Mitel Networks Corporation
- 3 -
2017 v1
Strata CIX, IPedge, VIPedge, ACD, UCedge, Call Manager, IPMobility
Software EULA
22AUG2017
warranty of non-infringement or otherwise, and Mitel and its
suppliers will have no obligation to defend or indemnify You for
any claims, demands, losses, damages, legal costs or expenses
made against or incurred by You for infringement of any third
party patent, including contributory infringement and
inducement to infringe, with respect to Your use of the Software
and any associated services where such claims of alleged
infringement arise from: (a) the sale or use of the Software
pursuant to this Agreement or the provision of any service
provided by Mitel in combination with any product or service
not owned and developed by Mitel, including without limiting
the generality of the foregoing, the following: (i) call
entitlement features restricting access, or toll free access, to a
call centre, or portion thereof, on the basis of total duration,
number or nature of previous calls; (ii) credit card toll billing for
call access; (iii) synthesized disconnect signals; (iv) calling party
assigned identification numbers, especially DTMF entry of
identification numbers; (v) recording history of caller DTMF
keystrokes; (vi) preventing menu repetition; and (vii)
segregating calls made to both 800 and 900 (or like) numbers
and subsequently billing those calls made to such number(s);
(b) Your alteration or modification of the Software; (c) Your
failure to implement corrections or modifications provided by
Mitel if implementation would prevent the infringement; (d)
Mitel’s implementation of a software design provided by You; or
(e) connection or operation of the Software with or in
conjunction with hardware or software not provided or
authorized by Mitel.
5.3
Mitel will not be responsible for determining whether You
require a license to any third party patents, or obtaining any
such license on Your behalf, or paying any fees relating to any
such license.
5.4 T
HIS
S
ECTION
5
STATES
THE
ENTIRE
LIABILITY
OF
EITHER
Y
OU
OR
M
ITEL
(
AND
ITS
SUPPLIERS
)
FOR
ANY
INFRINGEMENT
OF
INTELLECTUAL
PROPERTY
RIGHTS
COVERED
UNDER
THIS
A
GREEMENT
.
6.0
Limited Warranties
6.1
Mitel warrants that (a) for the Warranty Period, the Software, as
supplied by Mitel in object code form, if properly installed, will
perform substantially in conformance with the Documentation;
and (b) the media on which the Software is stored will be free
from defects in material and workmanship under normal use
and service for a period of 90 days from delivery. Mitel does not
warrant that the Software will be uninterrupted or error-free or
that defects will be corrected.
6.2
In the event that during the Warranty Period the Software fails
to perform substantially in accordance with the Documentation
and materially affects service and/or prevents beneficial use of
the Software, Mitel will use commercially reasonable efforts to
correct the problem within a reasonable period of time. If Mitel
is unable to resolve the problem, Mitel will in its sole discretion,
either: (a) replace the Software, (b) install a new release of the
Software when it becomes generally available, or (c) return the
Software to a prior release. The foregoing is Mitel’s entire
liability and Your sole and exclusive remedy under the above
limited warranty.
6.3
The limited Software warranties provided to You under this
Agreement shall become void if one of the following occurs: (a)
the Software is not used properly in accordance with the
Documentation or is otherwise abused, damaged, or negligently
serviced or maintained by anyone other than Mitel, (b)
maintenance is performed on the Software by anyone not
authorized by Mitel, (c) the Software is not properly installed,
integrated or used in combination with products that are not
approved by Mitel, or (d) You breach a material term of this
Agreement.
6.4
The limited Software warranties provided under this Agreement
are subject to Mitel receiving timely written notice of any
nonconformity with as much specificity as is known and as soon
as You become aware of such nonconformity, but in any event
prior to the expiration of the Warranty Period. Mitel shall have
the right to inspect and test the Software to determine, in its
reasonable opinion, whether the nonconformity is covered
under the Software warranty.
6.5
YOU ASSUME FULL RESPONSIBILITY FOR THE SELECTION OF THE
SOFTWARE TO ACHIEVE YOUR INTENDED PURPOSES, FOR THE
PROPER INSTALLATION AND USE OF THE SOFTWARE AND FOR
VERIFYING THE RESULTS OBTAINED FROM USE OF THE
SOFTWARE. MITEL MAKES NO REPRESENTATION OR
WARRANTY THAT THE SOFTWARE OR DOCUMENTATION WILL
MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE
SOFTWARE WILL BE INTERRUPTION OR ERROR FREE.
6.6
TO THE FULL EXTENT PERMITTED BY LAW, MITEL AND ITS
SUPPLIERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES,
TERMS AND CONDITIONS, WHETHER ORAL OR WRITTEN,
EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR CONDITIONS
OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, OR NON-INFRINGEMENT AND THIS IS SO
ACKNOWLEDGED BY YOU.
6.7
THE SOFTWARE IS NOT DESIGNED, MANUFACTURED OR
INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS
REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE
OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR
COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT
LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS IN WHICH
THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO
DEATH, PERSONAL INJURY, SEVERE PHYSICAL OR
ENVIRONMENTAL DAMAGE.
6.8
IMPORTANT NOTE: Nothing in this Agreement is intended to or
shall be construed as excluding or modifying any statutory
rights, warranties or conditions which may be applicable to this
Agreement, the Software or Documentation, and which by
virtue of any national or state fair trade or other consumer
legislation may not be modified or excluded. To the extent such
legislation is applicable to Your license of the Software or is
required by such legislation, any required warranty is limited in
duration to ninety (90) days from the date of installation and
Mitel and its suppliers’ liability for any breach of any such
warranty or condition shall be and is hereby limited to either: (a)
the replacement of such Software; or (b) the correction of any
defect in such Software or Documentation as Mitel, at its sole
discretion, may determine to be necessary to correct the defect.
All limited warranties are void if failure of the Software has
resulted from Acts of God, accident, abuse, misapplication or
electrical surge or any other cause beyond Mitel's control.
6.9
Mitel does not warrant or represent that the Software is
immune from fraudulent or unauthorised intrusion or use
(including its use to interconnect to long distance networks,
computer virus and/or other malicious code of whatever
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