1. Access. Avaya has the right, but not the duty, to terminate or suspend Your access to the Website, without notice, for any conduct that Avaya, in its sole discretion, believes is in violation of any applicable law or is harmful to the interests of another user, a third-party provider, a service provider or Avaya. Avaya makes no representation that the information contained in the Website is appropriate or available for use throughout the world. It is forbidden to access the Website from territories where the legislation provides that the content or use of the Website is illegal. You choose to use the Website on Your own initiative, and it is Your responsibility to ensure that You conform to all applicable local laws.
2. Copyright. Avaya, its suppliers or the original creator of the material own all copyrights to material on the Website and all other intellectual property rights related to the Website. To the extent that Avaya has the right to do so without compensation to third parties, and except for material specifically provided under other terms, Avaya grants You permission to copy materials on the Website solely for Your non-commercial use in support of Avaya products. You agree that any copies of material shall retain all copyright and other proprietary notices in the same form and manner as the original. You may not, without Avaya's permission, "mirror" any material contained on the Website or any other server. Except as specified above, nothing contained herein shall be construed as conferring by implication, estoppel or otherwise any license or right under any trademark, patent, copyright, mask work protection right or any other intellectual property right o f Avaya or any third party.
3. Trademarks. Avaya and the Avaya logo are trademarks or service marks, registered or not, of Avaya. Nothing in the Website may be interpreted so as to grant to You, directly or indirectly, the use of a trademark or service mark reproduced on the Website, whether belonging to Avaya or third party suppliers, without the written permission of Avaya.
4. Information Provided to Avaya.
4.1. Avaya does not want You to, and You should not, send any confidential or proprietary information to Avaya via the Website. Any submission by You to Avaya, including but not limited to questions, comments, suggestions or the like shall be deemed to be non-confidential and shall become the property of Avaya. Furthermore, by Your submission You grant Avaya an unrestricted, irrevocable license to use, reproduce, display, perform, modify, transmit, and distribute such information. Avaya shall be free to use any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever, including but not limited to developing, manufacturing, and marketing products incorporating such information.
5. Links. THE LINKS ON THE WEBSITE WILL LET YOU LEAVE AVAYA'S SITE. THE LINKED SITES ARE NOT UNDER THE CONTROL OF AVAYA AND AVAYA IS NOT RESPONSIBLE FOR THE CONTENTS OF ANY LINKED SITE OR ANY LINK CONTAINED IN A LINKED SITE, OR ANY CHANGES OR UPDATES TO SUCH SITES. AVAYA IS NOT RESPONSIBLE FOR WEBCASTING OR ANY OTHER FORM OF TRANSMISSION RECEIVED FROM ANY LINKED SITE. AVAYA IS PROVIDING THESE LINKS TO YOU ONLY AS A CONVENIENCE, AND THE INCLUSION OF ANY LINK DOES NOT IMPLY ENDORSEMENT BY AVAYA OF THE SITE.
6. Product Availability. The availability of the products described on the Website, and the product descriptions, may vary from country to country. You should consult the applicable Avaya affiliate or authorized distributor for availability of specific products in Your area.
7. Export of Information. The United States Export Controls laws prohibit the export of certain technical data and software to certain territories. No content from the Website may be downloaded or otherwise exported in violation of United States law or any other local law from where You may be accessing the Website. You agree to comply with all United States and foreign Federal, State and local laws and regulations applicable to the use of the Website.
8. Limitation of Liability. AVAYA, ITS RELATED COMPANIES, DIRECTORS, EMPLOYEES, REPRESENTATIVES OR AGENTS MAY NOT, UNDER ANY CIRCUMSTANCES BE HELD LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF (OR THE INABILITY TO USE) THE WEBSITE OR ANY MATERIAL ON THE WEBSITE. THIS INCLUDES, BUT IS NOT LIMITED TO, THE LOSS OF DATA OR LOSS OF PROFIT, EVEN IF AVAYA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF ALL OR PART OF THIS LIABILITY IS FOUND UNENFORCEABLE FOR ANY REASON, THEN AVAYA'S MAXIMUM AGGREGATE LIABILITY UNDER SUCH CIRCUMSTANCES FOR LIABILITY THAT WOULD OTHERWISE HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100).
9. Assignment. The TOU may not be assigned or transferred by You without the prior written consent of Avaya. Avaya may assign the TOU to any affiliate or third party in part or in whole.
10.1. Any controversy or claim arising out of or in connection with the TOU, its enforcement or interpretation ("Dispute"), will be finally resolved solely in accordance with the terms of this Section 10.
10.2. If a Dispute arises, the parties will endeavor to resolve the Dispute through good faith negotiation within forty-five (45) days of notification of the Dispute. If the Dispute cannot be settled through good faith negotiation, Avaya and You will submit the Dispute to non-binding mediation conducted by the American Arbitration Association ("AAA") or any other mutually acceptable alternate dispute resolution organization. Each party shall bear its own expenses but those related to the compensation of the mediator shall be borne equally. The parties, their representatives, other participants and the mediator (and arbitrator, if any) shall hold the existence, content and result of mediation in confidence. If the Dispute is not resolved through mediation, claims may be brought in a state or federal court of competent jurisdiction or resolved through binding 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.
10.3. Actions on Disputes between the parties with respect to the TOU must be brought in accordance with this Section 10 within two years after the cause of action arises.
11. Governing Law. The validity, construction and performance of this Agreement will be governed by the substantive laws of the State of New York, without giving effect to any provisions that would result in this Agreement being governed by the law of any jurisdiction other than that of the State of New York. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods. Subject to Section 10, the parties hereby consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in the Borough of Manhattan, New York City for the purposes of adjudicating any matter arising from or in connection with this Agreement. THE PARTIES UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS AGREEMENT AND/OR THE USE OF THE WEBSITE.
12. Access to Password Protected/Secure Areas. Access to and use of password protected and/or secure areas of the Website is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the Website may be subject to prosecution.
13. Data Privacy.
13.1. You and Avaya agree that they shall comply in all respects with all applicable data protection laws and regulations (or any legislation or regulations amending or replacing the same) (together, the "Data Protection Laws").
13.2. You shall in connection with these TOU (i) not do or permit anything to be done through an act or omission which might jeopardise or contravene Avaya's liability under Data Protection Laws; and (ii) enter into such agreements as Avaya shall reasonably require in relation to the cross border migration of personal data.
13.3. You shall indemnify and keep Avaya fully indemnified against any and all liability, loss, damage, costs (including legal costs) and expenses which Avaya, or any Avaya affiliate may incur or suffer whether direct or consequential (including without limitation any economic loss or other loss of profits, business or goodwill) as a result of any breach of Section 13.2.
13.4. WHEN YOU SUBMIT PERSONAL DATA TO AVAYA ON THE WEBSITE OR WHEN REGISTERING FOR THE WEBSITE, AVAYA MAY TRANSFER AND/OR RETAIN THE PERSONAL DATA YOU SUBMITTED TO A COUNTRY OUTSIDE THE COUNTRY IN WHICH YOU ARE LOCATED OR FROM WHERE SUCH PERSONAL DATA WAS COLLECTED, WHICH MAY NOT HAVE THE SAME OR EQUIVALENT DATA PRIVACY PROTECTIONS. IF YOU DO NOT APPROVE OF SUCH TRANSFER AND/OR RETENTION, DO NOT SUBMIT PERSONAL DATA TO AVAYA.
13.5. BY AGREEING TO THESE TOU, YOU ARE AGREEING THAT AVAYA MAY SHARE YOUR PERSONAL DATA AND OTHER INFORMATION (WITH THE EXCEPTION OF ACCOUNT, CREDIT CARD AND ORDERING INFORMATION) WITH THIRD PARTIES IN CASES WHERE AVAYA BELIEVES YOUR BUSINESS INTERESTS WILL BE SERVED. IF YOU DO NOT APPROVE OF AVAYA SHARING YOUR PERSONAL DATA AND OTHER INFORMATION IN SUCH A FASHION, DO NOT AGREE TO THESE TOU.
13.6. Please click on the "Privacy Statement" link at the bottom of each Website page for disclosures relating to the collection and use of Your personal information.
14. Software License terms. Any software You download from the Website is governed by (i) the license terms accompanying the software or (ii) if no license terms accompany the software, the terms of Your license agreement with Avaya which accompanied the original product licensed by You which you are updating or (iii) if neither (i) or (ii) is applicable, the Software License Agreement below.
Software License Agreement
(1) License Grant. Avaya grants to you, subject to the following terms and conditions, a nonexclusive, nontransferable right to use the software on a single processor at a time. Avaya reserves all rights not expressly granted to you.
(2) Protection of Software. You agree to use Your best efforts to protect the software and documentation from unauthorized copy or use. The software source code represents and embodies trade secrets of Avaya and/or its licensors. The source code and embodied trade secrets are not licensed to you and any modification, addition or deletion is strictly prohibited. You agree not to disassemble, decompile, or otherwise reverse engineer the software in order to discover the source code and/or the trade secrets contained in the source code.
To the extent that the software is located in a Member state of the European Community and you need information about the software in order to achieve interoperability of an independently created software program with the software, you shall first request such information from Avaya. Unless Avaya refuses to make such information available, you shall not take any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to the software. Avaya may charge you a reasonable fee for the provision of such information.
(3) Copies. You may make a single archive copy of the software. You may not copy documentation unless it carries a statement that copying is permitted. All proprietary rights notices must be faithfully reproduced and included on all copies.
15. Forward-Looking Statements. Some of the information on this Website may contain forward-looking statements. These statements are only predictions based on our current expectations and projections about future events. Because these forward-looking statements involve risks and uncertainties, there are important factors that could cause Avaya's actual results, level of activity, performance or achievements to differ materially from the results, level of activity, performance or achievements expressed or implied by the forward-looking statements. In this regard, You should specifically consider the numerous risks outlined in our SEC filings.
16.1 WHILE AVAYA ATTEMPTS TO PROVIDE ACCURATE INFORMATION ON THE WEBSITE, IT ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OF THE INFORMATION. AVAYA MAY CHANGE THE INFORMATION ON THE WEBSITE, OR THE PRODUCTS MENTIONED, AT ANY TIME WITHOUT NOTICE. MATERIAL, INCLUDING SOFTWARE, ON THE WEBSITE AND THE WEBSITE ITSELF IS PROVIDED "AS IS" AND AVAYA DOES NOT PROVIDE ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. AVAYA SPECIFICALLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE WEBSITE OR ANY CONTENT OR MATERIAL ON THE WEBSITE.
16.2 AVAYA MAKES NO WARRANTY THAT (i) THE WEBSITE WILL MEET YOUR REQUIREMENTS, (ii) ACCESS TO THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE WILL BE ACCURATE OR RELIABLE, AND (iv) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
16.3 ANY MATERIAL OR SOFTWARE DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE WEBSITE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL OR SOFTWARE.
16.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AVAYA OR THROUGH OR FROM THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOU.