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Installation and Sale Terms and conditions
Continuation of the “SALES AGREEMENT”
5. DELIVERY AND INSTALLATION
- a) Smart IP shall complete all negotiations for the purchase for the Equipment, pre-test the Equipment and deliver and install the Equipment FOB the Customer's premises at (the "Premises"). Smart IP shall use all reasonable efforts to complete the installation by the cutover date. The term "Cutover" shall mean the date on which the Equipment is installed and functioning so as to be providing the service for which the Equipment is intended.
- b) Shall provide proper installation and operating conditions, including adequate equipment room, electrical power feed and any special equipment such as conduit and fire retardant cable or other equipment or labor necessitated by the Customer's special needs and not set out in Schedule "A".
- c) Customer shall authorize Smart IP to act on its behalf in co-ordination the installation with the common carrier or utility: Smart IP agrees to co-operate and co-ordinate with common carrier or utility, as required.
- 6. EDUCATION AND TRAINING
- 7. TITLE RETENTION
- 8. RISK OF LOSS
- 9. SECURITY INTEREST
- 10. WARRANTY
- 11. UNCONTROLLABLE CIRCUMSTANCES
- 12. INDEMNIFICATION
- 13. NETWORK ASSESSMENT
- 14. THIRD PARTY SERVICES/SOLUTIONS
- 15. GOVERNING LAW
Maintenance SLA Terms and Conditions
Continuation of Maintenance Agreement
- 6. MAINTENANCE SERVICE OBLIGATIONS OF SMART IP
- 7. OTHER CHARGES
- a) All customers that have purchased Manufacturer Support will be provided patches at no charge for General Availability Software to address corrections or repair and service packs that have also been issued at no charge to Smart IP by the manufacturer. Related labour and travel charges to install such software, patches and service packs shall also be provided free of charge, if work can be performed during regular business hours without interruption to the Customer’s use of the system. In the event that there are software or system performance problems that are service affecting, where the corrective action must be performed outside of regular business hours, there will be no charge to the customer. Should the Customer request work that is not service affecting, be performed outside of regular business hours, Customer will be billed at Smart IP’s prevailing overtime labour rates for the work performed.
- b) All customers where manufacturer support has not been purchased will be provided a time and material option to obtain support. This service will only be provided once the appropriate payment method has been arranged and agreed upon between Smart IP and the customer.
- c) Replacements for Equipment or Software that is deemed “Manufacturer Discontinued” or “End of Life” are subject to availability of “like for like spares”, while Manufacturer’s support is limited to Emergency recovery only in the event of a Total System Failure. If “like for like spares” are unavailable, charges may be applicable.
- d) Repairs to the Equipment required as a result of damage by any unauthorized parties.
- e) Inspection of the Equipment due to Section 12 of this Agreement.
- f) Any other requirement not expressly provided within this Agreement.
- g) Alterations and changes requested by the Customer.
- 8. ADDITIONS, MOVES AND CHANGES, REMOVAL
- 9. UNCONTROLLABLE CIRCUMSTANCES
- 10. GENERAL
- 11. UNAUTHORIZED REPAIRS
- 12. MAJOR REPAIR OR SERVICE
- 13. CO-OPERATION WITH TELCO PROVIDER
- 14. LIMITATION OF LIABILITY
- 15. EXCLUSIONS FROM SERVICE
- 16. DEFAULT AND TERMINATION
- 17. CREDIT TERMS
Service Terms and Conditions
Subscribed recurring services including Hosted Services, Data Services and Carrier Services
1. Terms of service
- a. These services will be provided for pursuant to the sales agreement agreed to by Smart IP and the Customer, and per the period set out in the sales agreement. This Agreement, as it applies to a Service Schedule, will continue as long as any Service Schedule remains in effect.
- b. This Agreement becomes binding on the customer when signed, and the Term for a Service will commence on the date that the Service is activated as determined by Smart IP' records (the “Activation Date”) and shall be automatically renew for successive term(s) equal to a twelve (12) month Term, unless either Party shall have given notice of termination at least 30 days prior to completion of the Term or any renewal thereof
- c. The customer acknowledges and agrees that the Activation Date for the Services must be scheduled at least 5 business days in advance. Failure to provide Smart IP with appropriate notice of a change in scheduled Activation Date(s) may result in additional charges and fees for provisioning the Service, of which Smart IP will notify the customer of prior to rescheduling a new Activation Date.
- d. This Agreement may be:
- i. terminated by either Party without it incurring liability where the other Party commits a material breach of any provision in this Agreement and fails to cure it within thirty (30) days after receipt of written notice of the breach except that in the case of material breach by Smart IP, the customers’ termination right extends only to those Services directly and materially impacted by such breach;
- ii. terminated by either Party effective the end of the then current Term of the Agreement by the terminating Party giving the other Party at least sixty (60) days written notice before the end of the then current Term;
- iii. suspended or terminated by Smart IP without it incurring any liability whatsoever:
- 1. immediately upon Your filing of a bankruptcy petition or similar proceeding under the law of any jurisdiction, or upon Your becoming insolvent or making any assignment for the benefit of creditors, or upon the dissolution, liquidation, or appointment of a receiver of Your property or where any Law prohibits Smart IP from providing Services;
- 2. upon thirty (30) days written notice if customer behaves in a way that is threatening, harassing, abusive or unreasonable to Smart IP, its employees and/or agents;
- 3. upon providing the customer forty-eight (48) hours’ notice where possible, where the customer uses or are reasonably suspected by Smart IP of using the Services in a fraudulent or illegal manner, or the customer fails to meet Smart IP’s credit requirements; or
- 4. upon providing the customer with ten (10) days prior written notice, where the customer fails to make payment in full of all undisputed portions of the customers’ invoice as set forth in Section 2.
- e. The customer acknowledges and agree that termination or suspension of the Services provided under this Agreement for any reason whatsoever does not eliminate the customers’ responsibility to pay all fees and other amounts owed to Smart IP up to the date of termination or suspension without any deduction or right of set off whatsoever. The customer also acknowledges and agrees that Smart IP reserves the right to charge Service and Administration charges upon reactivation of service following suspension or termination.
- f. If the customer terminates this Agreement other than in accordance with the terms of this Agreement, the customer will be required to pay to Smart IP as liquidated damages, and not as a penalty, an amount which is equal to the sum of: (a) fifty percent (50%) of the average monthly usage of each of the Services (where applicable); (b) fifty (50%) of the monthly recurring charge for each of the Services, multiplied by the number of months remaining in the then current Term; (c) a charge equivalent to any Equipment discount the customer received as set out in the Agreement; and (d) any other applicable charges set out in the Agreement. In addition, the customer will be responsible for any other charges that Smart IP, acting reasonably, is liable to incur for the remainder of the then current Term, including without limitation, installation charges, removal costs and rental costs, and the customer will forfeit a refund of any prepayment made for Services.
- a. The customer is responsible for any and all charges (without any right of set-off or deduction) for the Services. The Customer is responsible for paying all calls originating from and charged calls accepted at its telephones and/or equipment, regardless of who made or accepted them. The Customer agrees to pay the rates and charges including any applicable service charges, other nonrecurring charges or feature changes or any other charges for their services in accordance with Smart IPs’ price quote as set out in the applicable Schedule(s) and as outlined in Smart IPs’ monthly invoices. Smart IP reserves the right to change tariff rates should there be a price increase and these rates will be made available to all customers on Smart IP's website.
- b. All monthly services, are to be paid for by either VISA or Mastercard. Hardware, installation setup fees, start-up costs may be paid for on approved credit terms and will be billed at time of order. Any other credit terms or offerings for the customer will be offered at the sole discretion of Smart IP.
- c. All fixed and variable service charges (subscription services) are payable monthly. Notwithstanding anything contained in section 2 and 3, a late payment charge of 1.5% per month, will accrue on any amounts remaining unpaid for thirty (30) days, after the date of any invoice (the “Interest Application Date”) The Customer is responsible for any applicable Provincial, or Federal taxes or similar charges including regulatory recovery fees, universal service fees, 911 fees, and government fees prescribed by the CRTC authorities. The Customer shall be responsible for paying, at any time, a previously unbilled or under billed charge where it is correctly billed from the date it was incurred after it has been correctly invoiced. There shall be no interest payable by the customer for the period prior to the billing date as it pertains to the previously unbilled or under billed charges.
- d. Where Smart IP has reasonable grounds for believing that the Customer intends to defraud Smart IP, Smart IP may demand immediate payment from the Customer. The Customer shall be liable to Smart IP for all reasonable costs and/or expenses incurred; including legal fees, in the collection or attempted collection of any unpaid charges and such amounts shall represent a debt owed by the Customer to Smart IP. Cheques rejected, due to Non-Sufficient Funds, will be subject to a service charge ('NSF Charge'). Smart IP accepts payment by Visa and Mastercard and if the customer chooses to pay by either one of these credit cards, the Customer authorizes Smart IP to charge the total amount of the invoice to the Customer's chosen credit card.
- a. The Customer are responsible for all charges for all Services and the customer agrees to pay the rates and charges for all Services as set out in this Agreement, including system access fee(s), monthly service charges, any restoral fees, airtime, data transfer fees, long distance fees, fees incurred in the course of provisioning Services, and any other charges incurred in using the customers Services, regardless of who used the Services.
- b. The Customer are solely responsible in the event of any charges arising from fraudulent and, or unauthorized use of the Services, without regard to how the fraudulent and, or unauthorized use occurred.
- c. Smart IP reserves the right to change rates for any and all Services upon the provision of thirty (30) days' notice.
- a. Credit terms may be granted for any goods and services not being paid for by credit card, at the discretion of Smart IP, subject to the following:
- b. Smart IP will collect any information from the customer to facilitate credit inquiries about same, and the customer consent to the disclosure of such information from and to credit grantors, credit bureaus and suppliers of services as Smart IP deems appropriate at any time; and
- c. Despite any other provisions of this Agreement, the customers’ outstanding charges for Services will not at any time whatsoever, exceed the approved credit limit, without prior approval by Smart IP; and
- d. Any further credit terms and requirements Smart IP may establish from time to time to satisfy acceptable credit security and grant acceptable credit terms to the customer.
- a. The customer grants Smart IP any such access required (if any) to install, establish, troubleshoot and confirm the agreed to services.
- a. Where required, Smart IP will provide and install equipment, facilities and products, including cables and documentation ("Equipment") to establish and provide the customer with Services. The Customer agrees that the Equipment, and any North American Numbering Plan numbers and/or IP addresses assigned to the Customer will at all times remain the property of Smart IP and the Customer has no right, title or interest in or to the Equipment and any North American Numbering Plan numbers and/or IP addresses assigned to the Customer except for use under this Agreement.
- b. Smart IP will make available software for use ("Software") where required for the Services. All Software made available by Smart IP remains the property of the Software provider, which may be Smart IP, its suppliers or another party as applicable. Use of Software made available by Smart IP is subject to applicable license agreements that must be accepted prior to installation or use of the Software. Unless otherwise stated, license agreements for Software required by Service expire upon cancellation or termination of Service. The Customer is responsible for the installation and operation of all Software made available by Smart IP.
- c. The Customer is solely responsible for the physical security and protection of all Equipment provided for use with the Services. The customer is also solely responsible for the data and network security of Equipment and Software provided for use with the Services where connected to non-Smart IP equipment, software, systems and networks.
- d. The customer is solely responsible for the security and protection of the passwords and credentials for Equipment and Software and the passwords and credentials that are used by the Equipment and Software to provide Services.
- e. The Equipment will be considered to be in good working condition, unless the Customer gives notice to Smart IP to the contrary within five (5) days of receiving the Equipment. The Customer agrees:
- i. to not re-arrange, disconnect, remove, reconfigure or repair any Equipment, including passwords, except by prior written agreement with Smart IP;
- ii. upon deactivation or termination of Services, to return the Equipment immediately to Smart IP in good working condition excluding normal wear and tear. Charges for Equipment will continue and be payable until the Equipment is returned and failure to do so within the time specified by Smart IP will result in Smart IP, at its option repossessing the Equipment at the Customers’ expense or the Customer paying Smart IP the replacement cost of such Equipment; and
- iii. if the Equipment is damaged, lost or stolen while in the Customers’ care, or returned to Smart IP in an unusable condition, to pay the replacement value of the Equipment as determined by Smart IP.
- a. The Parties acknowledge that the existence and the terms of this Agreement and any oral or written information exchanged between the Parties in connection with the preparation and performance this Agreement are regarded as confidential information. Each Party shall maintain confidentiality of all such confidential information, and without obtaining the written consent of the other Party, it shall not disclose any relevant confidential information to any third parties, except for the information that: (a) is or will be in the public domain (other than through the receiving Party’s unauthorized disclosure); (b) is under the obligation to be disclosed pursuant to the applicable laws or regulations, rules of any stock exchange, or orders of the court or other government authorities; or (c) is required to be disclosed by any Party to its shareholders, investors, legal counsels or financial advisors regarding the transaction contemplated hereunder, provided that such shareholders, investors, legal counsels or financial advisors shall be bound by the confidentiality obligations similar to those set forth in this Section, with the exception of such information required to provide the services. Disclosure of any confidential information by the staff members or agencies hired by any Party shall be deemed disclosure of such confidential information by such Party, which Party shall be held liable for breach of this Agreement. This Section shall survive the termination of this Agreement for any reason.
- a. Smart IP provides the Services, Equipment and Software to the Customer on an "as is" basis and disclaims all warranties, whether express, implied or statutory, including, but not limited to, any warranties of merchantability, fitness for a particular purpose, title, quiet enjoyment, accuracy, or system integration. No warranty is made that the Services, Equipment and Software will operate in an error free or uninterrupted manner.
- b. Smart IP will not be responsible for any damages including actual, direct, indirect, incidental, special, consequential, punitive or reliance, or for any lost profits of any kind, even if the damages were foreseeable, arising out of the provision of the Services or in any way arising out of this Agreement. The customers’ exclusive remedy and Smart IPs' liability, if any, for damages for any cause whatsoever, will be no more than the recurring charges paid by the customer for the affected Service for the one (1) month preceding the event alleged to have caused damages. Any legal action arising in connection with this Agreement must be brought within one (1) year after the cause of action arises. For the purpose of this section, "Smart IP" includes its officers, directors, employees, agents and affiliates.
- c. NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, IN THE EVENT YOU SUBSCRIBE FOR SMART IP SERVICES THAT INCLUDE THE CUSTOMER OR IT’S EMPLOYEES OR AGENTS RECORDING INDIVIDUAL TELEPHONE CONVERSATIONS AND/OR COMPUTER SCREEN ACTIVITY, LAWS REGARDING NOTICE AND NOTIFICATION REQUIREMENTS WITH RESPECT TO SUCH RECORDING VARY ACROSS JURISDICTIONS AND THE CUSTOMER AGREES TO BE SOLELY RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE LAWS. SMART IP EXPRESSLY DISCLAIMS ANY LIABILITY WITH RESPECT TO THE CUSTOMERS’ USE OF SMART IP’S SERVICES FOR RECORDING CONVERSATIONS AND YOU HEREBY FULLY RELEASE AND INDEMNIFY SMART IP, TO THE EXTENT PERMITTED BY LAW, FROM ANY AND ALL CLAIMS AND LIABILITY IN RELATION THERETO.
- a. THE CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS SMART IP, ITS AFFILIATES, UNDERLYING CARRIERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE LEGAL FEES, RESULTING FROM THE USE OF THE SERVICES OR FROM ANY BREACH OF THIS AGREEMENT AND ANY SCHEDULE(S) BY THE CUSTOMER EXCEPT AND TO THE EXTENT OF ANY NEGLIGENCE OR MISCONDUCT ON THE PART OF SMART IP. THE PROVISIONS OF THIS SECTION WILL SURVIVE TERMINATION OF THIS AGREEMENT.
- a. The Customer must bring all billing inquiries and billing disputes to the attention of Smart IP, in writing, within thirty (30) days of the invoice date. Failure to do so shall constitute acceptance of the accuracy of the entire contents of the invoice, and the Customer will have no further right to challenge the accuracy of any portion of the invoice. The Customer agrees and acknowledges that the undisputed portion of any disputed invoice and all subsequent invoices shall be paid by the customer on a timely basis or the Service(s) may be terminated by Smart IP.
- a. Customer agrees to maintain industry accepted safeguards over their network infrastructure and to safeguard all security information including passwords used to access Smart IP's systems.
- b. Customer agrees that they will ensure that firewalls, network equipment and systems remain secure and prevent unauthorized access to them. Customer acknowledges that they may receive passwords or usernames via the Internet or through e-mail and will take necessary steps to safeguard that information.
- c. Customer acknowledges that they are responsible for any breach of their security or unauthorized use of their equipment or passwords to access Smart IP's systems and that all telephone calls made by those unauthorized parties will be billable to the Customer's account.
- a. Customer acknowledges and agrees that the Service may not be compatible with certain models or brands of routers, modems or networking equipment.
- b. Customer further acknowledges and agrees that the Service may not be compatible with certain Internet providers, mobile providers, mobile platforms or that those internet providers may choose to block the Services.
- c. Customer agrees that the Service may not be compatible with certain telephony equipment and IP phone equipment. Customer agrees that Smart IP can only provide support and assistance with equipment.
- a. Entire Agreement: This Agreement constitutes the entire agreement between the Parties regarding the provision of Services, and supersedes and replaces all prior agreements and representations whether written or oral with respect to the provision of Services. In the event of conflict between the terms of a quotation and these terms and conditions the terms of the quotation shall govern.
- b. Amendment: You can only amend this main Agreement in writing signed by an authorized representative of Smart IP. This main Agreement can only be amended by a signatory authorized by Smart IP and not by any other Smart IP sales representatives, agents or employees.
- c. Jurisdiction: This Agreement will be governed by the laws of Ontario and the applicable laws of Canada and the Parties agree to be subject to the exclusive jurisdiction of the courts of Ontario.
- d. Independent Contractors: This Agreement will not be construed as constituting either Party as a partner or agent of the other Party or to create a joint venture in the conduct of business or otherwise.
- e. Notices: Any notice or other communication required or permitted by this Agreement will be in writing and be provided by personal delivery, email, or by facsimile to the Customer or Smart IP at the last address or facsimile number provided in writing by each Party. Notices delivered in person will be effective on the date of such delivery and notices delivered by facsimile will be effective on the date of transmission provided printed proof of transmission is obtained.
- f. Force Majeure: Smart IP will not be liable for any failure nor delay in performance to the extent caused by factors beyond its reasonable control, including, without limitation, labour disputes, fires or other casualties, weather or natural disasters, damage to facilities, or the conduct of third parties.
- g. Assignment: You cannot assign this Agreement in whole or in part without Smart IP's prior written consent. Smart IP can assign this Agreement to any affiliate or subsidiary. This Agreement is binding upon and enures to the benefit of the Parties and their respective successors and permitted assigns.
- h. Severability and Waiver: If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, that provision will be deemed severable from the other provisions which will remain valid and enforceable. The terms of this Agreement may only be waived in writing and signed by both Parties. No failure by either Party to insist upon the other Party's performance of any obligations hereunder will constitute waiver unless in writing.
- a. Smart IP’s policy for e911 services shall be governed by Smart IP’s current policy, which can be found at https://www.smartip/legal/e911-services
- b. Any use of hosted services by Avaya’s shall be governed by Avaya’s policies and terms and conditions which can be found at https://www.smartip/legal/Avaya-EULA
- c. All other legal terms and conditions that may govern the business relationship with Smart IP can be found at https://www.smartip.ca/legal
- a. The Agreement, including any applicable DPA, sets forth the entire agreement between us relating to the Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between an executed Order, these Terms, the DPA if applicable, and the Service Descriptions, the conflict will be resolved in that order, but only for the specific Services described in the applicable Order. Nothing contained in any document submitted by you will add to or otherwise modify the Agreement. These terms and conditions may be updated from time to time, and can be reviewed at any time at https://www.smartip/legal/service-terms-and-conditions. The customers continued use and access of the services constitutes acceptance of the then-current terms and conditions.
3. AGREEMENT TERM; TERMINATION; DOWNTIME; SURVIVAL3.1 Agreement Term. These Terms begin when accepted by You below (“the “Effective Date”) and continue until terminated in accordance with Sections 3.2 and 3.3. 3.2 Termination for Cause. Either party may terminate these Terms or any order hereunder if the other party materially breaches these Terms and fails to correct such breach within thirty (30) days of written notice of the breach (without prejudice to Company’s rights as set forth in the AUP and otherwise under contract, equity, statute or otherwise). Without limiting the foregoing, failure to comply with payment obligations constitutes a material breach. If Company terminates under this provision, then in addition to any other rights Company may have, Customer will be responsible for all fees for the Service for the full term of the remaining order, as well as any early termination or cancellation fees (if applicable). 3.3 Termination for Convenience. Customer or Company may terminate these Terms for any reason by providing thirty (30) written notice upon expiration or termination of all Customer’s orders (with the exception of during the Free Trial Period, if applicable, when Customer’s written notice of termination will be effective immediately upon Company’s receipt of Customer’s notice). Individual orders may be terminated for convenience by Customer in accordance with the conditions set forth in these Terms and/or the Service Description, 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 will not be entitled to a refund. 3.4 Expiration/Termination. Upon expiration of the Service Period or termination pursuant to Sections 3.2 or 3.3, Customer shall immediately cease use of the Service and return or destroy (in accordance with Company’s instructions) any deliverables provided to Customer in connection with the Service, including any Company Intellectual Property. Upon request, Customer shall certify in writing that Customer has complied with this provision and Company may provide such certification to its suppliers. Except as provided in Section 3.2, 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 Company the fees for the Service through the effective date of expiration or termination, 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 completion or expiry of the order. 3.5 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) Company shall also be entitled, without incurring any liability to Customer, 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 Company 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 Company determines, in its sole discretion, may create a risk to the applicable Service, to Customer or to any of Company’s other customers if the Service were not suspended; or (iii) in the event that Company determines that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). WITHOUT LIMITATION TO SECTION 9, COMPANY SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY DAMAGE, LIABILITIES, LOSSES (INCLUDING ANY LOSS OF DATA OR PROFITS) OR ANY OTHER CONSEQUENCES THAT CUSTOMER MAY INCUR AS A RESULT OF ANY SERVICE SUSPENSION. TO THE EXTENT COMPANY IS ABLE, COMPANY WILL ENDEAVOR TO PROVIDE CUSTOMER NOTICE OF ANY SERVICE SUSPENSION IN ACCORDANCE WITH THE SERVICE DESCRIPTION AND TO POST UPDATES REGARDING RESUMPTION OF THE SERVICE FOLLOWING ANY SUCH SUSPENSION, BUT SHALL HAVE NO LIABILITY FOR THE MANNER IN WHICH COMPANY MAY DO SO OR IF COMPANY FAILS TO DO SO. 3.6 Survival. The provisions concerning survival, Company’s Intellectual Property rights, disclaimer of warranties, limitation of liability, any indemnification obligations under these Terms in any section of these Terms, Feedback, Confidentiality and Protection, Miscellaneous, and any other terms which, by their nature, are intended to survive termination will survive any such termination of these Terms.
4. CUSTOMER CONTENT AND MARKS4.1 Customer is solely responsible for the content of all 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 (“Customer Content”) and for the consequences of doing so, including any loss or damage to Company, its suppliers or a third party. Company has no responsibility to Customer or to any third party for Customer Content. Customer represents that (a) Customer is the owner of all copyrights and other intellectual property rights in Customer Content or is authorized to access, use, store, archive for a period of time, modify, display, reproduce, prepare derivative works of, and distribute Customer Content; and (b) Company, its suppliers and subcontractors are authorized to do the same to the extent necessary for the purpose of providing the Service. 4.2 As between Company 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. 4.3 Company will not share Customer Content or Other Users’ Content (as defined in Section 4.1) with any third parties unless: (a) Company has Customer written or electronic consent for sharing any of Customer Content and Other Users’ Content; (b) it is required by law; or (c) Company provides Customer Content or Other Users’ Content to third parties (e.g. sub-contractors) to carry out tasks on Company’s behalf (e.g., data storage, etc.) as directed by Company and subject to appropriate agreements with those third parties. 4.4 Customer hereby grants Company a limited, non-exclusive, non-transferable, non-sublicenseable 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.
5. OTHER USERS’ CONTENT5.1 Other Users’ Content. Company does not control and shall have no liability or responsibility for 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 (“Other Users’ Content”). Other Users’ Content may be protected by copyright and other intellectual property rights of such users or other persons. 5.2 Customer represents 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) Company, 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 Company arising from any failure by Customer to comply with Sections 5.2(a) or (b).
6. COMPANY’S INTELLECTUAL PROPERTY RIGHTS6.1 Company Owns Company Intellectual Property. Company 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, “Company Intellectual Property”). Customer shall not copy, modify, rent, lease, sell, loan, distribute, or create derivative works of the Service or any Company Intellectual Property. 6.2 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 Company 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 Company Intellectual Property, the Service, or any software.
7. RIGHTS AND DISCLAIMERS7.1 All information transmitted through the Service is the sole responsibility of the person from whom such information originated. Company is not responsible for and will not be liable in any way for such content. Company 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 Company, in its sole discretion, deems inconsistent with these Terms, including any material Company 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 Company 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 Company’s network, including, without limitation, issuing warnings or disabling or terminating Customer’s Subscription to the Service, accounts or any user’s access to all or part of the Service. Notwithstanding any other provision in these Terms, Company may take the action(s) set forth in Sections 7.1(a) and 7.1(b), or similar actions, without notice or liability to Customer or any other party, although Company will have no obligation or responsibility to take any such action or review material or content posted on the Service. Accordingly, Company assumes no liability for any action or inaction regarding transmissions, communications, or content provided by Customer or any third parties. 7.2 Customer acknowledges that, as part of the Service, Company 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 You, including, without limitation, after expiration or termination of Your Subscription or as may be required by applicable law. To the extent that You wish to retain any Customer Content or Other Users’ Content, You are solely responsible to ensure that such information is downloaded, saved and/or backed-up. Company may also implement reasonable limits as to the size or duration of storage of any Customer Content or Other Users’ Content. 7.3 It is Company’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 Company’s discretion to terminate the accounts or subscription of infringers. If You would like to send Company 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 Company) and follow the instructions on how to get in touch with Company. If You have trouble accessing this link, then You may contact Company for further information at firstname.lastname@example.org with the subject line: “DCMA Takedown Request” or by mail to:
Avaya Copyright Agent Notification
350 Mount Kemble Avenue
Morristown, NJ 07960
8. DISCLAIMER OF OTHER WARRANTIES8.1 TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY PROVIDES NO OTHER WARRANTIES, AND EXPRESSLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE OR ANY SERVICES HEREUNDER, 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 COMPANY, 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.
9. LIMITATION OF LIABILITYEXCEPT FOR CLAIMS OF PERSONAL INJURY, WILLFUL MISCONDUCT, VIOLATION OF COMPANY’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 COMPANY 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 COMPANY HAS BEEN ADVISED OF THE POSSIBIILITY OF SUCH DAMAGES. ALL LIABILITY OF COMPANY, 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 COMPANY 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.
10. INDEMNIFICATION10.1 Company’s Defense and Indemnification Obligations. Company 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. Company 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 Company. Company’s obligations under this Section will not apply if the claim arises or results from (a) Customer’s breach of these Terms (including, but not limited to the AUP), and the Service Description, (b) modification to the Service or use of the Service outside the scope of these Terms, (including, but not limited to the AUP incorporated herein), and the Service Description, (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 Company, (d) non-Company products, software, services, or business processes, (e) Company’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 Company notifies Customer to stop use due to a third party claim, (g) Customer Content or data, Other Users’ Content or any other content not provided by Company, or (h) 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, Company may, at Company’s option, (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 noninfringing without material decrease in functionality. If these options are not commercially reasonably available, at Company’s discretion, Company may terminate the Service upon written notice to Customer and refund Customer any advanced payments for unused subscription rights. 10.2 Your Defense and Indemnification Obligations. Customer will defend Company and its Affiliates, and their respective officers, directors, employees, contractors, suppliers, licensors, partners and agents (each, an “Company Indemnified Party”) against third party claims brought against a Company Indemnified Party arising from (a) Customer’s breach of these Terms (including, but not limited to the AUP), and the Service Description, (b) Customer’s violation of applicable law, (c) Customer Content or 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 indemnify the applicable Company Indemnified Party against all damages finally awarded against the Company Indemnified Party (or the amount of any settlement entered into by Customer) with respect to such claims. 10.3 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 Section 10 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. 10.4 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 COMPANY DISCLAIMS, ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE SERVICE AND ANY OTHER COMPANY INTELLECTUAL PROPERTY.
11. PRIVACY11.1 Definitions. For the purpose of these Terms: (a) “Personal Data” means any information relating to an identified or identifiable natural person (“Data Subject”); 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; (b) “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; (c) “Data Controller” means the natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of Personal Data; (d) “Data Processor” means a natural or legal person, public authority, agency or other body which processes Personal Data on behalf of the Data Controller. For the avoidance of doubt, the foregoing terms shall have the meaning as per the European General Data Protection Regulation (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016) (“GDPR”). 11.2 Processing Personal Data on behalf of Customer 11.2.1 Any Processing of Personal Data by Company under these Terms shall occur only (a) on behalf of Customer (including when Processing is initiated by Customer’s users), (b) in accordance with these Terms, and (c) for the purpose of fulfilment of Customer’s instructions. 11.2.2 Customer’s instructions for the Processing of Personal Data shall comply with applicable data protection laws and regulations. Customer shall have sole responsibility for the legitimacy, adequacy and accuracy of Personal Data and the means by which Customer acquired Personal Data. Provided Company considers an instruction of Customer to violate applicable data protection regulations, it shall notify Customer without undue delay. This does not include an obligation of Company to actively monitor Customer instructions for compliance. 11.2.3 These Terms are Customer’s complete and final instructions at the time of signature of these Terms to Company for the Processing of Personal Data. However, such instructions may be amended, supplemented or replaced by Customer in documented form at any time (new instruction). If such new instructions from Customer exceed the scope of these Terms, they shall be considered as a request to amend these terms, and the parties shall commence good faith negotiation on this change request. 11.2.4 If for any reason Company is unable to comply with any agreed instruction(s), Company will inform Customer of this fact without undue delay. Customer may then suspend the transfer of Personal Data to Company, restrict the access to it, request all Personal Data to be returned to Customer and / or terminate these Terms as per the terms of these Terms. 11.2.5 Customer is responsible as Data Controller for compliance with the applicable data protection laws and regulations, unless the applicable laws and regulations specifically impose an obligation on Company (acting as Data Processor). 11.2.6 Company will Process Personal Data as necessary to provide Services pursuant to these Terms (and as further instructed by Customer in its use of the above). 11.2.7 Company will Process Personal Data for the duration of respective order, unless otherwise agreed upon in writing or required by applicable law. 11.2.8 The categories of Data Subjects affected by the Processing of Personal Data on behalf of Customer within the scope of these Terms result from these Terms and in particular from Customer’s individual usage of Services provided by Company. They typically include: employees, agents, advisors, freelancers and business partners of Customer (who are natural persons); natural persons (employees etc.) of customers and prospective customers of Customer, as well as of Customer customers’ customers, etc. 11.2.9 The types of Personal Data affected by the Processing on behalf of Customer within the scope of these Terms result from these Terms and in particular from Customer’s individual usage of (and input into) Services provided by Company. They typically include: name, contact information (company, title / position, email address, phone number, physical address), connection data, location data, video / call (recordings) data, information concerning family, lifestyle and social circumstances (including age, date of birth, marital status, number of children and name(s) of spouse and / or children) and metadata derived thereof, etc. 11.3 Company’s personnel. Company shall: (a) ensure all employees involved in Processing of Personal Data on behalf of Customer have committed themselves to confidentiality, are prohibited from Processing Personal Data without authorization, have received appropriate training on their responsibilities; (b) appoint in country / global data protection officer, to the extent required by the applicable law, and provide his / her contact details on request to Customer in writing. 11.4 Technical and organizational measures 11.4.1 Company has implemented and shall maintain technical and organizational security measures that are appropriate with respect to the Processing of Personal Data that is undertaken on behalf of Customer. Company shall ensure a level of security appropriate to the risk of varying likelihood and severity for the rights and freedoms of Data Subjects and regularly check their abidance. 11.4.2 Company shall be entitled to modify its technical and organizational measures as long as an at least equivalent level of security appropriate to the risk of varying likelihood and severity for the rights and freedoms of natural persons is maintained. Current technical and organizational measures at Company may be reviewed and accessed via https://www.avaya.com/en/privacy-toms-customers-24778. Additional technical and organizational measures and information concerning such measures may be specified in these Terms and associated documentation. 11.5 Sub-processors (sub-contractors) and international Personal Data transfers. 11.5.1 Company may engage sub-processors (sub-contractors) to Process Personal Data on behalf of Customer. Company shall make sure that at least equivalent data protection obligations, as set out in this DPA, are imposed on all sub-processors Processing Personal Data on behalf of European Economic Area or Switzerland (“EEA / CH”) based Customers by way of a contract or other legal act under European Union or European Member State law, in particular providing sufficient guarantees to implement appropriate technical and organizational measures. 11.5.2 A list of sub-processors that may be engaged by Company while Processing Personal Data on behalf of EEA / CH based Customers can be found via https://www.avaya.com/en/privacy-subcontractors. At least twenty (20) calendar days before Company engages any new sub-processor, Company will update the directory on the website above. Customer is entitled to object to the use of new sub-processor(s) for any Processing of Personal Data on its behalf with a term of ten (10) business days after any new sub-processor is listed on the aforementioned website. This objection shall be sent by e-mail to email@example.com (a) referencing the full legal name (and other credentials) of Customer and these Terms, (b) including the copy of the respective purchase order, and (c) providing the reason for the objection. If Customer exercises his right to objection, Company shall at its choice and sole discretion (a) refrain from using the objected sub-processor to Process Personal Data on behalf of Customer and confirm this to Customer in writing, (b) contact Customer and seek for an agreement on a mitigation of the reason for the objection (if an agreement between the parties is reached, Customer shall revoke the objection), or (c) have the right to terminate these Terms entirely or only with respect to the Processing on behalf of Customer for which the objected new sub-processor shall be engaged. 11.6 For any transfer of Personal Data to a country outside the EEA / CH the requirements of Article 44 GDPR must be fulfilled. 11.6.1 The transfers of Personal Data between Company’s Affiliates shall be governed by the Binding Corporate Rules Policy. The Company’s Binding Corporate Rules Policy is available at www.avaya.com/privacy-BCRprocessor and is incorporated herein by reference. 11.6.2 If Company transfers Personal Data originating from the EEA / CH to third party sub-processors (i.e., Company’s sub-contractors that are not Company’s Affiliates) located in countries outside the EEA / CH that have not received a binding adequacy decision by the European Commission, such transfers shall be subject to (a) the terms of Standard Contractual Clauses (as per European Commission’s Decision 2010/87/EU); or (b) other appropriate transfer mechanisms that provide an adequate level of protection in compliance with the GDPR. 11.7 Requests from Data Subjects. Company shall, in accordance with applicable laws, promptly notify Customer if Company receives a request from Data Subject to exercise his rights, such as: right of access, right to rectification, restriction of Processing, erasure (“right to be forgotten”), data portability, object to the Processing, or right not to be subject to an automated individual decision making, etc. Taking into account the nature of the Processing, Company shall assist Customer by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Customer’s obligation to respond to Data Subject request under data protection laws and regulations. In addition, to the extent Customer, in its use of the Services provided by Company, does not have the ability to address Data Subject request, Company shall upon Customer’s written request assist Customer in responding to such Data Subject request, to the extent Company is legally permitted to do so and the response to such Data Subject request is required under applicable data protection laws and regulations. To the extent legally permitted, Customer shall be responsible for any costs arising from Company’s provision of such assistance. 11.8 Notification and incidents Company shall: 11.8.1 Immediately notify Customer of any actual or alleged incident of unauthorized or accidental disclosure of or access to any Personal Data or other material breach of these Terms by Company or any of its staff, sub-processors or any other third party (the "Security Breach"); 11.8.2 Promptly provide Customer with full cooperation and assistance in respect of any Security Breach and all information in Company's possession concerning the Security Breach, including the following: (a) the possible cause and consequences of the breach; (b) the categories of Personal Data involved; (c) a summary of the possible consequences for the relevant Data Subjects; (d) a summary of the unauthorized recipients of Personal Data; and (e) the measures taken by Company to mitigate any related risk and / or loss or damage or (potential loss or damage); 11.8.3 Not make any announcement or publish or otherwise authorize any broadcast of any notice or information about a Security Breach (the "Breach Notice") without the prior written consent from Customer; and prior written approval by Customer of the content, media and timing of the Breach Notice unless such Beach Notice is mandatory under the applicable law. 11.9 Data protection impact assessment and prior consultation 11.9.1 Upon written request of Customer and subject to reasonable remuneration which shall be subject to a separate agreement, Company shall assist Customer in ensuring compliance with its obligations pursuant to Articles 35 (Data protection impact assessment) and 36 (Prior consultation) GDPR, taking into account the nature of processing and the information available to Company. 11.10 Return and deletion of Customer Personal Data 11.10.1 Personal Data (including any copy of it) shall not be kept longer than is required for the Processing purposes, unless (a) a longer retention period is required by applicable law or (b) Customer instructs Company in writing (i) to keep certain Personal Data longer and Company agrees to follow such instruction or (ii) return or delete certain Personal Data earlier. 11.10.2 The return of any data storage medium provided by Customer to Company shall be conducted without undue delay (a) after termination / expiration of the Processing activity or (b) earlier as instructed by Customer. 11.11 Audits 11.11.1 Upon prior written request by Customer Company shall supply Customer with all information necessary to effectively perform an audit on Company’s compliance with Section 11 of these Terms. 11.11.2 Upon prior written notice and within a reasonable term Company shall grant Customer access to its data Processing facilities, data files and documentation relevant for the Processing activities during its usual business hours without disturbances to the normal course of operations. For clarity purposes Company is not under an obligation to provide Customer with an access to its systems which Process Personal Data of other Company’s customers / partners (Data Controllers). The engagement of a third party auditor to conduct the audit on behalf of Customer shall be subject to Company’s prior written consent, which may only be refused on due cause, and to an executed written confidentiality agreement between the third party auditor, Customer and Company. Customer will provide Company any audit report(s) generated in connection with any audit under this Section 11.11.2. Customer may use the audit report(s) only for the purposes of meeting its regulatory audit requirements and / or confirming compliance with the requirements of these Terms. The audit report(s) shall constitute confidential information of the parties under these Terms. 11.12 Co-operation with law enforcement authorities Company reserves the right to fully cooperate with any law enforcement authorities, regulatory authorities, or court order requesting or directing Company 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 with whom Customer may communicate or otherwise interact via the Service of the foregoing right belonging to Company. 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 COMPANY OR LAW ENFORCEMENT AUTHORITIES. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY RESERVES THE RIGHT TO INVOICE CUSTOMER AN ADMINISTRATIVE FEE TO RECOVER COMPANY’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.
12. FEEDBACKCompany welcomes Customer comments, suggestions, or feedback (collectively, “Feedback”) about the Service. All such Feedback provided by Customer to Company or its authorized channel partners becomes Company’s property and Customer agrees that all intellectual property rights therein are transferred and hereby assigned to Company. Customer agrees to cooperate fully with Company in connection with such transfer and assignment and Company may use such Feedback however it elects without any monetary or other consideration of any kind owed to Customer or any third party.
13. EXTERNAL LINKS AND THIRD PARTY SERVICESIn some cases, the Service may contain hyperlinks to non-Company websites, content, or resources or otherwise interface or work with third party services which are not maintained or controlled by Company (collectively, “External Services and Sites”). Customer’s use of such External Services and Sites is at Customer’s own risk. Customer acknowledges and agrees that Company has no responsibility for the availability, security, or other aspect of External Services and Sites; Company 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. Company 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.
14. CONFIDENTIALITY AND PROTECTION OF SERVICE.14.1 Confidentiality. “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. 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 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. 14.2 Protection of Service. Customer acknowledges that the Service, any deliverables delivered to Customer in connection with the Service, and all other Company Intellectual Property are the property and Confidential Information of Company, its suppliers, and/or its licensors and contain trade secrets of Company, its suppliers, and/or its licensors. Customer agrees at all times to protect and preserve the Service, any such deliverables, and Company Intellectual Property and to implement reasonable security measures to protect the trade secrets of Company, its Affiliates, suppliers, and its licensors.
15. SOFTWARE LICENSE TERMS AND UPDATES15.1 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 Global Software License Terms posted at http://support.avaya.com/LicenseInfo as applicable (or such successor site as designated by Company) 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 or Service Description, and solely for the duration of the Service Period. 15.2 It is possible that software may automatically download and install updates from Company 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.
16. GOVERNING LAW, DISPUTE RESOLUTION16.1 Governing Law. These Terms and any dispute, claim or controversy arising out of or relating to these Terms ( “Dispute”), including without limitation the formation, interpretation, breach or termination of these Terms, or any issue regarding whether a Dispute is subject to arbitration under these Terms, will be governed by California State laws, excluding conflict of law principles, and the United Nations Convention on Contracts for the International Sale of Goods. 16.2 Dispute Resolution. Any Dispute will be resolved in accordance with the provisions of this Section 16. The disputing party shall give the other party written notice of the Dispute in accordance with the notice provision of these Terms. The parties will attempt in good faith to resolve each controversy or claim within thirty (30) days, or such other longer period as the parties may mutually agree, following the delivery of such notice, by negotiations between designated representatives of the parties who have dispute resolution authority. 16.3 Arbitration of Non-US Disputes. If a Dispute that arose anywhere other than in the United States or is based upon an alleged breach committed anywhere other than in the United States cannot be settled under the procedures and within the timeframe set forth in Section 16.2, it will be conclusively determined upon request of either party by a final and binding arbitration proceeding 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), except that if the aggregate claims, cross claims and counterclaims by any one party against the other party exceed One Million US Dollars at the time all claims, including cross claims and counterclaims 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 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 9 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 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 Company and Customer will each bear its 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. 16.4 Choice of Forum for US Disputes. If a Dispute by one party against the other that arose in the United States or is based upon an alleged breach committed in the United States cannot be settled under the procedures and within the timeframe set forth in Section 16.2, then either party may bring an action or proceeding solely in either the Superior Court of the State of California, Santa Clara County, or the United States District Court for the Northern District of California. Except as otherwise stated in Section 16.3 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. 16.5 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 16.3 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. 16.6 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 ten (10) business day period in Section 2.5, Payment Disputes. 16.7 Compliance. Customer and Company will cause their Affiliates to comply with the dispute resolution procedures described in this Section. 16.8 Disputes with Other Users. Customer is solely responsible for Customer’s interactions with third parties with whom it uses the Service to interact. Company will have no liability with respect to such Customer interactions or disputes that may arise between Customer and such third parties. Company reserves the right, but has no obligation, to become involved with disputes between Customer and any such third party in the event that Company’s interests are impacted.
17. RECORDING17.1 Some Services may involve recording and/or monitoring. For those Services, information uploaded to or in any way passing through the Service, including written, visual, or oral communications or other electronic means, may be recorded or monitored for quality assurance, diagnostic, and/or training purposes. By accessing or using the Service, You consent to such recording, monitoring and usage. You are also responsible for informing anyone with whom You interact or otherwise communicate via the Service that information uploaded to or in any way passing through the Service, including written, visual or oral communications or other electronic means, may be recorded or monitored for quality assurance, diagnostic, and/or training purposes. 17.2 Recording of Conferences. If conferences are applicable to the Service You are subscribing to, You acknowledge 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. You acknowledge and agree that You shall be solely responsible for complying with the local laws in the relevant jurisdictions when using recording features (this includes Your obligation to obtain the consent, if required by applicable laws, of all participants before the commencement of the recording). Company shall have no liability to You or any participant in Your recorded conference if such announcement is not made or You fail to comply with applicable laws.
18. MISCELLANEOUS18.1 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. 18.2 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 Company’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 Company’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. 18.3 Notices. 18.3.1 Notices made under this Agreement for You or Your account specifically will be provided to You via a notification message displayed on Your account page or sent to the email address provided in Your registration for the Services or to any updated email address You have provided to Company in accordance with Our standard account information update procedures. It is Your responsibility to keep Your email address current and You will be deemed to have received any email sent to any such email address the next business day upon Our sending of the email, whether or not You actually receive the email. 18.3.2 For notices made by You under this Agreement and for questions regarding this Agreement or the Services, You may contact Company as follows:
by US Postal Mail at
Attn: Director of Contracts
4655 Great America Parkway
Santa Clara, CA 95054 18.4 High Risk Activities. The Service is not designed, manufactured, or intended for any use in any environment that requires fail-safe performance in which the failure of the Service could lead to death, personal injury, or significant property damage (“High Risk Activities”). Customer assumes the risk for use of the Service in any High Risk Activities. 18.5 Force Majeure. Company will not be liable for any delay or failure in performance, including failure of the Service to function or operate, to the extent the delay or failure is caused by events beyond Company’s reasonable control, including, without limitation, fire, flood, Act of God, explosion, war or the engagement of hostilities, strike, embargo, labor dispute, government requirement, civil disturbances, civil or military authority, inability to secure services or materials, transportation or hosting facilities. 18.6 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. 18.7 Miscellaneous. These Terms (including, but not limited to, the AUP and applicable Service Description 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. These Terms may be executed in multiple counterparts, each of which will constitute an original and all of which will constitute but one agreement, subject to local law requirements. These Terms may be executed by electronic signature, which will be binding between the parties as though handwritten. Subject to local law requirements, electronic signature will include either an electronic symbol adopted by a person with the intent to sign these Terms or a photostatic copy of a handwritten signature. Except as otherwise provided herein in Section 2.8, 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 Company as a result of these Terms or use of the Service. Company or its representative may audit at Company’s discretion, Customer’s compliance with these Terms and Customer’s use of the Service, and Customer shall reasonably cooperate with such audit. 18.8 Assignment & Subcontractors. Company may assign these Terms and any order under these Terms to any of its Affiliates or to any entity to which Company 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 any rights or obligations under these Terms without the express written consent of the other party (not to be unreasonably withheld) will be invalid. Company may subcontract any or all of its obligations under these Terms, but will retain responsibility for the work.
Acceptable Use Policy
Any and all use of Smart IP Services is subject to and conditioned upon compliance with the following Acceptable Use Policy (“AUP”). If you have an Agreement with Smart IP, this AUP is incorporated into and made a part of your Agreement with Smart IP.
1. The Services (including any device, system, network, or account used in connection with the Services, or Smart IP) may not be used to:
- a. Illegal activity. Violate any applicable law, including Canadian Federal and Provincial law or regulations, or any applicable law or regulation of any foreign jurisdiction.
- b. Infringing activity. Infringe, misappropriate, or otherwise violate Smart IP’s or anyone’s rights (including intellectual property, privacy, personality, publicity, or otherwise; or display or use Smart IP’s marks without consent or in violation of Smart IP policies.
- c. Auto-dialing; trunking; traffic pumping. Perform auto-dialing or “predictive dialing” in an abusive manner; trunk or forward your Smart IP phone or fax number to other numbers that handle multiple simultaneous calls or to a private branch exchange (PBX) or a key system; traffic pumping or access stimulation of calls through the Services or Smart IP.
- d. Minors. Exploit or harm minors (e.g., expose them to inappropriate content; ask for personally identifiable information without parental consent).
- e. Interference; transmit viruses. Interfere, inhibit, compromise, or otherwise harm the Services or Smart IP (regardless of intent or knowledge); transmit any material that contains viruses, time or logic bombs, Trojan horses, worms, malware, spyware, or any other programs that may be harmful or dangerous.
- f. Objectionable activity. Act in an indecent, offensive, threatening, harassing, defamatory, libelous, fraudulent, malicious, disruptive, tortious, or other objectionable manner; or create a false caller ID identity (i.e., ID spoofing), forge addresses or headers, or otherwise mislead others about a sender’s identity or origin.
- g. Driving; safety. Use while driving or otherwise in an unsafe manner.
- h. Harvest information; spam; bulk messages. Harvest or collect information about third parties or End Users without consent; send bulk communications or other content without the recipient’s consent.
- i. Excessive or unauthorized use. Use any device, system, network, account, plan, or the Services in an unauthorized manner or in excess of reasonable business use.
- j. Circumvent compliance or security. Take advantage of, bypass, exploit, defeat, disable, or otherwise circumvent limitations of the Services, security mechanisms, or compliance with this AUP or any law.
- k. Interception. Intercept, capture, sniff, monitor, modify, emulate, decrypt, or redirect any communication or data for any purpose.
- 2. Resale Prohibited. Customer may not sell, resell, sublease, assign, license, or sublicense the Services or any component thereof or use or offer the same on a service-bureau or time-sharing basis.
- 3. High Risk Use Prohibited. THE SERVICES ARE NOT DESIGNED, MANUFACTURED, INTENDED, OR RECOMMENDED FOR USE FOR ANY HIGH-RISK OR FAIL-SAFE PURPOSE OR ACTIVITY OR IN ANY ENVIRONMENT WHERE FAILURE, INTERRUPTION, MALFUNCTION, ERROR, OR UNAVAILABILITY COULD RESULT IN SUBSTANTIAL LIABILITY OR DAMAGES, PHYSICAL HARM OR PERSONAL INJURY, DEATH OR DISMEMBERMENT, OR PROPERTY OR ENVIRONMENTAL DAMAGE. CUSTOMER SHALL NOT USE THE SERVICES FOR ANY SUCH PURPOSE OR ACTIVITY OR IN ANY SUCH ENVIRONMENT.
- 4. The list above is not exhaustive or exclusive. For purposes of this AUP, “End User” means an individual user of the Services, and may be a natural person, and may include but is not limited to a Customer’s employees, consultants, clients, external users, invitees, contractors and agents. Except as otherwise provided, terms defined in the Agreement have the same meanings when used in this AUP. The Services must be used only in accordance with and subject to Smart IP’s legal terms and conditions and policies, located at https://www.Smart IP.ca/legal and Smart IP’s Privacy Notice, located at https://www.Smart IP.ca/legal/privacy-notice.html.
- 5. Smart IP may act immediately and without notice to suspend or terminate the Services if, in Smart IP’s sole discretion, Customer’s or its End Users’ use of the Services violates the terms of this Acceptable Use Policy.
Providing Goods and Services to People with Disabilities Smart IP is committed to excellence in serving all customers including people with disabilities. Assistive devices We will ensure that our staff are trained and familiar with various assistive devices we have on site or that we provide that may be used by customers with disabilities while accessing our goods or services. Communication We will communicate with people with disabilities in ways that take into account their disability. Service animals We welcome people with disabilities and their service animals. Service animals are allowed on parts of our premises that are open to the public. Support persons A person with a disability who is accompanied by a support person will be allowed to have that person accompany them on our premises. Fees are not charged for support persons. Notice of temporary disruption In the event of a planned or unexpected disruption to services or facilities for customers with disabilities Smart IP will notify customers promptly. This clearly posted notice will include information about the reason for the disruption, its anticipated length of time, and a description of alternative facilities or services, if available. We will notify customers of this by posting a notice in the lobby or main entrance to the office. Training
Smart IP will provide accessible customer service training to employees, volunteers and others who deal with the public or other third parties on our behalf. Training will also be provided to people involved in the development of policies, plans, practices and procedures related to the provision of our goods and services. All employees will be trained including individuals in the following positions: Reception, Customer Service, Sales personnel, Office staff and Technicians. Employees will be trained on Accessible Customer Service within 30 days after being hired.Training will include:
- An overview of the Accessibility for Ontarians with Disabilities Act, 2005 and the requirements of the customer service standard.
- Smart IP’s plan related to the customer service standard. • How to interact and communicate with people with various types of disabilities.
- How to interact with people with disabilities who use an assistive device or require the assistance of a service animal or a support person.
- How to use the equipment or devices available on-site or otherwise that may help with providing goods or services to people with disabilities. These include large print documents, audio headsets and online ordering.
- What to do if a person with a disability is having difficulty in accessing Smart IP’s goods and services. Staff will also be trained when changes are made to our accessible customer service plan. Feedback process Customers who wish to provide feedback on the way Smart IP provides goods and services to people with disabilities can provide feedback in person to VP Finance, by telephone at (905)759-2660 ext. 4427 or email: firstname.lastname@example.org All feedback, including complaints, will be handled in strict confidence and in a timely manner. Customers can expect to hear back within three business days. Notice of availability Smart IP will notify the public that our documents related to accessible customer service, are available upon request by posting a notice in the lobby or main entrance at all our locations and on our website: www.smartip.ca Modifications to this or other policies Any policy, practice or procedure of Smart IP that does not respect and promote the principles of dignity, independence, integration and equal opportunity for people with disabilities will be modified or removed.
Smart IP is one of Canada’s independent business communications leaders, and we continue to be committed to our customers’ best interests, our mutual economic development, and the protection of any and all personal and confidential information collected by Smart IP. Personal Information Collected The information we collect is business based. We may collect personal information as it relates to a customer such as credit information, and such information is provided voluntarily with consent. We collect personal information as it relates to employment at Smart IP, and it is also collected with consent. Protection and Security and Use of Personal Information Any and all private information collected is either stored on our secure servers if in electronic format, or stored in secure locations if in paper format. In either case, both regimes of storage are continually monitored for security. Access is managed and is strictly limited only to those persons who have a requirement and authorization to use such information. Disclosure and Use of Personal Information Smart IP does not sell or distribute personal information to third parties for any commercial, promotional or marketing purposes. Smart IP does not distribute personal information to third parties without your consent. Private information is utilized in the performance of specific tasks relating only to purposes for which the information was collected. Questions or Contact Any questions or concerns regarding this policy can be addressed to our Privacy Officer by telephone at (905)759-2660 ext. 4427, by fax at (905)759-2620 or by email at email@example.com