1. Access. Avaya has the right, but not the duty, to terminate or suspend Your access to the Website, without notice, for any conduct that Avaya, in its sole discretion, believes is in violation of any applicable law 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 on Your own initiative, and it is Your responsibility to ensure that You conform to all applicable local laws.
2. 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. 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.
3. Trademarks. Avaya and the Avaya logo are trademarks or service marks, registered or not, of Avaya. Nothing in the Website may be interpreted so as 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 written permission of Avaya. All other trademarks are the property of their respective owners.
4. Communications and Information Provided to Avaya.
4.1. Avaya does not want You to, and You should not, send 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). Any submission by You to Avaya, including but not limited to questions, comments, suggestions or the like shall be deemed to be non-confidential and shall become the property of Avaya to the extent permitted by applicable law. Furthermore, by Your submission, You agree that all submissions are deemed non-confidential and non-proprietary and You grant Avaya an unrestricted, irrevocable license to record, use, reproduce, display, perform, modify, transmit, and distribute such information. Avaya shall be free to use any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever, including but not limited to developing, manufacturing, and marketing products incorporating such information.
4.2. Information provided by you via the Website, including 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 4.1, above.
4.3 Any Personal Data provided by you will be treated as set forth in Section 12 below.
5. Links. THE LINKS ON THE WEBSITE WILL LET YOU LEAVE AVAYA'S SITE. THE LINKED SITES ARE NOT UNDER THE CONTROL OF AVAYA AND AVAYA IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY LINKED SITE OR ANY LINK CONTAINED IN A LINKED SITE, OR ANY CHANGES OR UPDATES TO SUCH SITES. AVAYA IS NOT RESPONSIBLE FOR WEBCASTING OR ANY OTHER FORM OF TRANSMISSION RECEIVED FROM ANY LINKED SITE. AVAYA IS PROVIDING THESE LINKS TO YOU ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK DOES NOT IMPLY ENDORSEMENT BY AVAYA OF THE SITE.
6. Product Availability. The availability of the products described on the Website, and the product descriptions, may vary from country to country. You should consult the applicable Avaya affiliate or authorized distributor for availability of specific products 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.
8. Limitation of Liability. AVAYA, ITS RELATED COMPANIES, DIRECTORS, EMPLOYEES, REPRESENTATIVES OR AGENTS MAY NOT, UNDER ANY CIRCUMSTANCES BE HELD LIABLE FOR ANY DIRECT, 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. THIS INCLUDES, BUT IS NOT LIMITED TO, THE LOSS OF DATA OR LOSS OF PROFIT, EVEN IF AVAYA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF ALL OR PART OF THIS LIMITATION OF LIABILITY IS FOUND UNENFORCEABLE FOR ANY REASON, THEN AVAYA'S MAXIMUM AGGREGATE LIABILITY UNDER SUCH CIRCUMSTANCES FOR LIABILITY THAT WOULD OTHERWISE HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
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. Any controversy or claim arising out of or in connection with the TOU, its enforcement or interpretation, will be finally resolved solely in accordance with the terms of this Section 10. THE PARTIES UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT AND/OR THE USE OF THE WEBSITE.
10.2. Any claim, dispute or controversy (collectively a “Claim”) arising out of or relating to the TOU, including without limitation the formation, interpretation, breach or termination hereof, or any issue regarding whether a Claim is subject to arbitration hereunder, that cannot be settled by good faith negotiation between the parties within a reasonable period of time, will be conclusively determined by a final and binding arbitration proceeding to take place in New York City, New York. Such proceeding will be conducted in English and administered by JAMS pursuant to the JAMS Comprehensive Arbitration Rules and Procedures then in effect, or in the event one of the parties is located outside of the United States, pursuant to the JAMS International Arbitration Rules then in effect, before a panel of one arbitrator chosen in accordance with such rules. The arbitrator will not award punitive or exemplary damages, and will not have the authority to limit, expand or otherwise modify the TOU. The ruling by the arbitrator 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 each party will bear their own attorneys' fees and other costs associated with the arbitration. The parties agree that this arbitration provision 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. In addition and notwithstanding the foregoing, Avaya shall be entitled to take any necessary legal action, including without limitation seeking immediate injunctive relief from a court of competent jurisdiction, in order to protect Avaya’s intellectual property and its confidential or proprietary information (including but not limited to trade secrets).
10.3. Actions on Claims 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.
10.4. Governing Law. The TOU are governed by New York law, excluding choice 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.
11. Access to Password Protected/Secure Areas. Access to and use of password protected and/or secure areas of the Website is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the Website may be subject to prosecution.
12. Data Privacy.
12.1. You and Avaya agree that they shall comply in all respects with all applicable data protection laws and regulations (or any legislation or regulations amending or replacing the same) (together, the "Data Protection Laws").
12.2. You shall in connection with these TOU (i) not do or permit anything to be done through an act or omission which might jeopardise or contravene Avaya's liability under Data Protection Laws; and (ii) enter into such agreements as Avaya shall reasonably require in relation to the cross border migration of personal data.
12.3. You shall indemnify and keep Avaya fully indemnified against any and all liability, loss, damage, costs (including legal costs) and expenses which Avaya, or any Avaya affiliate may incur or suffer whether direct or consequential (including without limitation any economic loss or other loss of profits, business or goodwill) as a result of any breach of Section 12.2.
12.4. WHEN YOU SUBMIT PERSONAL DATA TO AVAYA ON THE WEBSITE
OR WHEN REGISTERING FOR THE WEBSITE, AVAYA MAY TRANSFER AND/OR RETAIN THE PERSONAL DATA YOU SUBMITTED TO A COUNTRY OUTSIDE THE COUNTRY IN WHICH YOU ARE LOCATED OR FROM WHERE SUCH PERSONAL DATA WAS COLLECTED, WHICH MAY NOT HAVE THE SAME OR EQUIVALENT DATA PRIVACY PROTECTIONS. IF YOU DO NOT APPROVE OF SUCH TRANSFER AND/OR RETENTION, DO NOT SUBMIT PERSONAL DATA TO AVAYA.
12.5. BY AGREEING TO THESE TOU, YOU ARE AGREEING THAT AVAYA MAY SHARE YOUR PERSONAL DATA AND OTHER INFORMATION (WITH THE EXCEPTION OF ACCOUNT, CREDIT CARD AND ORDERING INFORMATION) WITH THIRD PARTIES IN CASES WHERE AVAYA BELIEVES YOUR BUSINESS INTERESTS WILL BE SERVED. IF YOU DO NOT APPROVE OF AVAYA SHARING YOUR PERSONAL DATA AND OTHER INFORMATION IN SUCH A FASHION, DO NOT SUBMIT PERSONAL DATA OR OTHER INFORMATION TO AVAYA.
12.6 Please click on the "Privacy Statement" link at the bottom of each Website page for disclosures relating to the collection and use of Your personal information.
13. Tools. Avaya support tools, including, without limitation, SLA MON, SAL, ADS, SIG and OIS (collectively, the “Tools”) are made available on a revocable 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. Any software You download from the Website (including Tools) is governed by the applicable Avaya End User License 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 SOFTWARE AND TOOLS, 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 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 LOSS 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.
TRIAL AGREEMENT FOR AVAYA COLLABORATORY
v. 1.0 January 27, 2018
"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 PERSONâS 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 SUPPLIERâS 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 CUSTOMERâS 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 Avayaâs 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 ATTORNEYSâ 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 preÌsentes confirment leur volonteÌ que cette convention, de meÌme 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.