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.