ATTENTION: THIS IS A LICENSE NOT A SALE. BEFORE DOWNLOADING, INSTALLING OR USING THE MITEL
NETWORKS SOFTWARE, PLEASE CAREFULLY READ THIS LICENSE WHICH CONTAINS THE TERMS
AND CONDITIONS UNDER WHICH YOU OR YOUR ORGANIZATION ARE ACQUIRING A LICENSE TO
USE THE MITEL NETWORKS SOFTWARE, LICENSEE-SPECIFIC ENHANCEMENTS, MODIFICATIONS
OR CUSTOMIZATIONS THERETO (IF ANY) AS DESCRIBED HEREIN, IN OBJECT CODE FORM
ONLY (COLLECTIVELY, THE "LICENSED SOFTWARE"), AND ALL RELATED
USER DOCUMENTATION, INCLUDING LIMITATIONS ON REPRESENTATIONS, WARRANTIES,
CONDITIONS, REMEDIES AND LIABILITIES.
THIS IS A LEGAL
AGREEMENT BETWEEN YOU, THE END USER (OR YOUR ORGANIZATION), (THE "LICENSEE")
AND MITEL NETWORKS CORP. OR ANY ONE OF MITEL NETWORKS' AFFILIATES, OR A MITEL
NETWORKS AUTHORIZED DISTRIBUTOR, AS APPLICABLE ("MITEL NETWORKS").
YOUR ACCEPTANCE
IS EITHER ON YOUR OWN BEHALF OR ON BEHALF OF ANY CORPORATE ENTITY THAT EMPLOYS
YOU OR WHICH YOU REPRESENT. If you are an employee, contractor or
otherwise installing or using this Licensed Software by or on behalf of an
organization or any other third party, you represent and warrant to Mitel
Networks that:
A. You are of
the age of majority in your jurisdiction;
B. You have
all requisite capacity, right, power and authority to accept this license on
behalf of such entity; and
C. Such entity
shall be irrevocably bound by and shall comply with all of the terms and
conditions of this Agreement.
IF YOU DO NOT
ACCEPT THE TERMS AND CONDITIONS OF THE LICENSE, PLEASE DO NOT INSTALL, DOWNLOAD
OR IN ANY WAY USE THE LICENSED SOFTWARE AND PROMPTLY RETURN THE UNOPENED OR
UNINSTALLED LICENSED SOFTWARE, OR ANY HARDWARE OR EQUIPMENT CONTAINING THE
LICENSED SOFTWARE, TO THE PLACE AT WHICH YOU ACQUIRED IT FOR A FULL REFUND OF
ANY LICENSE FEE PAID. IF YOU OPEN THE
LICENSED SOFTWARE OR INSTALL, DOWNLOAD OR USE IT, YOU WILL BE ACQUIRING A
LICENSE TO USE THE LICENSED SOFTWARE IN ACCORDANCE WITH THE TERMS AND
CONDITIONS OF THIS AGREEMENT. YOU WILL
BE CONSIDERED TO HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS.
NOW THEREFORE in
consideration of the mutual covenants and obligations contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Mitel Networks and Licensee agree as follows:
1. Interpretation
1.1. Definitions
In this
Agreement, unless the context otherwise requires, the following expressions
shall have the meanings indicated below:
"Affiliate"
shall mean with respect to a company, any corporation, partnership or
other entity that, directly or indirectly, owns, is owned by, or is under
common ownership with such company for so long as such ownership exists. For the purpose of the foregoing, "own",
"owned" or "ownership" shall mean holding ownership of, or the right to vote,
more than fifty (50) percent of the voting stock or ownership interest entitled
to elect a board of directors or comparable managing authority;
"Agreement"
shall mean this agreement and any Schedule attached to this Agreement as the
same may be amended from time to time in accordance with the provisions hereof;
"hereof", "hereto" and "hereunder"
and similar expressions mean and refer to this Agreement and not to any
particular article or section; "Article" or "Section"
means and refers to the specified article or section of this Agreement;
"Business
Day" shall mean any day other than a Saturday, Sunday or statutory or
civic holiday of the Province of Ontario;
"Confidential
Information" shall mean the Licensed Software and any information which
is confidential in nature or that is treated as being confidential by Mitel
Networks and that is furnished or transferred by or on behalf of Mitel Networks
to the Licensee. Confidential Information disclosed in tangible or electronic
form may be identified by Mitel Networks as confidential with conspicuous
markings, or otherwise identified with a legend as being confidential, but in
no event shall the absence of such a mark or legend preclude disclosed
information which would be considered confidential by Licensee exercising
reasonable business judgment from being treated as Confidential Information by
Licensee;
"Documentation"
shall mean any user manuals or online help provided with Licensed Software;
"Effective
Date" shall mean the date of installation by Licensee;
"Intellectual
Property Rights" shall mean any proprietary right, including but not
limited to those provided under: (i) patent law; (ii) copyright law; (iii)
trade-mark law; (iv) design patent or industrial design law; (v) semi-conductor
chip or mask work law; or (vi) any other statutory provision or common law
principle that may provide a right in either: (a) ideas, formulae, algorithms,
concepts, inventions, or know-how; or (b) the expression of such ideas,
formulae, algorithms, concepts, inventions or know-how.
"License
Fees" shall mean the fees paid to Mitel Networks' authorized
distributor in respect of the Licensed Software;
"Open
Source Software" means any software components or other material
that is provided or downloaded with the Licensed Software (including any modification, translation or
adaptation or any other improvement or development of the foregoing) which may be identified in one or more of the installed
Licensed Software directory, through a URL link, Documentation or Mitel
Networks' web site (i) that is distributed as "free software", "open source
software" or under a similar licensing or distribution model (including but not
limited to the GNU General Public License (GPL), GNU Lesser General Public
License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic
License, the
Netscape Public License, the Sun Community Source License (SCSL), the Sun
Industry Standards License (SISL)
and the Apache License).
"Parties"
shall mean Mitel Networks and Licensee collectively and "Party"
means either of them;
"Person"
shall mean any individual, corporation, partnership, joint venture, trust,
unincorporated organization, the Crown or any agency or instrumentality thereof
or any other judicial entity recognized by law;
"Licensed
Software" shall mean the software you are installing for which you have been given an access key by Mitel Networks or
its authorized distributor or its licensor;
"Term"
shall have the meaning set out in Section 8.1; and
"Authorized
IP Telephone Sets" shall mean the Mitel Networks telephone sets which have been licensed
to access the Licensed Software through a
network according to an access key issued by Mitel Networks or its authorized
distributors or its licensors.
1.2. Headings
The division of
this Agreement into sections and the insertion of headings are for convenience
of reference only and are not to affect the construction or interpretation of
this Agreement.
1.3. Extended
Meanings
Unless otherwise
specified, words importing the singular include the plural and vice versa and
words importing gender include all genders.
1.4. Entire
Agreement
This Agreement
(including the documents and instruments referred to herein and the schedules
and exhibits hereto) supersedes all prior representations, arrangements,
negotiations, understandings and agreements between the parties, both written
and oral, relating to the subject matter hereof and sets forth the entire and
complete and exclusive agreement and understanding between the parties hereto
relating to the subject matter hereof.
The terms of this Agreement may not be changed except by an amendment
signed by an authorized representative of each Party. No provisions in any purchase orders, or in
any other documentation employed by or on behalf of You in connection with this
Agreement, regardless of the date of such documentation, will affect the terms
of this Agreement, even if such document is accepted by the receiving party,
with such provisions being deemed deleted.
1.5. Currency
Unless otherwise
indicated, all dollar amounts referred to in this Agreement are in lawful money
of the United States of
America.
1.6. Severability
If any term or
provision of this Agreement is held to be illegal or unenforceable, the
validity or enforceability of the remainder of this Agreement shall not be
affected.
1.7. Choice
of Language
The Parties
confirm that it is their wish that this Agreement as well as all other
documents relating to this Agreement, including notices, be drawn up in English
only. Les parties aux présentes
confirment que c'est leur volonté que la présente convention de
même que tous les documents, y compris les avis, s'y rattachant, soient
rédigés en anglais seulement.
1.8. Choice
of Law
This Agreement
shall be governed by and construed in accordance with the laws of the Province
of Ontario, Canada. This Agreement
expressly excludes that body of law applicable to choice of law and the United
Nations Convention on Contracts for the International Sale of Goods and any
legislation implementing such Convention, if otherwise applicable. Licensee hereby consents and attorns to the exclusive
jurisdiction of the courts of such province.
If either Party employs attorneys to enforce any rights arising out of
or relating to this Agreement, the prevailing Party shall be entitled to
recover reasonable attorney's fees. Each
Party waives any right, and agrees not to apply to have any disputes under this
Agreement tried or otherwise determined by a jury, except where required by
law.
2. Grant
of License
2.1. Permitted
Use
Subject to all
of the terms and conditions of this Agreement and in consideration of the License
Fees paid, Mitel Networks hereby grants to Licensee a, limited, personal,
non-transferable and non-exclusive license to use:
(a) the Licensed Software, solely in
executable object code format and solely on a single computer, to be accessed
solely by Authorized IP Telephone Sets; and
(b) the Documentation provided
therewith,
solely for
Licensee's own personal / internal business purposes.
If Licensee wishes
to use the Licensed Software on additional computers, Licensee agrees to obtain
a separate license for each. Licensee
shall not use the Licensed Software or Documentation, in whole or in part, on
behalf of or for the benefit of any other person except as expressly provided
herein.
2.2. Restrictions
on Use
Licensee shall
not (except as otherwise expressly permitted in this Agreement with respect to
Open Source Software):
(a) Copy the Licensed Software except to
copy it onto a hard disk attached to the single computer being used by Licensee
and to make one copy of the Licensed Software solely for backup purposes;
(b) Copy any of the Documentation for
any purpose;
(c) Rent, lease, assign, sell, license,
sublicense, market, distribute, re-distribute, or transfer the Licensed
Software or Documentation in any manner or in any form not expressly permitted
by this Agreement;
(d) Alter, modify the Licensed Software,
create derivative works of the Licensed Software or any functionally compatible
or competitive software, or merge all or any part of the Licensed Software with
another program;
(e) Separate the component parts of the
Licensed Software for use on more than one computer;
(f) Use the Licensed Software for
commercial time sharing, rental or service bureau use
(g) Network the Licensed Software or
otherwise use it except as may be expressly provided for in this Agreement;
(h) Translate, reverse engineer,
decompile, disassemble, or otherwise attempt to derive the source code from all
or any part of the Licensed Software except to the extent applicable law
expressly prohibits the foregoing restriction; or
(i) Use the Licensed Software or
Documentation except as authorized herein.
Licensee shall
take all reasonable precautions to prevent third parties from using the
Licensed Software or Documentation in any way that would constitute a breach of
this Agreement including, without limitation, such precautions as Licensee
would otherwise take to protect its own proprietary software or hardware or
information.
3. Maintenance
and Support
Licensee may
obtain maintenance services by entering into a separate maintenance services
agreement with Mitel Networks.
4. Intellectual
Property
4.1. Intellectual
Property Ownership
The Licensed
Software is licensed, not sold. Licensee
acknowledges that Mitel Networks or its Licensors are the owner of all
Intellectual Property Rights in the Licensed Software and Documentation,
related written materials, logos, names and other support materials (excluding
Open Source Software) provided pursuant to the terms of this Agreement,
including, but not limited to, any modification, translation or adaptation or
any other improvement or development of the foregoing, or is authorized to
license such rights. All Intellectual
Property Rights, in and to the Licensed Software shall, at all times, remain with
Mitel Networks or its licensors.
Licensee shall
acquire no right whatsoever to all or any part of the Licensed Software except
the right to use the Licensed Software in accordance with the terms of this
Agreement and Mitel Networks and its licensors reserve all rights not expressly
granted to Licensee. Physical copies of
the Licensed Software remain the property of Mitel Networks. Licensee must fully reproduce any copyright
or other notice marked on any part of the Licensed Software or Documentation on
all authorized copies and must not alter or remove any such copyright or other
notice.
5. Confidentiality
5.1. Confidential
Information
Licensee
agrees to keep confidential
any and all Confidential
Information with respect to Mitel Networks which it has received or may in the
future receive in connection with this Agreement and shall only disclose such Confidential
Information (i) to its agents, employees or representatives who have a need to
know such information, for the purpose of performance under this Agreement and
exercising the rights granted under this Agreement and who have entered into a
non-disclosure agreement at least as protective of Mitel Networks' Confidential
Information as this Agreement, or (ii) to the extent required by applicable law
or during the course of or in connection with any litigation, arbitration or
other proceeding based upon or in connection with the subject matter of this
Agreement, provided that the Licensee shall give Mitel Networks reasonable
notice prior to such disclosure and shall comply with any applicable protective
order or equivalent. Licensee agrees to
hold Mitel Networks' Confidential
Information in confidence and to take all reasonable steps, which shall be no
less than those steps it takes to protect its own confidential and
proprietary information, to protect the Confidential
Information of Mitel Networks.
5.2. Exclusions
Obligations of
non-disclosure will not apply to Confidential Information which the Licensee
can conclusively establish (i) was in the possession of the Licensee without an
obligation of confidentiality at the time of disclosure; (ii) prior to or after
the time of disclosure became part of the public domain without the act or
omission of the Licensee; (iii) was disclosed to the Licensee by a third party
under no legal obligation to maintain the confidentiality of such information;
or (iv) was independently developed by the Licensee without use or reliance
upon the Confidential Information, and which such independent development can
be established by evidence that would be acceptable to a court of competent
jurisdiction.
6. No Warranties
6.1. Warranty
disclaimer
TO
THE GREATEST EXTENT PERMITTED BY LAW, THE LICENSED SOFTWARE ARE LICENSED BY MITEL
NETWORKS TO LICENSEE "AS IS" AND THERE ARE NO WARRANTIES, REPRESENTATIONS
OR CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE,
OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THE
LICENSED SOFTWARE OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER OR IN
CONNECTION HEREWITH. MITEL NETWORKS, ITS
LICENSORS AND SUPPLIERS DISCLAIM ANY IMPLIED WARRANTY OR CONDITION OF
MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE OR NON-INFRINGEMENT.
MITEL
NETWORKS DOES NOT REPRESENT OR WARRANT THAT THE LICENSED SOFTWARE SHALL MEET
ANY OR ALL OF LICENSEE'S PARTICULAR REQUIREMENTS, THAT ALL ERRORS OR DEFECTS IN
THE LICENSED SOFTWARE CAN BE FOUND OR CORRECTED.
7. Limitations
7.1. Limitation
of Remedies
TO
THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MITEL
NETWORKS OR ITS LICENSORS OR EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYES AND AGENTS BE LIABLE FOR ANY
DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT,
INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL OR OTHER DAMAGES
INCLUDING WITHOUT LIMITATION, FOR LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF REVENUE, LOST OR DAMAGED DATA, LOSS
OF COMPUTER TIME, COST OF SUBSTITUTE GOODS OR SERVICE, OR FAILURE TO REALIZE EXPECTED
SAVINGS) WHETHER IN CONTRACT OR IN TORT (INCLUDING FUNDAMENTAL BREACH OR
NEGLIGENCE) OR UNDER ANY OTHER LEGAL THEORY, ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
LOSS OR DAMAGES, OR SUCH LOSSES OR DAMAGES ARE FORESEEABLE. IF THE TERMS OF THIS SECTION 7.1 ARE HELD TO
BE INVALID, ILLEGAL OR UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, MITEL
NETWORKS' AND ITS LICENSORS' SOLE LIABILITY AND LICENSEE'S EXCLUSIVE REMEDY
SHALL BE TO RECEIVE PAYMENT FOR ACTUAL AND DIRECT DAMAGES TO A MAXIMUM AMOUNT
EQUAL TO THE PRICE PAID FOR THE LICENSED SOFTWARE.
7.2. Basis
of Bargain
The limited
warranty, exclusive remedies and limited liability set out herein are
fundamental elements of the basis of the bargain between Mitel Networks and
Licensee. Licensee acknowledges and
agrees that Mitel Networks would not be able to provide the Licensed Software
for the fees charged without such limitations.
8. Term
and Termination
This Agreement
shall remain in effect from the Effective Date until Licensee ceases all use of
the Licensed Software and provides written notice to Mitel Networks of same, or
until terminated in accordance with this Section 9.
8.2. Termination
Mitel Networks may
terminate this Agreement as follows:
(a)
effective
immediately in the event of Licensee's failure to comply with any of the
provisions of this Agreement if after thirty (30) days written notice such
failure remains uncured;
(b)
effective
immediately upon receipt of written notice to that effect if Licensee has
breached its obligations of confidentiality or any Intellectual Property Right
of Mitel Networks; or
(c)
effective
immediately upon receipt of written notice to that effect if Licensee (i)
becomes insolvent; (ii) becomes the subject of any proceeding under any
bankruptcy, insolvency or liquidation law, whether voluntary or involuntary,
which is not resolved favourably to the Licensee within ninety (90) days of commencement thereof; or (iii) has a
receiver appointed in respect of the whole or a substantial part of the
Licensee's assets
8.3. Effects
of Termination
Upon termination
by Mitel Networks, Licensee shall immediately:
(a) Purge all Licensed Software from all
computer systems, storage media, and any and all other devices and files with
which the Licensed Software is used;
(b) Return to Mitel Networks all copies
(including any partial copies) of the Licensed Software and related
Documentation;
(c) If requested by Mitel Networks,
certify to Mitel Networks in writing that Licensee has complied with the
foregoing obligations and have not provided total or partial copies of the
Licensed Software or Documentation to any third party;
(d) Remit all payments due and owing
hereunder; and
(e) Return or destroy (at Mitel Networks'
discretion) all Confidential Information and all copies, summaries and extracts
thereof, retaining no copies or partial copies.
8.4. Survival
Sections 1
(Interpretation), 2.2 (Restrictions), 4 (Intellectual Property), 5 (Confidentiality),
6 (No Warranties), 7 (Limitations) 8.3 (Effects of Termination), 8.4
(Survival), 9 (Open Source Software), 10 (General) and any other provision of
this Agreement which is required to ensure that the Parties fully exercise
their rights and their obligations hereunder shall survive any termination or
expiration unless and until waived expressly in writing by the party to whom
they are of benefit.
9. Open
Source Software
9.1. Open Source Software
Open Source
Software is free software. Licensee can
distribute it and/or modify it under the terms of the applicable Open Source
Software licenses.
9.2. Open
Source software licenses
OPEN SOURCE
SOFTWARE ARE SUBJECT TO THE APPLICABLE OPEN SOURCE SOFTWARE LICENSES, AND ANY
WARRANTIES, INDEMNITIES AND LIMITATIONS OF LIABILITIES FOR SUCH OPEN SOURCE
SOFTWARE CONTAINED THEREIN. LICENSEE
ACKNOWLEDGES AND AGREES THAT IT WILL BE BOUND BY THE OPEN SOURCE SOFTWARE
LICENSES.
10. General
10.1.
EQUITABLE
RELIEF
Licensee
acknowledges and agrees that it would be difficult to compute the monetary loss
to Mitel Networks arising from a breach or threatened breach of this Agreement
by Licensee and that, accordingly, Mitel Networks will be entitled to specific
performance, injunctive or other equitable relief in addition to or instead of
monetary damages in the event of a breach or threatened breach of this
Agreement by Licensee.
10.2.
U.S. Government End-Users
The Licensed
Software (i) was developed exclusively at private expense; (ii) is a trade
secret of Mitel Networks for all purposes of the Freedom of Information Act;
(iii) is "commercial computer software" subject to limited utilization
(Restricted Rights); and (iv) including all copies of the Licensed Software, in
all respects is and shall remain proprietary to Mitel Networks or its
licensors. Use, duplication or disclosure by the U.S. Government or any person
or entity acting on its behalf is subject to restrictions for software
developed exclusively at private expense as set forth in: (i) for the DoD, the
Rights in Technical Data and Computer Software clause at DFARS 252.227-7013
and/or 252.227.7014 or any successor clause, and (ii) for all government agencies,
the Commercial Computer Software - Restricted Rights clause at FAR 52.227-19 or
any successor clause. The U.S. Government must refrain from changing or
removing any insignia or lettering from the Licensed Software or from producing
copies of the Licensed Software and manuals (except one copy of the Licensed
Software for backup purposes). Use of the Licensed Software shall be limited to
the facility for which it is acquired. All other U.S. Government personnel
using the Licensed Software are hereby on notice that use of the Licensed
Software is subject to restrictions that are the same as, or similar to, those
specified above. The manufacture/owner
is Mitel's licensor, InGenius Software Inc., 350 Legget Drive, Ottawa, Ontario Canada K2K
2W7.
10.3.
Notice
Any notice or
communication pertaining to this Agreement shall be deemed to have been duly
given by a Party hereto if served upon the other or if sent to the other by
overnight delivery service or registered mail to the address shown below or to
any new address previously provided or published by either Party.
Notices made to Mitel
Networks under this Agreement shall be addressed to:
Mitel Networks Corp.
350 Legget Drive,
Ottawa, Ontario
Canada K2K 2W7
10.4.
Waiver
Either Party's
failure to exercise any of its rights under this Agreement shall not constitute
or be deemed to constitute a waiver or forfeiture of such rights.
10.5.
Assignment
Licensee may not
assign any rights or obligations under this Agreement without the prior written
consent of Mitel Networks and any attempted assignment or transfer of any of
the rights, duties or obligations herein shall be void. This Agreement shall be binding upon and
inure to the benefit of and be binding on the Parties, their successors and
permitted assigns.
10.6.
Binding on Successors
This Agreement
shall be binding upon and inure to the benefit of the Parties hereto and, to
the extent permitted hereunder, their respective successors and permitted
assigns.
Important notice: This is a
license, not a sale. This END USER License
Agreement is a legal contract between you (or your organization), THE LICENSEE,
and Mitel Networks for the LICENSED software.
By clicking on "I accept" below, Licensee shall be deemed by Mitel
Networks to have irrevocably agreed to be bound by and comply with all of the
terms and conditions of this Agreement.
If Licensee does not agree with the terms and conditions of this
Agreement, click "I reject", and do not install or use the Licensed
Software. Licensee's installation or use
of the Licensed Software shall be deemed by Mitel Networks to be Licensee's
irrevocable consent to be bound by and comply with all of the terms of this
Agreement.
If you are an employee, contractor or otherwise installing or using this
Licensed Software by or on behalf of an organization or any other third party,
you represent and warrant to Mitel Networks that:
A. You are of
the age of majority in your jurisdiction;
B. You have
all requisite capacity, right, power and authority to accept this license on
behalf of such entity; and
C. Such entity
shall be irrevocably bound by and shall comply with all of the terms and
conditions of this Agreement.