• Copyright Notices

THIS END USER LICENSE AGREEMENT ("SOFTWARE LICENSE TERMS") GOVERNS THE USE OF AVAYA’S PROPRIETARY SOFTWARE and Third-party proprietary software. READ THESE SOFTWARE LICENSE TERMS CAREFULLY, IN THEIR ENTIRETY, BEFORE INSTALLING, DOWNLOADING OR USING THE AVAYA SOFTWARE (AS DEFINED BELOW). BY INSTALLING, DOWNLOADING OR USING THE AVAYA SOFTWARE, OR AUTHORIZING OTHERS TO DO SO, YOU, ON BEHALF OF YOURSELF AND THE ENTITY FROM WHOM YOU ARE INSTALLING, DOWNLOADING OR USING THE SOFTWARE (HEREINAFTER REFERRED TO INTERCHANGEABLY AS "YOU" AND "END USER"), AGREE TO THESE TERMS AND CONDITIONS AND CREATE A BINDING CONTRACT BETWEEN YOU AND AVAYA INC. OR THE APPLICABLE AVAYA AFFILIATE ("AVAYA"). IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE SOFTWARE LICENSE TERMS. ANY USE OF THE SOFTWARE WILL CONSTITUTE YOUR ASSENT TO THESE SOFTWARE LICENSE TERMS (OR RATIFICATION OF PREVIOUS CONSENT). IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT WISH TO BE BOUND BY THESE SOFTWARE LICENSE TERMS, YOU MUST RETURN OR DELETE THE SOFTWARE WITHIN TEN (10) DAYS OF DELIVERY FOR A REFUND OF THE FEE, IF ANY, YOU PAID FOR THE LICENSE OR IF SOFTWARE IS ACCESSED ELECTRONICALLY, SELECT THE "DECLINE" BUTTON AT THE END OF THESE SOFTWARE LICENSE TERMS.

A. Scope. These Software License Terms are applicable to anyone who downloads and/or installs Avaya Software, purchased from Avaya Inc., any Avaya Affiliate, or an authorized Avaya reseller (as applicable) under a commercial agreement with Avaya or an authorized Avaya reseller ("Agreement"). Unless otherwise agreed to by Avaya in writing, Avaya does not extend this license if the Software was obtained from anyone other than Avaya, an Avaya Affiliate or an Avaya authorized reseller, and Avaya reserves the right to take legal action against you and anyone else using or selling the Software without a license. To the extent there is a conflict between these Software License Terms and another Agreement, the order of precedence shall be (i) your Agreement with Avaya if you purchased from Avaya Inc. or an Avaya Affiliate, or (ii) these Software License Terms if you purchased from an authorized Avaya reseller, except with respect to third party elements subject to a Shrinkwrap License or other Third Party Terms, in which case the Shrinkwrap License or other Third Party Terms will prevail. "Avaya Affiliate" means any entity that is directly or indirectly controlling, controlled by, or under common control with Avaya Inc. 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 terms "controlling" and "controlled" have meanings correlative to the foregoing.

B. License Grant. Avaya grants you a personal, non-sublicensable, non-exclusive, non-transferable license to use Software and Documentation obtained from Avaya or an Avaya authorized reseller and for which applicable fees have been paid for your internal business purposes at the indicated capacity and features and within the scope of the applicable license types described below and at locations where the Software is initially installed. "Documentation" means Avaya information and manuals containing operating instructions and performance specifications that Avaya generally makes available to users of its products and delivers with the Software. Documentation does not include marketing materials.

(i) Right to Move License Entitlements. Notwithstanding the foregoing, You may move right to use license entitlements (RTU’s) from one location to another within the country where the Software was originally purchased or anywhere within the European Union (EU) if purchased within the EU in accordance with Avaya’s then-current software license move policy for that Software which is available upon request subject to the following conditions:

a. You shall provide prompt written notice to Avaya or an Authorized Provider of any RTU moves including but not limited to, the number and type of licenses moved, the location of the original Server and the location of the new Server, the date of such RTU moves and any other information that Avaya may reasonably request;

b. You may only move RTU’s to and from Designated Processors or Servers supporting the same Software application;

c. You acknowledge that maintenance services do not cover system errors caused by moves not performed by Avaya, and if any such transfer results in a requirement for Avaya system engineering or requires the use of on-site Avaya personnel, you will be charged the Time & Materials fees for such activity; and

d. If your maintenance coverage differs on licenses on the same product instance at the location of the new Server, Service updates, recasts and/or fees may apply.

(ii) Non-Production License Grant. With respect to Software distributed by Avaya to you for non-production purposes, Avaya grants to you, subject to the terms and conditions contained herein, a personal, nonexclusive, nontransferable and non-sublicensable right to use the Software in a non-production environment solely for testing, development or other non-commercial purposes on a single computer ("Non-Production License").

C. All Rights Reserved. Except for the limited license rights expressly granted in these Software License Terms, Avaya reserves all rights in and to the Software and Documentation and any modifications thereto. You will own only the hardware or physical media on which the Software is stored, if any.

D. General License Restrictions. To the extent permissible under applicable law, you agree not to: (i) decompile, disassemble, or reverse engineer the Software; (ii) alter, modify or create any derivative works based on the Software or Documentation; (iii) merge the Software with any other Software other than as expressly set forth in the Documentation; (iv) use, copy, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Software or Documentation except as expressly authorized by the Agreement with a Avaya; (v) distribute, disclose or allow use of the Software or Documentation, in any format, through any timesharing service, service bureau, network or by any other means; (vi) allow any service provider or other third party, with the exception of Avaya’s authorized resellers and their designated employees ("Authorized Providers") who are acting solely on behalf of and for the benefit of End User, to use or execute any software commands that cause the Software to perform functions that facilitate the maintenance or repair of any product except that a service provider or other third party may execute those software commands that, as designed by Avaya, would operate if a user is logged into a product using a customer level login and Maintenance Software Permissions ("MSPs") were not enabled or activated; (vii) gain access to or the use of any Software or part thereof without authorization from Avaya; (viii) enable or activate, or cause, permit or allow others to enable or activate any logins reserved for use by Avaya or Authorized Providers; or (ix) permit or encourage any third party to do so. Authorized Providers shall be obligated to comply with the terms and provisions of these Software License Terms. End User shall advise any third party, including any Authorized Provider, who accesses or uses any Software of the terms and provisions of these Software License Terms. End User shall be responsible for such third party’s failure to comply and shall indemnify Avaya for any damages, loss, expenses or costs, including attorneys’ fees and costs of suit, incurred by Avaya as a result of non-compliance with this section. Notwithstanding the foregoing, if the Software is rightfully located in a member state of the European Union and End User needs information about the Software in order to achieve interoperability of an independently created software program with the Software, End User will first request such information from Avaya. Avaya may charge End User a reasonable fee for the provision of such information. If Avaya refuses to make such information available, then End User may take steps, such as reverse assembly or reverse compilation, to the extent necessary solely in order to achieve interoperability of the Software with an independently created software program. To the extent that the End User is expressly permitted by applicable mandatory law to undertake any of the activities listed in this section End User will not exercise those rights until End User has given Avaya twenty (20) days written notice of its intent to exercise any such rights.

E. Backup Copies. End User may create a reasonable number of archival and backup copies of the Software and the Documentation, provided all proprietary rights notices, names and logos of Avaya and its suppliers are duplicated on each copy.

F. Warranty. Avaya provides a limited warranty on its Software and Hardware. Avaya's standard warranty language as well as information regarding support while under warranty, is available through the following website: http://support.avaya.com. Please note that if you are acquiring the Software or Hardware from an authorized Avaya reseller outside of the United States and Canada, the warranty is provided to you by said Avaya reseller and not by Avaya. EXCEPT AS REFERENCED HEREIN, THE SOFTWARE IS PROVIDED "AS IS" AND NEITHER AVAYA NOR ITS SUPPLIERS MAKES ANY EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO ANY PRODUCTS OR SERVICES OR OTHERWISE RELATED TO THE AGREEMENT OR SOFTWARE LICENSE TERMS. AVAYA DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF PRODUCTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AVAYA DISCLAIMS ALL WARRANTIES IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

G. Compliance. At Avaya’s request and upon reasonable prior written notice, Avaya will have the right to inspect End User’s compliance with these Software License Terms.

H. Termination of License. If you breach the license limitations or restrictions in these Software License Terms and if within ten (10) business days of your receipt of a reasonably detailed written request to cure, you have not cured all breaches of license limitations or restrictions, Avaya may, with immediate effect, terminate the Software licenses granted in these Software License Terms without prejudice to any available rights and remedies in contract and for infringement. Upon termination or expiration of the license for any reason, you shall immediately return the Software and any copies to Avaya, or, at Avaya’s discretion and written notice to you, you shall permanently destroy all copies of the Software and any related materials in your possession or control. The provisions concerning confidentiality, indemnity, license restrictions, export control, and all limitations of liability and disclaimers and restrictions of warranty (as well as any other terms which, by their nature, are intended to survive termination) will survive any termination or expiration of the Software License Terms.

I. License Types. Avaya grants you a license within the scope of the license types described below. Where the order documentation does not expressly identify a license type, the applicable license will be a Designated System License. The applicable number of licenses and units of capacity for which the license is granted will be one (1), unless a different number of licenses or units of capacity is specified in the documentation or other materials available to you. "Designated Processor" means a single stand-alone computing device. "Server" means a Designated Processor that hosts a software application to be accessed by multiple users. "Software" means the computer programs in object code, originally licensed by Avaya and ultimately utilized by you, whether as stand-alone products or pre-installed on Hardware. "Hardware" means the standard hardware products, originally sold by Avaya and ultimately utilized by you.

Designated System(s) License (DS). End User may install and use each copy of the Software only on a number of Designated Processors up to the number indicated in the order. Avaya may require the Designated Processor(s) to be identified in the order by type, serial number, feature key, location or other specific designation, or to be provided by End User to Avaya through electronic means established by Avaya specifically for this purpose.

Concurrent User License (CU). End User may install and use the Software on multiple Designated Processors or one or more Servers, so long as only the licensed number of Units are accessing and using the Software at any given time. A "Unit" means the unit on which Avaya, at its sole discretion, bases the pricing of its licenses and can be, without limitation, an agent, port or user, an e-mail or voice mail account in the name of a person or corporate function (e.g., webmaster or helpdesk), or a directory entry in the administrative database utilized by the Software that permits one user to interface with the Software. Units may be linked to a specific, identified Server.

Database License (DL). End User may install and use each copy of the Software on one Server or on multiple Servers provided that each of the Servers on which the Software is installed communicates with no more than a single instance of the same database.

CPU License (CP). End User may install and use each copy of the Software on a number of Servers up to the number indicated in the order provided that the performance capacity of the Server(s) does not exceed the performance capacity specified for the Software. End User may not re-install or operate the Software on Server(s) with a larger performance capacity without Avaya’s prior consent and payment of an upgrade fee.

Named User License (NU). You may: (i) install and use the Software on a single Designated Processor or Server per authorized Named User (defined below); or (ii) install and use the Software on a Server so long as only authorized Named Users access and use the Software. "Named User," means a user or device that has been expressly authorized by Avaya to access and use the Software. At Avaya’s sole discretion, a "Named User" may be, without limitation, designated by name, corporate function (e.g., webmaster or helpdesk), an e-mail or voice mail account in the name of a person or corporate function, or a directory entry in the administrative database utilized by the Software that permits one user to interface with the Software.

Shrinkwrap License (SR). You may install and use the Software in accordance with the terms and conditions of the applicable license agreements, such as "shrinkwrap" or "clickthrough" license accompanying or applicable to the Software ("Shrinkwrap License").

J. Third-party Components. Certain software programs or portions thereof included in the Software may contain software (including open source software) distributed under third party agreements ("Third Party Components"), which may contain terms that expand or limit rights to use certain portions of the Software ("Third Party Terms"). Information identifying the copyright holders of the Third Party Components and the Third Party Terms that apply is available on Avaya’s website at: http://support.avaya.com/Copyright.

K. Limitation of Liability. EXCEPT FOR PERSONAL INJURY CLAIMS, WILLFUL MISCONDUCT AND END USER’S VIOLATION OF AVAYA’S OR ITS SUPPLIERS INTELLECTUAL PROPERTY RIGHTS, INCLUDING THROUGH A BREACH OF THE SOFTWARE LICENSE TERMS AND TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER AVAYA OR ITS SUPPLIERS NOR END USER SHALL BE LIABLE FOR (i) ANY INCIDENTAL, SPECIAL, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, OR (ii) FOR ANY LOSS OF PROFITS, REVENUE, OR DATA, TOLL FRAUD, OR COST OF COVER AND (iii) DIRECT DAMAGES ARISING UNDER THESE SOFTWARE LICENSE TERMS IN EXCESS OF THE PURCHASE PRICE AND FEES PAID FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM.

L. Protection of Confidential Software and Documentation. End User acknowledges that the Software and Documentation are regarded as confidential by Avaya and its suppliers ("Confidential Information") and End User agrees at all times to protect and preserve in strict confidence the Software and Documentation.

M. Protection of Personal Data. The use of the Software may require the processing of personal data pertaining to you or to your personnel. Personal data required to use the Software will need to be submitted to Avaya. Failing the submission of such data, the use of the Software will not be possible. You or your personnel have a right to access and correct erroneous personal data pertaining to you or your personnel and to object for legitimate reasons to the processing and transfer of these data. You can exercise this right by contacting in writing the Data Privacy Officer of the applicable Avaya Affiliate.

N. High Risk Activities. The Software is not fault-tolerant and are not designed, manufactured or intended for any use requiring fail-safe performance in which the failure of the Software could lead to death, serious personal injury, severe physical or environmental damage ("High Risk Activities"). This includes the operation of aircraft or nuclear facilities.   You agree not to use, or license the use of, the Software in connection with any High Risk Activities.

O. Export Control. You are advised that the Software is of U.S. origin and subject to the U.S. Export Administration Regulations (EAR); diversion contrary to U.S. law and regulation is prohibited. You agree not to directly or indirectly export, re-export, import, download, or transmit the Software to any country, end user or for any use that is prohibited by applicable U.S. regulation or statute (including but not limited to those countries embargoed by the U.S. government). You represent that neither the U.S. Bureau of Industry and Security (BIS) nor any other governmental agency has issued sanctions against End User or otherwise suspended, revoked or denied End User's export privileges. You agree not to use or transfer the Software for any use relating to nuclear, chemical or biological weapons, or missile technology, unless authorized by the U.S. Government by regulation or specific written license. Additionally, you are advised that the Software may contain encryption algorithm or source code that may be limited for export to government or military end users without a license issued by the U.S. BIS and any other country's governmental agencies, where applicable. Lastly, you agree not to directly or indirectly export, re-export, import, or transmit the Software contrary to the laws or regulations of any other governmental entity that has jurisdiction over such export, import, transmission, or use.

P. U.S Government End Users. The Software shall be classified as "commercial computer software" and the Documentation is classified as "commercial computer software documentation" or "commercial items," pursuant to FAR 12.212 or DFAR 227.7202, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software or Documentation by the Government of the United States shall be governed solely by the terms of these Software License Terms and shall be prohibited except to the extent expressly permitted by the terms of these Software License Terms.

Q. Acknowledgement. End User acknowledges that certain Software may contain programming that: (i) restricts, limits and/or disables access to certain features, functionality or capacity of such Software subject to the End User making payment for licenses to such features, functionality or capacity; or (ii) periodically deletes or archives data generated by use of the Software and stored on the applicable storage device if not backed up on an alternative storage medium after a certain period of time.

R. Miscellaneous. These Software License Terms will be governed by New York State laws, excluding conflict of law principles and the United Nations Convention on Contracts for the International Sale of Goods. If a dispute cannot be settled by good faith negotiation between the parties within a reasonable period of time, and to the extent authorized by applicable law, it must be finally settled upon request of either party by arbitration to be held in accordance with the Rules of Arbitration of the International Chamber of Commerce by a single arbitrator appointed by the parties or (failing agreement) by an arbitrator appointed by the President of the International Chamber of Commerce (from time to time). The arbitration will be conducted in the English language, at a location agreed by the parties or (failing agreement) ordered by the arbitrator. The arbitrator will have authority only to award compensatory damages and will not award punitive or exemplary damages. The arbitrator will not have the authority to limit, expand or otherwise modify the Software License Terms. The ruling by the arbitrator will be final and binding on the parties and may be entered in any court having jurisdiction. Avaya and you will each bear its own attorneys' fees associated with the arbitration. Notwithstanding the foregoing, Avaya shall be entitled to take immediate legal action where required to protect its confidential or proprietary information, or to obtain any interim injunction. If any provision of these Software License Terms is determined to be unenforceable or invalid, these Software License 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 to assert any rights under the Software License Terms, 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 Software License Terms in accordance with their terms. If you move any Software, and as a result of such move, a jurisdiction imposes a duty, tax, levy or fee (including withholding taxes, fees, customs or other duties for the import and export of any such Software), then you are solely liable for, and agree to pay, any such duty, taxes, levy or other fees.

Agreement in English. The parties confirm that it is their wish that these Software License Terms, as well as all other documents relating hereto, including all notices, have been and shall be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s'y rattachent, soient rédigés en langue anglaise. Las partes ratifican que es su voluntad que este Contrato, así como cualquier otro documento relacionado con el mismo, incluyendo todo tipo de notificaciones, han sido redactados y deberán continuar siendo redactados únicamente en el idioma inglés.