Avaya Global Software License Terms 052023
Avaya Global Software License Terms 052023
THESE GLOBAL SOFTWARE LICENSE TERMS (“SOFTWARE LICENSE TERMS”) GOVERN THE USE OF SOFTWARE LICENSED THROUGH AVAYA
OR AN AVAYA CHANNEL PARTNER. READ THESE SOFTWARE LICENSE TERMS CAREFULLY, IN THEIR ENTIRETY, BEFORE INSTALLING,
DOWNLOADING OR USING THE SOFTWARE. BY INSTALLING, DOWNLOADING OR USING THE SOFTWARE, OR AUTHORIZING OTHERS TO DO SO,
THE END USER, AGREES THAT THESE SOFTWARE LICENSE TERMS CREATE A BINDING CONTRACT BETWEEN END USER AND AVAYA. IF THE
END USER IS ACCEPTING THESE SOFTWARE LICENSE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE END USER
REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY TO THESE SOFTWARE LICENSE TERMS.
A. Scope. These Software License Terms are applicable to anyone who installs, downloads, and/or uses Software and/or Documentation. These Software
License Terms govern End User’s use of the Software and/ or Documentation except to the extent: (i) End User licensed the Software from Avaya or from an
Avaya Channel Partner and the End User has a separate, written license agreement with Avaya governing the End User’s use of the Software, signed within
three (3) years before the purchase of the applicable Software license, (ii) End User is obtaining the Software from an Avaya Channel Partner and the End
User has an agreement with that Avaya Channel Partner but the End User also has a separate, written agreement with Avaya governing the End User’s use
of the Software, that was signed within three (3) years before the purchase of the applicable Software license, (iii) the Software is accompanied by a Shrinkwrap
License or the Software is governed by Third Party Terms. If the End User has a separate signed purchase agreement with Avaya, such agreement shall take
precedence over these Software License Terms to the extent of any conflict. With respect to third party elements subject to a Shrinkwrap License or other
Third-Party Terms, the Shrinkwrap License or other Third-Party Terms shall take precedence over any signed agreement with Avaya and these Software
License Terms.
In case the End User has a valid agreement in place with Avaya or an Avaya authorized channel partner that can be used to purchase Software, the following
sections from these Software License Terms will not apply and the existing agreement will take precedent (as long as they are included in the existing
agreement): Warranty, Limitation of Liability, International Trade Compliance and Third Party Terms.
B. License Grant. Avaya grants the End User a non-sublicensable, non-exclusive, non-transferable license to use Software and associated Documentation
obtained from Avaya or an Avaya Channel Partner, and for which applicable fees have been paid, for End User’s internal business purposes at the indicated
capacity and features and within the scope of the applicable license types described in the documented posted at http://support.avaya.com/LicenseInfo (or a
successor site) and at locations where the Software is initially installed. Licenses provided under these Software License Terms may be perpetual or if the
license is provided as part of a subscription, the license grant will be limited to the duration specified on the order or subscription Documentation. Documentation
shall be used only in support of the authorized use of the associated Software. Software installed on mobile-devices and clients, such as a laptop or mobile
phone, may be used outside of the country where the Software was originally installed, provided that such use is on a temporary basis only.
C. License Move/Transfer Rights. Notwithstanding the foregoing limitation permitting use of the Software only at the location where it is initially installed,
the End User may move RTUs for certain specified Software from one location to another in accordance with the License Portability Policy.
If End User wants to transfer RTU’s to another Affiliate, End User will have to notify Avaya in writing detailing the name an d address of the new Affiliate and
Avaya can provide a proposal or quote to do so that may include additional fees. Such quote being subject to such new Affiliate agreeing to be bound by
Avaya’s Software License Terms and signing a separate maintenance services agreement for or expanding its maintenance coverage to such new RTUs.
Additional License Transfer Rights applicable to the EU. Notwithstanding the limitations in this Section C (License Move/Transfer Rights) and Section F
(General License Restrictions Below), below, solely to the extent an End User’s resale rights cannot be precluded or restricted by mandatory applicable law,
End Users located in a member state of the European Union may resell licenses subject to the following conditions:
(i) Prior to resale of a license, End User will promptly, but not less than 30 days prior to a resale, notify Avaya in writing of its intention to resell a license.
(ii) Unless expressly agreed otherwise in writing, End User will not be permitted to resell less than its entire license to a buyer.
(iii) End User will resell the Software subject to these Software License Terms and shall ensure that the buyer is bound by these S oftware License
Terms.
(iv) Upon resale of a license, End User shall immediately and permanently cease all use of and destroy all copies of the Software and any related
materials in End User’s possession or control and, upon Avaya’s request, certify such destruction in writing. Avaya may audit End User’s compliance
with the foregoing in accordance with Section K (Compliance) below.
(v) End User will keep appropriate records of all license resale including, but not limited to, the name and location of the buyer and the number and
types of licenses resold.
(vi) End User acknowledges that: (a) resale of a license is subject to any relevant Third Party Terms; (b) maintenance services do not cover system
errors caused by license resale not performed by Avaya; (c) Avaya is not responsible for any programming, administration, design assurance,
translation or other activity to make sure the Software will scale and perform as specified as a result of any license resale, and if any such resale
results in a requirement for Avaya system engineering or requires the use of on-site Avaya personnel, End User will be charged the then applicable
Avaya time and materials rates for such activity; (d) any resale of a maintenance services agreement between Avaya and the or iginal licensee is
subject to Avaya’s prior written approval. Avaya reserves the right to withhold such approval and/or offer the new licensee a maintenance services
agreement subject to different terms and conditions; and (e) if not expressly agreed by Avaya in writing otherwise, the resale of licenses does not
entitle the End User to cancel or partially cancel a maintenance services agreement during the agreed term.
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. End User agrees to protect such information in accordance with Section O (Protection of
Software and Documentation) below and shall use such information only in accordance with the terms and conditions under which Avaya provides such
information. To the extent that the End User is expressly permitted by applicable mandatory law to undertake any activities r elated to achieving interoperability
of an independently created software program with the Software, 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.
D. All Rights Reserved. Avaya or its licensors retain title to and ownership of the Software, Documentation, and any modifications or copies thereof. Except
for the limited license rights expressly granted in these Software License Terms, Avaya or its licensors reserve all rights, including without limitation copyright,
patent, trade secret, and all other intellectual property rights, in and to the Software and Documentation and any derivative works, modifications or copies thereof.
The Software contains trade secrets of Avaya, its suppliers, or licensors, including but not limited to the specific design, structure and logic of individual Software
E. Disclaimer. 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. The End User agrees to notify Avaya immediately upon becoming aware of any
unauthorized use or breach of the End User’s username, password, account, or subscription. The End User is responsible for ensuring that the End User’s
networks and systems are adequately secured against unauthorized intrusion or attack.
F. General License Restrictions. End User may not (i) decompile, disassemble, reverse engineer, reverse translate or in any other manner decode the
Software except as permitted by applicable law; (ii) alter, modify or create any derivative works or enhancements, adaptations, or translations of the Software
or Documentation; (iii) sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Software or Documentation except as expressly authorized
by Avaya in writing, and any attempt to do so is void; (iv) distribute, disclose or allow use of the Software or Documentation, in any format, through any
timesharing service, service bureau, network or by any other similar means, such as hosting or cloud, except as expressly aut horized by Avaya in writing; (v)
allow any service provider or other third party, with the exception of Avaya’s authorized maintenance providers or Avaya Channel Partners who are acting
solely on behalf of and for the benefit of End User, to use or execute any software commands that facilitate the maintenance or repair of any product; (vi) gain
access to or the use of any Software or part thereof without authorization from Avaya; (vii) enable or activate, or cause, permit or allow others to enable or
activate any logins reserved for use by Avaya, Avaya’s authorized maintenance providers or Avaya Channel Partners; (viii) publish the results of any tests run
on the Software; (ix) disclose, provide, or otherwise make available to any third party any trade secrets contained in the Software or Documentation; (x) use
the Software in a virtualized environment except as expressly authorized by these Software License Terms, or (xi) permit or encourage any third party to do
any of the foregoing.
End User agrees not to allow anyone other than its authorized employees, agents or representatives who have a need to use the Software or Documentation
to have access to the Software or Documentation (“Authorized Third Parties”). End User agrees to inform those Authorized Thir d Parties of these Software
License Terms and shall obligate them to comply with such terms and provisions. End User shall be responsible for End User and any authorized third party’s
failure to comply with these Software License Terms 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.
G. Proprietary Rights Notices. End User agrees to retain, in the same form and location, all proprietary legends and/or logos of Avaya and/or Avaya’s
suppliers on any permitted copies of the Software or Documentation.
H. Backup Copies. End User may create a reasonable number of archival and backup copies of the Software and the Documentation.
I. Upgrades. End User’s right to use any upgrades to the Software shall be conditioned upon End User having a valid license to use the original Software
and paying the applicable license or other fee to Avaya or an Avaya Channel Partner.
J. Warranty. Avaya’s Global Product Warranty Policy for End Users, which details a limited warranty for Softwar e and Software media and the applicable
procedures, exclusions, and disclaimers, is available at the following website: https://downloads.avaya.com/css/P8/documents/101063384 (or a successor
site). NEITHER AVAYA NOR ITS SUPPLIERS MAKE ANY WARRANTY, EXPRESS OR IMPLIED, THAT SECURITY THREATS AND VULNERABILITIES
WILL BE DETECTED OR SOFTWARE WILL RENDER AN END USER’S NETWORK OR PARTICULAR NETWORK ELEMENTS SAFE FROM INTRUSIONS
AND OTHER SECURITY BREACHES. Please note that if End User is acquiring the Software from an Avaya Channel Partner outside the United States of
America or Canada, any warranty is provided to End User by the Avaya Channel Partner and not by Avaya.
K. Compliance. Avaya and/or the Avaya Channel Partners have the right to inspect and/or audit (i) by remote polling or other reasonable electronic means
at any time and (ii) in person during normal business hours and with reasonable notice End User’s books, records, and accounts, to determine End User’s
compliance with these Software License Terms, including but not limited to usage levels. In the event such inspection or audit uncovers non-compliance with
these Software License Terms, then without prejudice to Avaya’s termination rights hereunder, End User shall promptly pay Avaya any applicable license fees.
End User agrees to keep a current record of the location of the Software.
L. Termination of License; Effect of Termination/ Expiration. If the End User breaches these Software License Terms and if within ten (10) business days
of Avaya’s written request to cure, the End User has not cured all breaches of license limitations or restrictions, Avaya may, with immediate effect, terminate
End User’s licenses granted without prejudice to any other rights and remedies Avaya may have. Upon termination or expiration of the license for any reason,
the End User must immediately destroy all copies of the Software and any related materials in End User’s possession or control and, upon Avaya’s request,
certify such destruction in writing. The provisions that by their nature, are intended to survive termination will survive any termination or expiration of the
Software License Terms.
M. Third Party Components. End User acknowledges certain software programs or portions thereof included in the Software may include Third Party
Components. As required, information regarding distributed Linux OS source code (for those Products that have distributed Linux OS source code) and
identifying the copyright holders of the Third Party Components that apply is available in the Products, Documentation or on Avaya’s website at:
http://support.avaya.com/Copyright (or such successor site as designated by Avaya).The applicable OSS license will not materially or adversely affect End
User’s ability to exercise rights granted in the applicable Software.
N. Limitation of Liability. EXCEPT FOR PERSONAL INJURY CLAIMS OR WILLFUL MISCONDUCT, AND TO THE EXTENT PERMITTED UNDER
APPLICABLE LAW, NEITHER AVAYA, AVAYA AFFILIATES, THEIR LICENSORS OR SUPPLIERS, NOR ANY OF THEIR DIRECTORS, OFFICERS,
EMPLOYEES, OR AGENTS SHALL BE LIABLE FOR (i) ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, STATUTORY, INDIRECT OR
CONSEQUENTIAL DAMAGES, (ii) ANY LOSS OF PROFITS OR REVENUE, LOSS OR CORRUPTION OF DATA, TOLL FRAUD, OR COST OF COVER,
SUBSTITUTE GOODS OR PERFORMANCE, OR (iii) ANY DIRECT DAMAGES ARISING UNDER THESE SOFTWARE LICENSE TERMS IN EXCESS OF
THE FEES PAID FOR THE SOFTWARE GIVING RISE TO THE CLAIM IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE
CLAIM AROSE. REGARDLESS OF WHETHER THE END USER WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE
POSSIBILITY THEREOF AND REGARDLESS OF WHETHER THE LIMITED REMEDIES FAIL THEIR ESSENTIAL PURPOSE, THESE LIMITATIONS OF
LIABILITY IN THIS SECTION WILL APPLY TO ANY DAMAGES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH
OF CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE.
O. Protection of Software and Documentation. End User acknowledges that the Software and Documentation are confidential information of Avaya and
its suppliers and contain trade secrets of Avaya and its suppliers. End User agrees at all times to protect and preserve in strict confidence the Software and
Documentation using no less than the level of care End User uses to protect its own information of a confidential nature and to implement reasonable security
measures to protect the trade secrets of Avaya and its suppliers.
P. Privacy. When the End User is downloading or using the Software, Avaya might process certain data about the End User, the End User’s network and
the End User’s device (e.g., email address, phone - extension number, device IDs, IP addresses, location, etc.). Avaya will keep End User’s data confidential
Q. High Risk Activities. The Software is not designed, manufactured, or intended for any use in any environment that requires fail-safe performance in which
the failure of the Software could lead to death, personal injury, or significant property damage (“High Risk Activities”). Customer assumes the risk for use of
the Software in any High-Risk Activities.
R. International Trade Compliance. Each Party agrees to conduct its operations in relation to these Software License Terms in compliance with all
International Trade Laws. Each Party shall be responsible for obtaining the necessary authorizations required by international Trade Laws that are applicable
to the Party’s import, export, reexport, in-country transfer or other foreign trade activity in connection with its performance under these Software License Terms.
Each party confirms that they are not engaging in transactions involving comprehensive or selective embargoes, sanctioned countries, and have not been
designated as Denied Parties or Restricted Parties under applicable International Trade Laws unless government authorizations have been obtained. The
Parties agree to not use any Products obtained under these Software License Terms to engage in activities related to weapons of mass destruction, nuclear
proliferation, nuclear, chemical, or biological weaponry, or to permit or facilitate such prohibited uses of Products by a third party.
S. U.S. Government End Users. The Software is classified as "commercial computer software" and the Documentation is classified as "commercial computer
software documentation" or "commercial items," pursuant to 48 CFR FAR 12.212 or DFARS 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 these Software License Terms, and any use of the
Software and/ or Documentation by the Government constitutes agreement to such classifications and t o these Software License Terms.
T. Acknowledgement. End User acknowledges that certain Software may contain programming that: (i) restricts, limits and/or disables access to cer tain
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 bac ked up on an alternative storage
medium after a certain period of time; or (iii) may rely on a third party analytics service to collect and generate aggregated user data whic h Avaya may use to
improve product performance and its functionality. For Google Analytics, please refer to the following website f or more information:
http://www.google.com/policies/privacy/partners/ (or such successor site as designated by Google). By accepting these Software License Terms and continued
use of the Software, service, or subscription, End User consents to the use of such an analytics service to analyze such data.
U. Third Party Terms. Customer may elect to purchase Third-Party Products and Third-Party Services from Avaya, and, in that case, Customer
acknowledges and agrees to be bound by certain Third-Party Terms. In case of a conflict, the Third-Party Terms take precedence over these Software License
Terms only for those Third-Party Products and/or Third-Party Services.
V. Miscellaneous. These Software License Terms and any Dispute, including any issue regarding whether a Dispute is subject to arbitration under 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.
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.
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 above; 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 N (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 the terms of these Software License 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.
If a Dispute arises in the United States or is based upon an alleged breach committed in the United States and cannot be sett led as indicated in the second
paragraph, 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 this Section each party consents t o 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 Software License Terms.
Nothing in this Section will preclude Avaya from seeking monetary damages and remedies from any court of competent jurisdiction for monies owing under
these Software License Terms or any order. If Avaya chooses to commence legal action in a court of competent jurisdiction for the aforesaid purposes, each
party hereby irrevocably (i) waives any objection which it may have to the laying of venue of any legal action brought in such courts or that such legal action
has been brought in an inconvenient forum, and (ii) further waives the right to object with respect to such legal action that any such court does not have
jurisdiction over such party.
Nothing in these Software License Terms will be construed to preclude either party from seeking provisional remedies, including 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 this Section may be enforced by injunction or other equitable order, and no bond or s ecurity of any kind will be required
with respect to any such injunction or order.
Except for actions for non-payment or breach of Avaya’s proprietary rights, actions on Disputes between the parties must be brought in accordance with t his
Section within 2 years after the cause of action arises.
W. 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 anglais.
Defined terms are identified by capitalized letters and have the meaning given in this Exhibit or elsewhere in these Software License Terms. This Exhibit A is
incorporated into and part of the Software License Terms.
“Affiliate” means any entity that is directly or indirectly controlling, controlled by, or under common control with Avaya LLC or End User. 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.
“Avaya” means Avaya LLC or the applicable Avaya Affiliate.
“Avaya Channel Partner” means an Avaya reseller, distributor, direct partner, system integrator, service provider or other partner authorized to provide
Software to End Users in the applicable territory
“Dispute” means any dispute arising out of or relating to these Software License Terms.
“Documentation” means information published in varying media which may include product information, subscription or service descriptions, operating
instructions and performance specifications that are generally made available to users of products. Documentation does not include marketing materials.
“EAR” means Export Administration Regulations.
“End User” means the entity or person authorized to act on behalf of an entity that downloads or uses the Software or authorizes other t o do so.
“High Risk Activities” mean any environment that requires fail- safe performance in which the failure of the Software could lead to death, personal injury
or significant property damage.
“International Trade Laws” means US and all other applicable import, export, re-export, in-country transfer, and other foreign trade control statutes,
laws, regulations, enactments, directives, and ordinances of any governmental authority with appropriate jurisdiction over such International Trade Laws.
“License Portability Policy” means Avaya’s then-current software license portability policy located at
https://support.avaya.com/support/en/helpcenter/GenericDetail/C2009223142629795043 or such successor site as designated by Avaya
“OSS” means Open-Source Software.
“Personal Data” means data that identifies or may be used to identify an individual.
“RTUs” means the rights granted to use the Software.
“Software” means computer programs in object code, provided by Avaya or an Avaya Channel Partner, including software pre- installed on hardware,
and any upgrades, updates, patches, bug fixes, or modified versions thereto.
“Third Party Components” mean: (i) third-party software licensed to you under their own license terms set out at http://support.avaya.com/Copyright;
and/or (ii) OSS not owned by Avaya that is subject to separate license terms as set out at: http//support.avaya.com/Copyright.
“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.
“Third Party Services” means any non-Avaya branded service provided under your agreement with Avaya or an Avaya partner.
“Third Party Terms” mean additional terms and conditions in effect as of the date of an order that apply to Third Party Products and Third-Party Services
and are located at https://support.avaya.com/copyright or its successor site under the applicable product or service name.