(either as an individual or any other legal entity) (“You” or “Your”) and
Avaya World Services Inc. (“Avaya”). Your access to, and use of, the Avaya website for
which You are registering (“Website”) is subject to, and governed by, these TOU.
If You are an individual, You represent and warrant to Avaya that You are accessing
the Website as a representative of Your company. Avaya may amend the TOU by providing
notice to you when you access the Website and You may be required to agree to such amended
TOU as a condition to Your continued use of the Website.
Be sure to carefully read and understand all of the rights and restrictions delineated in
these TOU. You are asked to review and either accept or reject the terms and conditions
of the TOU. For Your reference, You may print the TOU by using the “Print” option on Your
browser. Your registration will be rejected unless or until You accept the terms of the TOU.
Your click of the "ACCEPT" button below is a symbol of Your signature that You accept the
terms of these TOU.
Notwithstanding anything to
the contrary contained herein, use of the Avaya Direct Website is
apply with respect to the use of the Avaya Direct Website.
1. Term and Coverage.
1.1. The TOU will remain in effect until one party terminates the TOU,
with or without cause and without liability, except as otherwise provided herein,
(i) for Avaya immediately upon notice to You, and (ii) by You upon five days written notice.
1.2. All terms and conditions of Your orders and any sales made pursuant to
accepted orders will be governed exclusively by separate contracts between You
and the applicable Avaya affiliate or authorized distributor.
2.1. You are responsible for the security of Your login ID and password
(“Identifications”) for the Website. You agree that any person using Your Identification
issued for the Website will be treated by Avaya as having been authorized by You to access
Your information as contained on the Website, and take any other actions on Your behalf.
You will indemnify and hold harmless Avaya and its affiliated companies from all damages,
costs, expenses, liabilities and claims incurred by them arising out of any action taken by
any person or entity using an Identification.
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. 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.
4. 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.
5.1. Avaya and the Avaya logo are trademarks or service marks, registered or not,
of Avaya. Nothing in this Site 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.
6. Confidential Information.
6.1. Avaya considers Your Identifications and information contained in non-public
areas of the Website (i.e., areas of the Website accessible only with use of Your Identification)
and not otherwise generally available to the public to be confidential and proprietary
(“Confidential Information”). You agree that such Confidential Information,
whether written or oral, in whatever form provided, will remain the property of Avaya.
6.2. You agree to restrict disclosure of such Confidential Information
to employees, contractors and other representatives of Your company with a clear need to
know and to advise such employees, contractors and other representatives of the
existence and terms of the TOU and the obligations of confidentiality herein.
6.3. During the term of the TOU, Avaya may receive from You,
or may itself generate (based upon other information received from You),
information and data related to Your projects (“Projects”). Such information may
include technical information, preliminary product and service descriptions, specifications
and business plans or other confidential data. You hereby consent to Avaya collecting,
holding, using, communicating and/or disclosing such Project information on the
Website and to make available such Project information to all Authorized Users.
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.
8. 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.
9. 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.
10. 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
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.
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.
All notices under these TOU will be given only in writing to Avaya at AvayaWebTerms and to
You at the addresses you provided when registering for the Website. Each party may change its notification
address, by giving reasonable written notice of the change to the other party in accordance with these provisions.
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 13.
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
Information, or to obtain any interim injunction.
Actions on Disputes between the parties with respect to the TOU must be brought in accordance
with this Section 13 within two years after the cause of action arises.
14. 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. 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 CONFIDENTIAL INFORMATION.
15. Data Privacy
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”).
You shall in connection with these TOU (i) not do or permit anything to be done
through an act or omission which might jeopardize 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.
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 15.2.
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.
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.
WHILE AVAYA ATTEMPTS TO PROVIDE ACCURATE INFORMATION ON THE WEB SITE,
IT ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OF THE INFORMATION. AVAYA MAY CHANGE THE
INFORMATION ON THE WEB SITE, OR THE PRODUCTS MENTIONED, AT ANY TIME WITHOUT NOTICE. MATERIAL
ON THE WEB SITE AND THE WEB SITE 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 WEB SITE OR ANY CONTENT
ON THE WEB SITE.
This constitutes the entire agreement between the parties with respect to the Website and its
use and, except with respect to the Avaya Direct Website, supersedes all prior agreements,
proposals, communications between the parties and understandings, whether written or oral.