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Avaya Cloud Terms of Service
Avaya OneCloud
TERMS OF SERVICE v1.2
Last Modified: July, 2020
IMPORTANT – READ CAREFULLY BEFORE ACCEPTING THESE TERMS.
THESE TERMS ARE BETWEEN THE CORPORATION, COMPANY OR OTHER BUSINESS ENTITY ACCEPTING THESE TERMS (“CUSTOMER”) AND: (I) 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 IF CUSTOMER JURISDICTION IS IN THE UNITED STATES; OR (II) AVAYA CLOUD CANADA, INC., WITH PRINCIPAL OFFICES AT 30 WEST BEAVER CREEK ROAD, SUITE 101, RICHMOND HILL, ONTARIO L4B3K1 IF CUSTOMER JURISDICTION IS IN CANADA OR (III) THE APPROPRIATE AVAYA AFFILIATE (“AVAYA”).
THESE GENERAL TERMS (THE “GENERAL TERMS”) ARE CURRENTLY POSTED IN HTTPS://WWW.AVAYA.COM/EN/TERMSOFSERVICE/ (OR SUCH SUCCESSOR SITE AS DESIGNATED BY AVAYA) AND CONTAIN TERMS AND CONDITIONS THAT GOVERN CUSTOMER’S USE AND ORDERING OF AVAYA ONECLOUD SERVICES AND RELATED EQUIPMENT DETAILED ON THE MATRIX (INDIVIDUALLY AND COLLECTIVELY, THE “SERVICE(S)”). IN ADDITION TO THESE GENERAL TERMS, EACH OF AVAYA’S INDIVIDUAL SERVICES MAY BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS INCLUDING USE POLICIES (IN ACCORDANCE WITH SECTION 1.9) THAT ARE SPECIFIC TO THE PRODUCTS OR SERVICES ONLY AND THE APPLICABLE SERVICE DESCRIPTION (INDIVIDUALLY AND COLLECTIVELY, THE “SUPPLEMENTAL TERMS”). WHEN CUSTOMER ACCESSES OR USES THESE INDIVIDUAL PRODUCTS OR SERVICES, THE APPLICABLE SUPPLEMENTAL TERMS WILL APPLY TO CUSTOMER, AND WILL AUTOMATICALLY BE INCORPORATED INTO THESE GENERAL TERMS BY REFERENCE.
CUSTOMER REPRESENTS THAT IT IS A CORPORATION, COMPANY OR OTHER BUSINESS ENTITY, AND NOT AN INDIVIDUAL CONSUMER, THAT THE SERVICES ARE FOR BUSINESS USE, AND THAT IT HAS AUTHORIZED THE PERSON ACCEPTING THESE TERMS TO BIND CUSTOMER TO THESE TERMS. THE PERSON ACCEPTING THESE TERMS ON CUSTOMER’S BEHALF REPRESENTS THAT THEY HAVE READ THESE TERMS IN FULL AND HAVE FULL LEGAL AUTHORITY TO LEGALLY BIND CUSTOMER TO THESE TERMS. SUCH PERSON’S ONLINE ACCEPTANCE OF THESE TERMS WILL HAVE THE SAME LEGAL EFFECT AS IF CUSTOMER WAS PROVIDING A HANDWRITTEN SIGNATURE OF ACCEPTANCE. IF SUCH PERSON DOES NOT HAVE SUCH AUTHORITY OR IF CUSTOMER DOES 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 CUSTOMER AGREES TO THESE TERMS. IF AN ACCEPT (OR EQUIVALENT) BUTTON IS NOT PRESENT, THEN CUSTOMER’S USE OR ACCESS OF THE SERVICES SIGNIFIES THAT CUSTOMER AGREES TO THESE TERMS. THESE TERMS ARE EFFECTIVE AS OF THE DATE CUSTOMER EITHER SELECT THE “ACCEPT” BUTTON OR DOWNLOAD, ACCESS OR USE THE SERVICES.
GENERAL TERMS
The following Schedules and Exhibit are part of these Terms (along with the respective attachments, if applicable), and any other documents cross-referenced (via hyperlinks or the like):
- • Exhibit A, Definitions
- • Schedule 1, Add-on Services Terms, Avaya Professional Services.
- • Schedule 2, Terms for the purchase of phones or other Equipment.
1. SERVICE PROVIDED; ORDERS; ORDER OF PRECEDENCE; CHANGES; SYSTEM REQUIREMENTS; USE POLICIES; MOBILE SERVICES
1.1 Service Provided. Upon acceptance of an order (pursuant to Section 1.3 below), Avaya will make the Services available to Customer. The Subscription will continue for the Initial Term. Unless otherwise prohibited by applicable law, mandated in the Supplemental Terms, as noted above, or otherwise agreed in writing by Avaya, the Initial Term will renew for consecutive Renewal Terms where auto renew is available, unless either party gives the other thirty (30) days (or longer period if expressly set out by Avaya in the applicable SOW or Supplemental Terms ) advance written notice before the end of the Initial Term or current Renewal Term of their intent not to renew. Where autorenewal is available, the Renewal Term shall be as stated in writing by Avaya in the SOW or Supplemental Terms.
1.2 Use of the Service. Unless otherwise stated in the Supplemental Terms, Customer may use the Service solely for the Customer’s internal business use in accordance with and in the countries designated in the applicable 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 Avaya Intellectual Property are implied.
1.3 Orders. Orders are subject to acceptance by Avaya. Avaya may accept an order by electronic email, at the email address provided by Customer to Avaya from time to time, other agreed means of electronic or written 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.
1.4 Order of Precedence. Unless the Supplemental Terms, or SOW expressly state otherwise, if there is an express conflict between the General Terms, the Supplemental Terms, or SOW, these General Terms will govern the use of the Service, followed next by the applicable Supplemental Terms, and finally the SOW.
1.5 Changes to, and Discontinuation of, the Service.
1.51 Unless the Supplemental Terms or SOW expressly provides otherwise, Avaya may, at its sole discretion, modify the form, features, or functionality of the Service and Supplemental Terms or SOW without prior notice. Avaya will endeavor to timely document material modifications in the Service documentation.
1.52 Notwithstanding anything to the contrary, Avaya 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 SOW 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 of its users. Customer shall be solely responsible for all activities that occur under Customer’s account or Subscription.
1.8 Mobile Services. Some or all of the Service may be available or accessible via a compatible mobile device. Avaya cannot guarantee that all mobile devices are or will be compatible with the Service, and Customer is responsible for all mobile service charges.
1.9 Use Policies. Customer may use the Services only in compliance with these Terms, applicable Law, and the Use Policies referenced in the Matrix. The Use Policies are posted on this website: http://support.avaya.com/TermsOfSale (or such successor site as designated by Avaya) and are incorporated into and form part of these Terms. Any breach of these Use Policies will be deemed a material breach of these Terms. Avaya may update the Use Policies from time to time and will post the updated version. Such updates will become effective on the next calendar month in which Avaya posts the updated version on this website: http://support.avaya.com/TermsOfSale (or such successor site as designated by Avaya). In order to determine which Use Policy applies to each Service, Customer should review the Matrix. The applicable Use Policies are:
a. Avaya Cloud Customer Proprietary Network Information (CPNI) Policy: this Use Policy is incorporated in these Terms, when applicable, governs the use by Avaya of certain customer information in conjunction with certain Services as referenced in the Matrix;
b. Avaya Cloud Emergency Services E911: this Use Policy is incorporated in these Terms, when applicable, governs the provision of emergency services accessed via certain Services as referenced in the Matrix;
c. Services d’urgence E911 Avaya Cloud: this is the same Use Policy as the Avaya Cloud Emergency Services E911 but in French;
d. Avaya Cloud Numbering Policy: this Use Policy is incorporated in these Terms, when applicable, and governs the provision, use and publication of numbers used in conjunction with certain Services as referenced in the Matrix;
e. Acceptable Use Policy: this Use Policy is incorporated in these Terms and describes actions that Avaya prohibits when any party uses its Services;
1.10 Changes to these Terms. AVAYA MAY MODIFY THESE TERMS AT ANY TIME AT ITS SOLE DISCRETION TO THE EXTENT REQUIRED TO COMPLY WITH, AMONG OTHER THINGS, (A) CHANGES TO LAWS OR REGULATIONS APPLICABLE TO THE SERVICES, (B) GOVERNMENTAL ORDERS, (C) MODIFICATIONS TO THE SERVICE, OR (D) OBLIGATIONS IMPOSED BY AVAYA SUPPLIERS, BY POSTING MODIFIED TERMS ON https://www.avaya.com/en/termsofservice/ OR SUCH SUCCESSOR SITE AS DESIGNATED BY AVAYA) OR UPON NOTICE TO CUSTOMER BY COMPANY VIA EMAIL OR THROUGH SOME OTHER MEANS DESIGNATED BY AVAYA. CHANGES TO THESE TERMS WILL BE EFFECTIVE AS OF THE DATE WE POST THEM OR, AT AVAYA’S DISCRETION, ISSUE OUR NOTICE TO CUSTOMER OF SUCH CHANGE, UNLESS WE SPECIFY A DIFFERENT EFFECTIVE DATE WHEN WE MAKE A PARTICULAR CHANGE. CUSTOMER IS SOLELY RESPONSIBLE FOR CHECKING FOR ANY AGREEMENT UPDATES. CUSTOMER’S CONTINUED USE OF THE SERVICE MEANS THAT CUSTOMER ACCEPTS AND AGREES TO ANY REVISED TERMS AND CONDITIONS. In the event Customer does not agree to any such modification, Customer’s sole and exclusive remedy is to discontinue using the Service and terminate these Terms by providing written notice to Avaya of its intent to terminate within fifteen (15) Business Days after Avaya notifies Customer of (or posts) the modified terms. In the event Customer notifies Avaya 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 Avaya of its intent to terminate
2 PAYMENT, INVOICING, FEES and TAXES
2.1 Charges. Unless otherwise stated in the SOW, Supplemental Terms, or order, prices are quoted on a consumption and/or subscription basis and are expressed in local currency. Pricing herein does not include charges for taxes, fees, and government-imposed surcharges, which may be included in the invoices. All fees due to Avaya 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 Avaya to investigate Customer’s credit worthiness and agrees, from time to time, to provide appropriate authorizations and financial information as Avaya may reasonably request for this purpose. Payments must be made at the address designated on the invoice or other such place as Avaya may designate. Avaya invoices and Customer payments will be processed via Avaya’s electronic bill application. Unless otherwise stated in the Supplemental Terms, Services will be billed to Customer monthly in arrears by Avaya and Customer shall pay all fees due hereunder within thirty (30) calendar days of the date of the invoice.
2.2 If Customer uses a credit card or other payment mechanism for a transaction, Customer’s account is billed at the time of or shortly after Customer’s transaction. In such case, Customer hereby authorizes Avaya or its payment processor to bill Customer’s credit card or other payment mechanism as may be approved by Avaya in advance or on a periodic basis in accordance with the terms on the order or Service Description or SOW. Customer will provide Avaya with (and maintain) valid and updated credit card information or other payment information reasonably acceptable to Avaya. If a credit card is declined and no replacement card has been entered, Customer’s Subscription and access to the Service will be suspended, and Customer agrees to pay any outstanding fees within thirty (30) Business Days after receiving notification from Avaya. If the credit card is accepted on any billing attempt, the Subscription billing date will remain the same as the original date for subsequent months. Receipt by Avaya’s payment processor of final good funds in settlement of Customer’s credit card or other payment transaction will satisfy Customer’s payment obligation. Subject to certain credit requirements as determined by Avaya, Avaya may agree to allow Customer to pay amounts due hereunder in arrears. In such event, Customer will make all of the payments due hereunder within thirty (30) calendar days of the date of the invoice. Customer acknowledges and agrees that if applicable, Customer’s credit card on file or other payment mechanism will be automatically charged recurring renewal fees on a monthly basis during the Service Period unless Customer cancels the Subscription (as defined herein). If Customer cancels a Subscription, Customer will not be entitled to a refund or a credit for any fees already due or paid, and Customer may be subject to termination fees as further outlined in the Service Description.
2.3 In the event Customer adds or removes users or if applicable, numbers, during a month, Avaya will charge Customer a prorated portion of the per-user Subscription fees for such added or removed user or number.
2.4 Late Payments. Avaya 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 Avaya 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 fifteen (15) (or other time as expressly set forth in the Supplemental Terms or SOW) calendar 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. Avaya reserves the right to change the fees associated with any Services upon thirty (30) calendar days advance written 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 Avaya 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 Avaya; 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 Avaya and are imposed by any taxing jurisdiction in which Avaya 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 Avaya hereunder, after all such payments or withholdings, equal the amounts to which Avaya is otherwise entitled under these Terms as if such tax or withholding did not exist.
2.8 Regulatory Fees. Avaya may charge Customer the following regulatory fees:
✓ Federal and State Universal Service Fee. Avaya 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. Avaya 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.
✓ Emergency Services Fee. This fee is imposed by local governments to help pay for emergency services such as fire and rescue.
✓ 911 Service Fee. Avaya may charge a per-DID/ phone number fee to recover Avaya’s costs directly associated with providing 911 and E911 to its customers.
✓ Regulatory Recovery Fee. Avaya may charge a monthly regulatory recovery fee to offset costs incurred by Avaya 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 Avaya, the regulatory recovery fee will apply to every DID/ phone number assigned to Customer, including toll free and virtual numbers.
✓ 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.
In addition to Customer’s obligation to pay taxes in accordance with Section 2.7, Customer will be responsible for the payment of all governmental assessments, surcharges and fees pertaining to the use of the Service. Customer will be responsible for all governmental assessments, surcharges and regulatory fees that are imposed on Avaya or any Affiliate of Avaya incident to the provision or sale of the Service, including, but not limited to, any government assessment or regulatory fees imposed on Avaya as a result of a material change in the manner in which the Service or Avaya is regulated.
3 SERVICES PROVIDED; USE OF THE SERVICE
3.1 Services Provided. The Service is sold on a consumption and/or subscription basis, until terminated. Avaya will notify Customer when the Services are available for Customer’s use (“Services Date”). Unless Customer notifies Avaya 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.
3.2 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, as further required in the Supplemental Terms (“System Requirements”), 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.
3.3 Co-operation Scope of Use/ Fair Usage. Avaya 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 Avaya Service or Avaya’s network, including but not limited to issuing warnings; terminating Customer’s use of the Service, Subscription, accounts, or users; or disabling access to or suspending Customer’s use of the Service, Subscription, accounts or users. 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 Avaya.
3.4 Support. Avaya will provide Customer with technical consultation support for the duration of the Service. Customer may access technical support by sending an email or calling the numbers detailed in the applicable Supplemental Terms.
4 AGREEMENT TERM; TERMINATION; DOWNTIME AND SERVICE SUSPENSION; SURVIVAL
4.1 Agreement Term. These Terms begin on the Effective Date and continue until terminated in accordance with Sections 4.2 and 4.3.
4.2 Termination for Cause. Unless otherwise specified in the Supplemental Terms, if either party commits a material breach of its obligations under these Terms, or under any order, the other party may terminate these Terms or the affected order by giving the breaching party at least 30 days’ prior notice, with an opportunity to cure the breach before the 30-day period elapses. If Avaya terminates under this provision, then in addition to any other rights Avaya may have, Customer will be responsible for all fees for the Service for the remainder of the Service Period, as well as any early termination or cancellation fees (if applicable).
4.3 Termination for Convenience. Unless otherwise specified in the Supplemental Terms, Customer or Avaya may terminate these Terms for convenience by providing thirty (30) Business Days advance written notice upon expiration or termination of all Customer’s orders. Individual orders may be terminated for convenience by Customer in accordance with these Terms, 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 the Customer will not be entitled to a refund.
4.4 Expiration/Termination. Upon expiration of the Service Period or termination pursuant to Sections 4.2 or 4.3, Customer shall immediately cease use of the Service and return or destroy (in accordance with Avaya’s instructions) any Deliverables provided to Customer in connection with the Service, including any Avaya’s Intellectual Property. Upon request, Customer shall certify in writing to Avaya that Customer has complied with this provision and Avaya may provide such certification to its suppliers. Except as provided in Section 4.2, 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 Avaya the fees for the Service through the effective date of expiration or termination of an order, 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 expiry or termination.
4.5 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) Avaya shall also be entitled, without incurring any liability to Customer or its users, 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 Avaya 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 Avaya determines, in its sole discretion, may create a risk to the applicable Service, to Customer or its users or to any of Avaya’s other customers if the Service were not suspended; or (iii) in the event that Avaya determines that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). Without limitation to Section 10 (LIMITATION OF LIABILITY), AVAYA 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 USERS may incur as a result of any Service Suspension. To the extent AVAYA is able, AVAYA will endeavor to provide Customer notice of any Service Suspension in accordance with the SUPPLEMENTAL TERMS OR SOW and to post updates regarding resumption of the Service following any such suspension, but shall have no liability for the manner in which AVAYA may do so or if AVAYA fails to do so.
4.6 Survival. The provisions concerning survival, Avaya’s Intellectual Property rights, Disclaimer of Warranties, Limitations of Liability, any indemnification obligations under these Terms in any section of these Terms, Feedback, Confidentiality and Protection of Services, 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.
5 CUSTOMER CONTENT AND MARKS
5.1 Customer is solely responsible for Customer Content, including any loss or damage to Avaya, its suppliers or a third party arising from or relating to Customer Content. Avaya 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) Avaya, its suppliers and subcontractors are authorized to do the same to the extent necessary for the purpose of providing the Service.
5.2 As between Avaya 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.
5.3 Avaya will not share Customer Content or Other Users’ Content with any third parties unless: (a) Avaya has Customer written or electronic consent for sharing any of Customer Content and Other Users’ Content; (b) it is required by law; or (c) Avaya provides Customer Content or Other Users’ Content to third parties (e.g. sub-contractors) to carry out tasks on Avaya’s behalf (e.g., data storage, etc.) as directed by Avaya and subject to appropriate agreements with those third parties.
5.4 Customer hereby grants Avaya 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.
6 OTHER USERS’ CONTENT
6.1 Other Users’ Content. Avaya does not control and shall have no liability or responsibility for Other Users’ Content. Other Users’ Content may be protected by copyright and other Intellectual Property rights of such users or other persons.
6.2 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) Avaya, 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 Avaya arising from any failure by Customer to comply with Sections 6.2(a) or (b).
7 AVAYA’s INTELLECTUAL PROPERTY RIGHTS
7.1 Avaya Owns Company Intellectual Property. Avaya 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, “Avaya Intellectual Property”). Customer shall not, directly or indirectly, copy, modify, rent, lease, sell, loan, distribute, reverse engineer, de-compile, disassemble or otherwise attempt to derive source code or other trade secrets from or create derivative works of the Service or any Avaya Intellectual Property.
7.2 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 Avaya 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 Avaya Intellectual Property, the Service, or any Software.
8 RIGHTS AND DISCLAIMERS
8.1 All information transmitted through the Service is the sole responsibility of the person from whom such information originated. Avaya is not responsible for and will not be liable in any way for such content. Avaya 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 Avaya, in its sole discretion, deems inconsistent with these Terms, including any material Avaya 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 Avaya 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 Avaya’s network, including, without limitation, issuing warnings or disabling or terminating Customer’s Subscription to the Service, accounts or any person’s access to all or part of the Service. Notwithstanding any other provision in these Terms, Avaya may take the action(s) set forth in Sections 8.1(a) and 8.1(b), or similar actions, without notice or liability to Customer or any other party, although Avaya will have no obligation or responsibility to take any such action or review material or content posted on the Service. Accordingly, Avaya assumes no liability for any action or inaction regarding transmissions, communications, or content provided by Customer or any third parties.
8.2 Customer acknowledges that, as part of the Service, Avaya 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 Customer, including, without limitation, after expiration or termination of Customer’s Subscription or as may be required by applicable law. To the extent that Customer wishes to retain any Customer Content or Other Users’ Content, Customer is solely responsible to ensure that such information is downloaded, saved and/or backed-up. Avaya may also implement reasonable limits as to the size or duration of storage of any Customer Content or Other Users’ Content.
8.3 Any software 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. Avaya encourages Customer to create strong passwords using at least 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 Avaya immediately upon becoming aware of any unauthorized use or breach of a username, 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.
8.4 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 at Avaya’s discretion to terminate the accounts or subscription of infringers. If Customer would like to send Avaya 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 Avaya) and follow the instructions on how to get in touch with Avaya. If Customer has trouble accessing this link, then Customer may contact Avaya for further information at copyrightagent@avaya.com with the subject line: “DMCA Takedown Request” or by mail to:
Avaya Copyright Agent Notification
350 Mount Kemble Avenue
Room 2C109
Morristown, NJ 07960
Phone: +1-908-953-2044
9 DISCLAIMER OF WARRANTIES
EXCEPT AS EXPRESSLY SET FORTH AND LIMITED HEREIN AND TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, AVAYA PROVIDES NO WARRANTIES, AND EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE, 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 AVAYA, 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.
10 LIMITATION OF LIABILITY
EXCEPT FOR CLAIMS OF PERSONAL INJURY, WILLFUL MISCONDUCT, VIOLATION OF AVAYA’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 AVAYA 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 AVAYA or CUSTOMER HAS BEEN ADVISED OF THE POSSIBIILITY OF SUCH DAMAGES.
ALL LIABILITY OF AVAYA, 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 AVAYA 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.
11 INDEMNIFICATION
11 Avaya’s Defense and Indemnification Obligations. Avaya 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. Avaya 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 Avaya. Avaya’s obligations under this Section will not apply if the claim arises or results from (a) Customer’s breach of these Terms , (b) modification to the Service or use of the Service outside the scope of these Terms, the Supplemental Terms or SOW, (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 Avaya, (d) Third Party Products and non-Avaya branded Services, (e) Avaya’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 Avaya notifies Customer to stop use due to a third party claim, (g) Customer Content or Customer data (including Personal Data), Other Users’ Content or any other content or data not provided by Avaya, (h) Deliverables, APIs and SDKs, (i) open source and freeware software or (j) 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, Avaya may, at Avaya’s option and discretion, (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 Avaya’s discretion, Avaya may terminate the Service (by unilaterally terminating the applicable order) upon written notice to Customer and refund Customer any advanced payments for unused Subscription.
11.2 Customer’ Defense and Indemnification Obligations. Customer will defend and indemnify Avaya and its Affiliates, and their respective officers, directors, employees, contractors, suppliers, licensors, partners and agents (each, an “Avaya Indemnified Party”) against third party claims brought against an Avaya Indemnified Party arising from (a) Customer’s breach of these Terms, (b) Customer’s violation of applicable law, (c) Customer Content or Customer data (including Personal 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 Avaya Indemnified Party against all damages finally awarded against the Avaya Indemnified Party (or the amount of any settlement entered into by Customer) with respect to such claims.
11.3 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 this Section 11 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.
11.4 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 AVAYA DISCLAIMS, ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE SERVICE AND ANY OTHER AVAYA INTELLECTUAL PROPERTY.
12 DATA PRIVACY
12.1 To the extent Avaya processes Personal Data on behalf of Customer, the most current Avaya DPA, published on http://support.avaya.com/TermsOfSale at the time of the particular order, applies and is incorporated herein by reference. The DPA is considered a Supplemental Term, if applicable.
12.2 Co-operation with law enforcement authorities.
Avaya reserves the right to fully cooperate with any law enforcement authorities, regulatory authorities, or court order requesting or directing Avaya 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 (as defined in the DPA) with whom Customer may communicate or otherwise interact via the Service of the foregoing right belonging to Avaya. 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 AVAYA OR LAW ENFORCEMENT AUTHORITIES. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT AVAYA RESERVES THE RIGHT TO INVOICE CUSTOMER AN ADMINISTRATIVE FEE TO RECOVER AVAYA’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.
13 BACKUP AND RETENTION
Customer acknowledges that it bears sole responsibility for adequate backup of its content, including any Customer Content associated with its account. Avaya strongly encourages 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 10 OF THESE GENERAL TERMS, AVAYA 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, CUSTOMER’S CONTENT AND/OR ANY OTHER USERS’ CONTENT THEREIN.
14 FEEDBACK
Avaya welcomes Customer Feedback about the Service. All such Feedback provided by Customer or its users to Avaya or its authorized channel partners becomes Avaya’s property and Customer agrees that all Intellectual Property rights therein are transferred and hereby assigned to Avaya. Customer agrees to cooperate fully with Avaya in connection with such transfer and assignment and Avaya may use such Feedback however it elects without any monetary or other consideration of any kind owed to Customer or any third party.
15 EXTERNAL LINKS AND THIRD-PARTY SERVICES
In some cases, the Service may contain hyperlinks to External Services and Sites. Customer’s use of such External Services and Sites is at Customer’s own risk. Customer acknowledges and agrees that Avaya has no responsibility for the availability, security, or other aspect of External Services and Sites; Avaya 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. Avaya 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.
16 CONFIDENTIALITY AND PROTECTION OF SERVICE
16.1 Confidentiality. 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 or expiration 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.
16.2 Protection of Service. Customer acknowledges that the Service, any Deliverables delivered to Customer in connection with the Service, and all other Avaya Intellectual Property are the property and Confidential Information of Avaya, its suppliers, and/or its licensors and contain trade secrets of Avaya, its suppliers, and/or its licensors. Customer agrees at all times to protect and preserve the Service, any such Deliverables, and Avaya Intellectual Property and to implement reasonable security measures to protect the trade secrets of Avaya, its Affiliates, suppliers, and its licensors.
17 SOFTWARE LICENSE TERMS AND UPDATES
17.1 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 Avaya Global Software License Terms posted at http://support.avaya.com/LicenseInfo as applicable (or such successor site as designated by Avaya) 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, Supplemental Terms, or SOW and solely for the duration of the Service Period.
17.2 It is possible that Software may automatically download and install updates from Avaya 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.
18 Governing Law, DISPUTE RESOLUTION
18.1 Governing Law. Any Dispute under these Terms will be governed by the laws of the State of New York, excluding both conflict of law principles and the United Nations Convention on Contracts for the International Sale of Goods.
18.2 Dispute Resolution. In the event of any Dispute, the disputing party shall give the other party written notice of the Dispute. The parties will attempt in good faith to resolve each controversy or claim within thirty (30) days, (or other mutually agreed period), following the delivery of notice, by referral to designated representatives of the parties authorized to negotiate resolution thereof.
18.3 Arbitration of Non-US Disputes. Any Dispute that: (i) arose anywhere other than in the United States or is based upon an alleged breach committed anywhere other than in the United States; (ii) cannot be settled under the procedures and within the timeframe set forth in Section18.2; and (iii) is not based upon non-payment, will be conclusively resolved by a final and binding arbitration proceeding 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, except that if the aggregate claims, cross claims and counterclaims by any one party against the other party exceed One Million US Dollars ($1,000,000.00) at the time all such claims 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 (3) 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 10 (Limitation of Liability) and will not award punitive or exemplary damages. The arbitrator(s) will not have the authority to limit, expand or otherwise modify 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 will each bear their 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.
18.4 Choice of Forum for US Disputes. If a Dispute arises in the United States or is based upon an alleged breach committed in the United States and cannot be settled under Section 18.2, then either party may bring an action or proceeding solely in either the Supreme Court of the State of New York, New York County, or the United States District Court for the Southern District of New York. Except as otherwise stated in Section 18.1 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.
18.5 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 18.3 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.
18.6 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 fifteen (15) day period in Section 2.5, Payment Disputes.
18.7 Compliance. Customer and Avaya will cause their Affiliates to comply with the dispute resolution procedures described in this Section.
18.8 Disputes with Other Users. Customer is solely responsible for Customer’s interactions with third parties with whom it uses the Service to interact. Avaya will have no liability with respect to such Customer interactions or disputes that may arise between Customer and such third parties. Avaya reserves the right, but has no obligation, to become involved with disputes between Customer and any such third party in the event that Avaya’s interests are impacted.
19 RECORDING
19.1 Recording of Conferences. If conferences are applicable to the Service Customer is subscribing to, Customer acknowledges 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. Customer acknowledges and agrees that Customer shall be solely responsible for complying with the local laws in the relevant jurisdictions when using recording features (this includes Customer’s obligation to obtain the consent, if required by applicable laws, of all participants before the commencement of the recording). Avaya shall have no liability to Customer or any user or third party if consent is not obtained.
20 EMERGENCY SERVICES, HIPAA and PCI DISCLAIMERS
IN ADDITION, CUSTOMER HAS READ, UNDERSTOOD, AND AGREES TO THE FOLLOWING:
A. UNLESS OTHERWISE STATED HEREIN OR IN THE SUPPLEMENTAL TERMS, CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT THE SERVICE, AS PROVIDED BY COMPANY, IS NOT CONFIGURED TO SUPPORT OR PROVIDE EMERGENCY CALLS OR COMMUNICATIONS OF ANY KIND, INCLUDING, BUT NOT LIMITED TO 911 AND E911 SERVICE.
B. UNLESS OTHERWISE STATED HEREIN OR IN THE SUPPLEMENTAL TERMS, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICE DOES NOT COMPLY WITH THE REQUIREMENTS OF THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT, AS AMENDED, AND ITS IMPLEMENTING REGULATIONS (“HIPAA”).
C. UNLESS OTHERWISE STATED HEREIN OR IN THE SUPPLEMENTAL TERMS, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICE DOES NOT COMPLY WITH THE REQUIREMENTS OF THE PAYMENT CARD INDUSTRY DATA SECURITY STANDARD ALSO REFERED TO AS PCI OR PCI DSS.
21 NOTICES
Any Service-related notice required or permitted under these Terms shall be delivered by sending an email or calling the numbers detailed in the applicable Supplemental Terms. With respect to notices delivered by Avaya, to the email address Customer has provided to Avaya or by posting the notice on the website associated with the Service. Notices given by Customer will be effective when received by Avaya. Notices given by Avaya will be effective when sent or posted.
Legal notices under these Terms will be provided in writing and addressed to the other party at its address set forth herein or to any other address that the receiving party may designate from time to time in accordance with this Section. Notices will be deemed to have been given, as applicable, upon the earlier to occur of (i) actual receipt of the notice or (ii) 10 days after being sent by courier, return receipt requested, to the address stated below:
For Avaya:
ATTENTION: CORPORATE SECRETARY
350 Mount Kemble Avenue
Morristown, NJ 07960
United States
Email: lglnoticescomm@avaya.com
22 GENERAL
22.1 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.
22.2 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 Avaya’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 Avaya’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.
22.3 Force Majeure. Neither party will be liable for any delay or failure in performance, other than payment obligations, to the extent the delay or failure is caused by events beyond the party’s reasonable control, including fire, flood, Act of God, explosion, terroristic acts, hacking, malware, ransomware, business interruption or data loss caused by malicious or criminal act, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, or civil or military authority, provided such party promptly notifies the other party and uses reasonable efforts to correct such failure or delay in its performance.
22.4 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.
22.5 Miscellaneous. These Terms (and, applicable Supplemental Terms, SOW 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 1.10 (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 Avaya as a result of these Terms or use of the Service. Avaya or its representative may audit at Avaya’s discretion, Customer’s compliance with these Terms and Customer’s use of the Service, and Customer shall reasonably cooperate with such remote or onsite audit.
22.6 Assignment & Subcontractors. Avaya may assign these Terms and any order under these Terms to any of its Affiliates or to any entity to which Avaya 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 orders) 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. Avaya may subcontract any or all of its obligations under these Terms but will retain responsibility for the work.
EXHIBIT A- DEFINITIONS
Defined terms are identified by capitalized letters and have the meaning given in this Exhibit or elsewhere in the Terms. This Exhibit A is incorporated into and part of the Terms
“Acceptable Use Policy” or “AUP” means the document posted at http://support.avaya.com/TermsOfSale (or such successor site as designated by Avaya) which describes actions that Avaya prohibits when any party uses its services.
“Add-on Services” means the implementation, onboarding, professional and/or managed services as described in Schedule 1.
“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.
“Business Days” means Monday through Friday, 8:00 to 5:00 pm ET, excluding Avaya holidays.
“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.
“Customer” 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).
“Customer Content” means the content of all data, 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.
“Delivery Date” means the date on which Avaya delivers Equipment in accordance with Schedule 2 or, in the case of Software that can be enabled by Avaya remotely or delivered via electronic means, the date the Software is enabled or downloaded to the target processor.
“Deliverables” means customized software, customized documentation, or other work product provided under Schedule 1.
“Dispute” means any dispute, claim or controversy arising out of or relating to these Terms.
“DPA” means Data Privacy Addendum
“Documentation” means information published by Avaya or its Affiliates in varying mediums which may include product information, operating instructions and performance specifications that Avaya or its Affiliates generally makes available to users of its products. Documentation does not include marketing materials.
“Effective Date” means the date in which these Terms are accepted by the Customer in accordance with the preamble.
“Equipment” has the meaning given to it in Section 1 of Schedule 2.
“External Services and Sites” means non-Avaya websites, content, or resources or otherwise interface or work with third party services which are not maintained or controlled by Avaya.
“Feedback” means comments or suggestions.
“Initial Term” means the term of the Subscription that is indicated in the Customer’s order and commences upon the date the Service is available for Customer’s use.
“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.
“Matrix” means the chart that is posted on the following website (or such successor site as designated by Avaya): http://support.avaya.com/TermsOfSale that indicates the Schedules and Supplemental Terms that apply to a specific Service. Avaya reserves the right to update the Matrix periodically and post an updated version.
“Other Users’ Content” means 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.
“Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”) or household, 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.
“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.
“Project Phase” means a defined activity, objective or period as set out in the applicable SOW during which Add-On Services will be provided.
“Rejection Notice” means a notice Avaya receives from Customer before the end of the Acceptance Period indicating in reasonable detail the material failure of the Add-On Services, Deliverable, or Project Phase, as applicable, to conform to the agreed acceptance criteria in the acceptance procedures.
“Renewal Term” means each of the terms after the Initial Term when the Services are extended.
“Services Date” means the date specified in Section 3.1 herein.
“Service Description” means the applicable description of the Services then current as of the date of Customer’s ordering of the Services which is incorporated by reference and is available to Customer upon request or via links in the Matrix.
“Service Period” means the Initial Term together with any Renewal Term.
“Software” is as defined in the Global Software License Terms posted at http://support.avaya.com/LicenseInfo (or such successor site as designated by Avaya).
“Statement of Work” or “SOW” means a Customer-specific document(s) that describes the features, terms and conditions of an Avaya service being purchased by Customer.
“Subscription” means the term of Customer’s access to the Services.
“T&M Services” or “time and material Services” are Add-On Services which are billed by Avaya based upon the time spent to perform the work and for the materials used.
“Terms” means the General Terms along with any applicable Supplemental Terms, Schedules and SOWs.
“Third Party Products” means any product made or provided by a party other than Avaya, including: (i) products ordered by Customer from third parties; (ii) products provided by Avaya that are recognizable as standalone items, and; (iii) products identified as separate items on Avaya’s price list, quotes, Order specification forms or Documentation.
“Traffic Data” means user billing data and/or metadata, including Caller ID, name, number dialed, duration of call, landline or mobile originated call, SMS send / receive destinations.
“Use Policies” means the policies or additional terms that are incorporated in these Terms and apply to the provision of certain Services as identified herein and in the Matrix.
Schedule 1
Add-on Services TERMS
These Add-on Services Terms for Avaya Professional Services apply 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 Terms, Customer’s use of the Service is at all times subject to the General Terms which incorporate these Add-on Services Terms and the Supplemental Terms (if applicable). Any terms used in these Add-on Services Terms without defining them have the definitions given to them in the General Terms.
1 SCOPE; order of precedence; CHANGES
1.1 Services Provided. Avaya will provide the Add-on Services as specified in an order, and as described in a SOW). Add-on Services may include installation and configuration, onboarding, management, consulting and other services where Avaya creates and delivers Deliverables and/or completes other defined objectives or a Project Phase on a milestone basis, T&M basis or other basis (“T&M Services”). Deliverables do not include generally available hardware and Software or any installation and configuration of generally available Software and hardware. To the extent a SOW provides that Avaya will deliver generally available Avaya products and related services, such products and services must be purchased pursuant to a separate purchase agreement with Avaya.
1.2 Order of Precedence. Specific to the Services provided under this Schedule 1, 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 Terms, any SOW and any ancillary schedules to or documents referenced in a SOW, the order of precedence is: (i) these Add-on Services 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 Avaya'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 Procedures. Where the SOW does not contain specific acceptance criteria, Add-on Services are deemed accepted upon the earlier of either: (i) production use (unless Avaya expressly states otherwise in the Service Description or SOW), (ii) Avaya providing notice of completion to Customer; or (iii) Customer signature of an acceptance certificate.
2.3 SOW with Acceptance Procedures. Add-On Services or a Project Phase as applicable, are deemed accepted upon the earlier of either: (i) the end of the Acceptance Period as set out in the SOW or Order (as applicable), unless before the end of the Acceptance Period Avaya has received from Customer a Rejection Notice; or (ii) Customer signature of an acceptance certificate. If Add-On Services, Deliverable and/or Project Phase, as applicable, fails to conform to the agreed acceptance criteria and Avaya has received a Rejection Notice, then Avaya will re-perform the non-conforming Add-On Services, Deliverable and/or Project Phase, as applicable, and re-submit it for acceptance as described above. If, after resubmission, Add-On Services, Deliverable and/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, Deliverable and/or Project Phase, as applicable, and return all non-conforming Deliverables for a refund of fees paid under the SOW for the non-conforming Add-On Services, Deliverable and/or Project Phase; or (b) accept the Add-On Services, Deliverable and/or Project Phase, as applicable, subject to the warranties and remedies described in this Schedule 1. Customer will be deemed to have accepted the applicable Add-On Services, Deliverable and/or Project Phase in accordance with subsection (b) above if, Avaya has not received a written termination notice within ten (10) days of Avaya’s resubmission for acceptance.
2.4 Acceptance certificate. Upon acceptance or deemed acceptance in accordance with this Section 2, if requested by Avaya, Customer will sign and return an acceptance certificate without delay. Acceptance certificates may be provided by Customer to Avaya by electronic mail, at the email address provided by Avaya to Customer from time to time, or other agreed means of electronic communication.
2.5 Production Use. Unless otherwise provided for in Acceptance Procedures, 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), Avaya may invoice and Customer agrees to pay Avaya, for any additional costs reasonably incurred by Avaya as a direct result of such delay, including, if applicable, rescheduling costs. If such delay continues for more than thirty (30) days Avaya 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 seventy five (75) days, Avaya 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. If a Deliverable includes tangible items to be delivered to Customer, risk of loss and title shall pass as specified in Schedule 2, Section 3.
4.2 License to Deliverables. Subject to Customer’s payment of fees for the Add-on Services, Avaya 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. Software contained in Deliverables will be licensed subject to the Avaya Global Software License Terms found at http://support.avaya.com/LicenseInfo (or such successor site as designated by Avaya) and incorporated into these Terms by reference. The Avaya Global Software License Terms may be referred to as the “EULA”.
5 invoicing and payment
5.1 Avaya will invoice Customer for Add-On Services in advance, unless otherwise agreed in writing or specified in the quote or SOW.
5.2 T&M Services will be invoiced monthly in arrears.
6 Warranty
6.1 Warranty Period. The warranty period for Add-on Services and Deliverables will be thirty (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, Avaya 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, Avaya does not warrant that software contained in the Deliverables will perform uninterrupted or error-free.
6.3 Remedies
6.3.1 Add-on Services. To the extent that Avaya has not performed Add-on Services or the applicable Project Phase in accordance with the above warranty (Non-Conformity) and Avaya receives written notice from Customer within the Warranty Period that identifies the Non-Conformity in reasonable detail, Avaya will re-perform the applicable Add-on Services or a Project Phase. If Avaya determines that re-performance is not commercially reasonable: (i) Avaya 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 Avaya 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, Avaya 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 Avaya 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 Avaya. 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.
7.2 Termination. Unless otherwise provided in the SOW, either party may terminate any Add-On Services or Project Phase that has not been accepted (if acceptance is relevant) upon forty-five (45) days’ prior written notice, and Customer will pay for (a) Add-On Services performed through the effective date of termination, (b) all non-recoverable out-of-pocket expenses incurred by Avaya, and (c) if the termination is effected by Customer, applicable termination fees.
Schedule 2
TERMS FOR THE PURCHASE OF PHONES OR OTHER EQUIPMENT
1. ORDERS. Customer may purchase compatible phones or other hardware (collectively “Equipment”) from Avaya. Customer will order Equipment by placing order as indicated in Section 1.3 of the General Terms. Avaya 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. Avaya 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 may be a part of or embedded in the Equipment that Avaya or its Affiliates delivers electronically to its customers, the instructions posted on Avaya'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 Avaya’s installation instructions available at https://www.avaya.com/ (or such successor site as designated by Avaya).
3. RISK OF LOSS/TITLE. Risk of loss and title to the Equipment hardware will pass to Customer on the Delivery Date. Title to Software provided under these Terms will remain solely with Avaya and its Affiliates and licensors.
4. CHARGES. Avaya will charge Customer for the Equipment on the Delivery Date.
5. DELIVERY. Unless Avaya provides Customer with express written confirmation of a different delivery term, all deliveries of Equipment will be made CIP [Avaya - named shipping point] (INCOTERMS 2020). Notwithstanding the agreed delivery term, Avaya may charge Customer for shipping and handling charges, which may be reflected as a separate line item on Avaya's invoice.
6. WARRANTY AND LIMITATIONS
6.1 Warranty.Avaya 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.
6.2 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.
6.3 Remedies. If Equipment is not in conformance with the warranty above and Avaya receives from Customer during the applicable warranty period a written notice describing in reasonable detail how the Equipment failed to be in conformance, Avaya 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 Avaya. For Software warranty claims, Avaya 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 Avaya will become Avaya’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 AVAYA OR ITS AFFILIATES WITH RESPECT TO THE NONCONFORMANCE OF PRODUCTS.
6.4 Warranty Procedures. Equipment subject to a warranty claim must be returned to Avaya in accordance with Avaya’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 Avaya). Customer shall place warranty requests by sending an email or calling the numbers detailed in the Service Description.
6.5 Costs. If Equipment is returned within the applicable warranty period subject to a valid warranty claim, Avaya will not charge for any repair, replacement, error identification or correction, or return shipment of the non-conforming Equipment. If Avaya determines that the Equipment was operating in conformance with its applicable warranty, Avaya may charge Customer for error identification or correction efforts, repair, replacement and shipment costs at Avaya’s then current rates.
6.6 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-Avaya furnished equipment, software, or facilities with Equipment (except to the extent provided in the Documentation); (d) Customer’s failure to follow Avaya’s installation, operation or maintenance instructions; (e) Customer’s failure to permit Avaya 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 Avaya or a third party specifically authorized by Avaya to provide the service or modification. In the event Customer purchases any Third-Party Products from Avaya, Avaya provides Third Party Products on an” AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, unless Avaya specifies otherwise. However, such Third-Party Products may carry their own warranties and Avaya 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 AVAYA, NOR ITS LICENSORS, SUPPLIERS, OR AFFILIATES MAKES ANY EXPRESS REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS WITH REGARD TO THE EQUIPMENT. AVAYA 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, AVAYA 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.
END OF AVAYA TERMS OF SERVICE
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