IT ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OF THE INFORMATION. AVAYA MAY CHANGE THE INFORMATION ON THE WEBSITE, OR THE PRODUCTS MENTIONED, AT ANY TIME WITHOUT NOTICE. MATERIAL, INCLUDING, BUT NOT LIMITED TO, SOFTWARE, TOOLS AND THIRD PARTY CONTENT, ON THE WEBSITE AND THE WEBSITE ITSELF IS PROVIDED "AS IS" AND AVAYA DOES NOT PROVIDE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. AVAYA SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE WEBSITE OR ANY CONTENT OR MATERIAL ON THE WEBSITE.
16.2. AVAYA MAKES NO WARRANTY THAT (i) THE WEBSITE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE; AND (iv) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
16.3. ANY MATERIAL, TOOLS OR SOFTWARE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR DEVICES OR LOSS OR CORRUPTION OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL OR SOFTWARE.
16.4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AVAYA OR THROUGH OR FROM THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOU.
16.5. Any third party content uploaded, transmitted, expressed, posted or submitted to the website is solely the opinions and responsibility of the person or entity submitting the third party content and does not necessarily reflect the opinions of Avaya. Avaya, its suppliers, and licensors will not be liable in any way for such third party content and Avaya cannot guarantee the identity of any other users with whom You may interact in the course of using the website or the authenticity of the data or information provided by other users.
17. Indemnification. You agree to defend, indemnify and hold harmless Avaya and its affiliates, representatives, partners, licensors, suppliers, agents, directors and employees from and against any and all liabilities, claims, losses, damages, costs and expenses, including attorneys’ fees, whether direct or consequential (including without limitation any economic loss or other loss of profits, business or goodwill), that arise out of or in connection with (a) Your use in any way of the Website, including without limitation in a manner that is not authorize by the TOU or applicable law; (b) any transaction related to the acquisition or downloading of Third Party Content; or (c) a breach of the TOU, including, but not limited to, of any breach of Section 12.2 or infringement or violation of any intellectual property or other right of any person or entity in connection with your use of the Website.
18. Agreement in English. The parties confirm that it is their wish that the TOU, as well as all other documents relating hereto, including all notices, have been and shall be drawn up in the English language 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.
© 2016 Avaya Inc. All Rights Reserved. All trademarks identified by ®, TM, or SM are registered marks, trademarks, and service marks, respectively, of Avaya Inc. All other trademarks are the property of their respective owners. Avaya and other parties may also have trademark rights in other terms used herein.
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