Avaya Communicator

IMPORTANT — READ CAREFULLY BEFORE ACCEPTING THIS AGREEMENT. THIS TRIAL AGREEMENT FOR AVAYA COLLABORATORY ("TRIAL AGREEMENT"), THE AVAYA GLOBAL SOFTWARE LICENSE TERMS, AVAYA TERMS OF USE FOR HOSTED SERVICES, SERVICE DESCRIPTION, PRIVACY STATEMENT SET FORTH AT HTTPS://WWW.AVAYA.COM/EN/PRIVACY/SOLUTIONS/ AND OTHER APPLICABLE DOCUMENTS LOCATED AT HTTP://SUPPORT.AVAYA.COM/LICENSEINFO, ALL OF WHICH ARE INCORPORATED INTO THIS TRIAL AGREEMENT BY REFERENCE, WILL GOVERN YOUR TRIAL AND USE OF THE HOSTED SERVICES DURING THE TRIAL AND ARE BETWEEN YOU AND AVAYA INC., A DELAWARE USA CORPORATION WITH PRINCIPAL OFFICES AT 4655 GREAT AMERICA PARKWAY, SANTA CLARA, CA 95054 ("AVAYA"). ANY PURCHASE OR LICENSE OF THE PRODUCTION VERSION OF THE HOSTED SERVICES WILL BE GOVERNED BY A SEPARATE AGREEMENT.

"TRIAL CUSTOMER," "YOU", OR "YOUR" AS REFERENCED HEREIN MEANS THE LEGAL ENTITY WHICH IS ACCEPTING THIS TRIAL AGREEMENT, PLACING AN ORDER UNDER THIS TRIAL AGREEMENT, OR IS DOWNLOADING, ACCESSING OR USING THE SOFTWARE AND SERVICES (OR HAS PERMITTED SOMEBODY TO DO SO ON ITS BEHALF).

YOU REPRESENT THAT YOU ARE A CORPORATION, COMPANY OR OTHER BUSINESS ENTITY, AND NOT A CONSUMER, AND THAT YOU HAVE AUTHORIZED THE PERSON ACCEPTING THIS TRIAL AGREEMENT TO BIND YOU TO THIS TRIAL AGREEMENT. THE PERSON ACCEPTING THIS TRIAL AGREEMENT ON YOUR BEHALF REPRESENTS THAT HE OR SHE HAS READ THE TRIAL AGREEMENT DOCUMENTS IN FULL AND HAS FULL LEGAL AUTHORITY TO LEGALLY BIND YOU TO THIS TRIAL AGREEMENT. SUCH PERSON’S ONLINE ACCEPTANCE OF THIS TRIAL AGREEMENT 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 THIS TRIAL AGREEMENT, SELECT THE "I DECLINE" BUTTON AT THE END OF THIS TRIAL AGREEMENT. OTHERWISE, SELECT THE "I ACCEPT" BUTTON AT THE END OF THIS TRIAL AGREEMENT TO SIGNIFY THAT YOU AGREE TO THE TERMS AND CONDITIONS OF THIS TRIAL AGREEMENT. YOU MAY PRINT A COPY OF THIS TRIAL AGREEMENT BY SELECTING THE "PRINT" BUTTON AT THE END OF THIS AGREEMENT. THIS AGREEMENT IS EFFECTIVE AS OF THE DATE YOU EITHER SELECT THE "I ACCEPT" BUTTON OR ACCESS OR USE THE AVAYA SOFTWARE OR HOSTED SERVICES.

YOU RECOGNIZE AND AGREE THAT THE SOFTWARE AND SERVICES ARE FOR BUSINESS USE AND NOT FOR CONSUMERS, AND YOU REPRESENT AND WARRANT THAT YOU WILL USE THE SOFTWARE AND SERVICES FOR BUSINESS PURPOSES ONLY AND NOT FOR PERSONAL, FAMILY, HOUSEHOLD, OR ANY OTHER CONSUMER PURPOSE.

Avaya and its licensors reserve and retain all right, title, and interest in the Hosted Services and any and all software, products and services that are included in the Hosted Services, including, but not limited to, any and all modifications and derivative works made thereto. Avaya hereby grants You a limited, non-exclusive, non-transferable, royalty-free right to access and use the Hosted Services during the Trial Period (defined below) solely for Your internal evaluation purposes only and only for use in a non-production environment. You shall not reverse engineer, decompile, sublicense, lease, assign, copy, modify, merge or transfer the Hosted Services or any Avaya software or code.

Trial Customer may internally trial the non-production version of the Hosted Services from the United States only for a period of up to 90 days from the date when Avaya enables access to the Hosted Services or otherwise makes the Hosted Services or its software available to You, unless that time period is modified in writing by Avaya at its discretion ("Trial Period"). This trial is for Your internal review only, and You may not offer the Hosted Services to any End User or other party during the Trial Period. Upon expiration of the 90 day trial period or any extension thereof, You shall cease use of the Hosted Services, return all software to Avaya, and irretrievably delete all software from your systems. Upon request, a duly authorized representative of Trial Customer will certify such destruction to Avaya. Avaya may share such certification with applicable suppliers whose software is part of the Hosted Services.

Avaya provides the Hosted Services "AS IS" for non-production use only without any warranties, express or implied, and without any promise to enter into a definitive agreement with You for the purchase or license of the Hosted Services. Use of the Hosted Services is at Your own risk, and You understand and agree that if the Hosted Services do not operate as expected, or if Avaya so chooses, Avaya reserves the right to end the Hosted Services trial without liability to Avaya. Either party, without any liability to the other, may terminate this trial early.

AVAYA DISCLAIMS ALL EXPRESS, STATUTORY, IMPLIED OR OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

AVAYA AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH, ARISING OUT OF OR RELATING TO THIS TRIAL AGREEMENT OR USE OF HOSTED SERVICES, OR FOR THE LOSS OR CORRUPTION OF DATA, INFORMATION OF ANY KIND, BUSINESS, PROFITS, OR OTHER COMMERCIAL LOSS, HOWEVER CAUSED, AND WHETHER OR NOT AVAYA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

IN NO EVENT SHALL AVAYA'S OR ITS SUPPLIER’S TOTAL LIABILITY TO TRIAL CUSTOMER IN CONNECTION WITH, ARISING OUT OF OR RELATING TO THIS TRIAL AGREEMENT OR THE HOSTED SERVICES EXCEED FIVE HUNDRED DOLLARS ($500). THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY PROVIDED IN THIS TRIAL AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

FOR PURPOSES OF THIS TRIAL: (i) THE HOSTED SERVICES ARE NOT A TELECOMMUNICATIONS SERVICE; (ii) THE HOSTED SERVICES MAY NOT BE CONNECTED TO THE PUBLIC TELEPHONE NETWORK; (iii) THE TRIAL CUSTOMER MAY NOT USE CONFIDENTIAL, PERSONAL, PERSONALLY IDENTIFIABLE, PRIVATE, OR PERSONAL HEALTH INFORMATION WHEN USING THE HOSTED SERVICES; (iv) THE HOSTED SERVICES MAY NOT BE USED FOR ANY HIGH RISK ACTIVITIES; AND, (v) TRIAL CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT THE HOSTED SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS OR COMMUNICATIONS OF ANY NATURE TO ANY TYPE OF EMERGENCY SERVICES OF ANY KIND, INCLUDING 911 AND E911 SERVICE OR SUCH SIMILAR SERVICES WHICH MAY BE LIMITED OR UNAVAILABLE. AVAYA IS NOT LIABLE IN ANY MANNER FOR TRIAL CUSTOMER’S USE OF THE HOSTED SERVICES IN VIOLATION OF THIS PARAGRAPH.

You shall observe all applicable laws and regulations when accessing and/or using the Hosted Services or any content of the Hosted Services, including, but not limited to, any export and import laws and/or regulations.

Because Avaya provides the Hosted Services to You as a trial, Your feedback will be essential to Avaya. Avaya will contact You periodically for Your feedback and You will provide feedback to Avaya. Any feedback You provide will become the property of Avaya, without any payment or other conditions owed to You. By signing below, You hereby assign to Avaya all right, title, and interest in and to such feedback. Avaya cannot promise to implement any of Your feedback in any future releases of the service.

Avaya and its suppliers reserve and retain all right, title, and interest in the Avaya Hosted Services, trial or otherwise. You must maintain the confidentiality of any information Avaya provides regarding the Hosted Services and any conversations Avaya has or other information Avaya exchanges about the Hosted Services, including Your feedback and comments ("Confidential Information"). You may not disclose to any third party, or provide or enable access to the Hosted Services or any other Confidential Information, by any third party. By signing below, You agree to take all reasonable precautions to protect Avaya’s Confidential Information, and Avaya will also take all reasonable precautions to protect any confidential information You share with us in connection with this Hosted Services, which, at the time of disclosure, is designated as confidential.

YOU SHALL DEFEND, HOLD HARMLESS, AND INDEMNIFY AVAYA AND ITS AFFILATES FROM AND AGAINST ANY DAMAGES AND LOSSES, INCLUDING BUT NOT LIMITED TO COURT COSTS AND ATTORNEYS’ FEES, IN CONNECTION WITH ANY THIRD PARTY CLAIMS OR ACTIONS BROUGHT AGAINST AVAYA AND/OR ITS AFFILIATES AS A RESULT OF OR RELATED TO YOUR USE OF THE HOSTED SERVICES OR ANY FAILURE BY YOU TO COMPLY WITH THIS TRIAL AGREEMENT.

This Trial Agreement constitute the entire understanding between You and Avaya with respect to the subject matter herein and will supersede all previous and contemporaneous communications, representations or understandings, either oral or written, relating to that subject matter. There are no third party beneficiaries to this Trial Agreement. This Trial Agreement will be governed by and construed in accordance with the laws of the State of California. If there are any disputes arising under or related to this Trial Agreement, You agree to submit disputes to the jurisdiction of, and venue in, the California state and federal (Northern District of California) courts. The parties confirm that it is their wish that this Trial Agreement, 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. This Trial Agreement may be executed using commercially accepted electronic signature services. In the event of a conflict between the terms of this Trial Agreement and the incorporated documents, this Trial Agreement shall take precedence.

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