END USER LICENSE AGREEMENT-LIVE BUSINESS

END USER LICENSE AGREEMENT-LIVE BUSINESS GATEWAY 3.5 or higher
CAREFULLY READ THE FOLLOWING AGREEMENT. INSTALLATION AND USE OF THE SOFTWARE
CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS
AGREEMENT PROMPTLY REMOVE THE SOFTWARE AND ALL COPIES FROM YOUR SERVER. LAWFUL USE OF
THE SOFTWARE IS CONDITIONAL UPON YOUR COMPLIANCE WITH THE TERMS OF THIS AGREEMENT.
1.0 Definitions
"Agreement" means this End User License Agreement.
"Documentation" means the end user reference and operating manuals that MITEL and its suppliers publish relating to
the Software, excluding documentation subject to the GNU Free Documentation License or other free documentation
license that permits reproduction.
"Mitel" means Mitel Networks Corporation, on its own behalf and on behalf of its subsidiaries, 350 Legget Drive, Ottawa,
Ontario, Canada K2K2W7; CMG@mitel.com.
“Open Source Software” means any software components which are subject to the GNU General Public License or
other open source licenses that is provided or downloaded with the Software (which may also be identified in one or
more of the installed software directory, through a url link, on the software kit, Documentation or applicable web site of
Mitel), and any and all copies, modifications, upgrades, enhancements and new releases made or acquired by You.
Any software components that are not expressly identified as open source software by Mitel is Software.
"Software" means the LIVE BUSINESS GATEWAY FOR MICROSOFT OFFICE COMMUNICATIONS SERVER 2007
or higher, LIVE BUSINESS GATEWAY, all setup, installation and configuration software, together with any related
software downloaded by You including through the Mitel Networks Application Management Center (the “Mitel AMC”) or
other similar Mitel service, and includes any and all copies, modifications, updates, upgrades, firmware, enhancements
and new releases of the Software. Software excludes any Open Source Software.
“Software License Key” means a string of characters that must be input into the Software when it is installed, or prior to
being downloaded by You in order to activate it for use with a specific system configuration and which needs to be
entered whenever the Software is upgraded or moved to a new hardware platform.
“Warranty Period” means ninety (90) days from the earlier of the date (a) You purchase the license for the Software or
(b) the Software is Delivered to You. “Delivered” means, (a) for Software provided to You that is stored on CD-ROM,
DVD, portable memory stick or device, flash drive, or on any other portable “hard” media device (“Media”), from the date
on which the Media on which the Software is stored is delivered to You, and (b) for Software that is downloaded by You
or on Your behalf from a Mitel authorized site, the date on which the Software is downloaded.
"You" and "Your" refers to any person or entity that acquires or uses the Software or Documentation.
Mitel Networks Corporation
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2.0
Grant of License
2.1
Upon payment of the applicable license fee for the Software, Mitel grants to You a non-exclusive, nontransferable license to use the Software and Documentation solely for the following purposes:
if for server install: to install and operate the Software on one server only for use by (i) the number of managed
systems for which licenses have been paid; and (ii) the number and type of applications and features for which
application and feature licenses have been paid; OR
if for virtual server install: to install and operate a single instance of the Software in a virtual environment only
for use by the number and type of applications and features for which application and feature licenses have
been paid.
2.2
Use of the Software may be subject to the issuance of a Software License Key, which will be conveyed to You
upon payment of the applicable license fees for the Software, including any extensions thereof.
2.3
Except as expressly permitted in this Agreement, and/or to the extent that Mitel is not legally able to restrict
You under the applicable law and then only after notice to Mitel, You will not Yourself or allow anyone else to:
(a) disassemble, reverse engineer, decompile or otherwise attempt to discover the source code or structural
framework of the Software; (b) translate, modify, or create any derivative work of the Software or
Documentation; (c) disclose, publish, sublicense, sell, lend, rent, lease or transfer the Software and
Documentation; (d) copy the Software onto any public or distributed network; (e) use the Software to operate
in or as a time-sharing, outsourcing, service bureau, application service provider or managed service provider
environment; or (f) copy or reproduce the Software or Documentation. Notwithstanding the above, You may
transfer all (but no lesser portion) of the Software and Documentation to another person subject to this
Agreement with the prior written approval of Mitel.
2.4
This license will terminate automatically (a) if You use or permit the use of the Software or Documentation in
any manner not permitted by this Agreement; (b) if a bankruptcy or insolvency proceeding is filed by or against
You; (c) if You make an assignment for the benefit of creditors; or (d) an event or proceeding analogous to
those set out at paragraphs (b) and (c) above occurs or takes place in any jurisdiction. Upon termination, You
will immediately, as directed by Mitel, either return the Software and Documentation and all copies You have
made, including without limitation modifications and merged portions in any form, to Mitel or destroy all copies
of the Software and Documentation and certify such destruction in writing to Mitel.
3.0
Proprietary Rights
3.1
The Software and Documentation comprises valuable patent, copyright, trade secret, trademark, mask work
and other proprietary rights of Mitel and its suppliers. Mitel and its suppliers reserve all such rights. No title to
or ownership of the Software or Documentation or any right therein other than expressly set out herein is
transferred to You. You will not infringe any proprietary right of Mitel or its suppliers and will take appropriate
steps for the protection of such rights. You will not remove, obscure or alter any notice of patent, copyright,
mask work, trademark, trade secret or other proprietary rights relating to or appearing anywhere on any of the
Software or Documentation, irrespective of whether any of the foregoing is registered or unregistered. You
must reproduce all copyright notices on any copy of the Software and Documentation. The Software and
Documentation is copyrighted by Mitel Networks Corporation © 2003-2014, All Rights Reserved. This Software
product may also contain copyright material licensed from third parties, all rights to such copyright material rest
with the copyright owners. You shall hold the Software and Documentation in confidence and protect them
from disclosure to persons other than your employees to whom disclosure is required on a "need to know
basis". Your confidentiality obligations do not extend to any information relating to the Software or
Documentation which is now available to the general public or becomes so available by reason of any acts or
omissions not attributable to You.
Mitel Networks Corporation
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4.0
Open Source Software
4.1
Open Source Software is free software. You can redistribute it and/or modify it under the terms of the
applicable GNU General Public License as published by the Free Software Foundation (either version 2 of the
license, or (at Your option) any later version) or, if the Open Source Software is distributed under the terms of
an open source license other than the GNU General Public License, You can redistribute it and/or modify it
under the terms of the respective open source license.
4.2
Open Source Software that is subject to the GNU General Public License is distributed free of charge to You in
the hope that it will be useful but WITHOUT ANY WARRANTY (EXPRESS OR IMPLIED); without even the
implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. You should have
received a copy of the GNU General Public License along with the Open Source Software; if not, write to the
Free Software Foundation, Inc., 59 Temple Place – Suite 330, Boston, MA 02111-1307, USA. See the GNU
General Public License for more details.
5.0
Intellectual Property Rights Indemnification
5.1
Subject to Section 5.2 and 5.3 of this Agreement, in the event of a third party claim or action filed against You
based solely on Your use of the Software and/or Documentation in strict adherence to the terms of this
Agreement, to the extent that it based on a claim that the Software infringes a valid United States, Canadian or
European intellectual property right, Mitel may at its sole option and without further obligation to You either (a)
obtain the right for You to continue using the Software and/or Documentation, (b) replace or modify the
Software and/or Documentation so that it becomes non-infringing, or (c) if such remedies are not reasonably
available, to require return of the Software and/or Documentation including all copies thereof and provide a
prorated refund of the price You paid for the Software on the basis of the price of the Software depreciating to
zero over three years on a straight-line basis. You agree to indemnify and defend Mitel against any claim or
action filed against Mitel to the extent that it is based on a claim that Your design, integration, specification,
instruction, combination, connection, operation, or particular use infringes a valid U.S., Canadian or European
intellectual property right.
5.2
Notwithstanding anything to the contrary contained in the Agreement, including Section 5.1 above, neither Mitel
(which for purposes of this Section 5.2 includes its affiliates, subsidiaries and related companies, and their
respective officers, directors, employees and agents) nor any of its suppliers makes any warranty of noninfringement 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; (e) the provision of information,
materials, instructions or specifications by or on Your behalf or any third party; and (f) connection or operation
of the Software with or in conjunction with hardware or software not provided or authorized by Mitel.
Mitel Networks Corporation
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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
THIS SECTION 5 STATES THE ENTIRE LIABILITY OF EITHER YOU OR MITEL (AND ITS SUPPLIERS) FOR ANY
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS COVERED UNDER THIS AGREEMENT.
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 shall fail to perform substantially in accordance with
the Documentation, 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 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
Mitel Networks Corporation
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SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR 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 nature) and accordingly Mitel will not be liable for any loss, damage, cost or expense directly or
indirectly occasioned thereby. You are advised that the operation of E-911, or its equivalent, requires accurate
information contained in Your database, which You are solely responsible for creating and managing.
7.0
Limitations of Liability
7.1
IN NO EVENT WILL MITEL OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY LOSS OF DATA, LOSS OF
PROFITS OR SAVINGS, LOSS OF BUSINESS, LOSS OF REPUTATION OR GOODWILL OR ANY
ECONOMIC LOSS OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY
DAMAGES ARISING OUT OF OR IN CONNECTION WITH YOUR LICENSE, USE OR INABILITY TO USE
THE SOFTWARE, DOCUMENTATION, OR THE BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR
CONDITION IN CONNECTION WITH THE SOFTWARE, DOCUMENTATION, AND THIS AGREEMENT EVEN
IF MITEL OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND
REGARDLESS OF THE NATURE OF THE CAUSE OF ACTION OR THEORY ASSERTED REGARDING
SUCH DAMAGES.
7.2
Some jurisdictions do not allow limitation or exclusion of incidental or consequential damages in certain
circumstances involving certain types of customer classes, so that the above limitation or exclusion may not
apply to You to the extent that liability is by law incapable of exclusion or restriction.
7.3
IN NO EVENT SHALL MITEL'S TOTAL LIABILITY FOR ANY DAMAGES, DIRECT OR INDIRECT, ARISING
FROM OR IN CONNECTION WITH THE SOFTWARE, DOCUMENTATION OR THIS AGREEMENT EXCEED
THE LICENSE FEES PAID BY YOU FOR THE SOFTWARE AND DOCUMENTATION, WHETHER SUCH
LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT OR OTHERWISE,
INCLUDING NEGLIGENCE.
8.0
Allocation of Risk
8.1
Provisions of this Agreement such as the warranty limitations, exclusive remedies and limitations of liability are
unrelated, independent allocations of risks between You and Mitel. Unenforceability of any such allocations
shall not affect the enforceability of other such allocations. If any part of this Agreement is held to be
unenforceable, it shall not affect any other part. If any part of this Agreement is held to be unenforceable as
written, it shall be enforced to the maximum extent allowed by applicable law. The fees paid by You for the
Software reflects the allocations of risk contained in this Agreement.
Mitel Networks Corporation
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9.0
Export Controls
9.1
You agree to comply fully with all relevant export laws and regulations of Canada, United States, and Europe
and any other applicable export laws and regulations to ensure that the Software is not exported directly, or
indirectly, in violation of such laws.
10.0
U.S. Government Restricted Rights
10.1
The U.S. Government accepts the Software and Documentation as commercial computer software and/or
commercial computer software documentation in accordance with the license terms set forth in this Agreement,
subject to the requirements of FAR 52.227-19 "Commercial Computer Software-Restricted Rights (June 1987)
or DFAR 227.7202-3 "Rights in commercial computer software or commercial computer software
documentation", (effective 6/30/95). For uses with the U.S. Government, the Contractor/Manufacturer is Mitel
Networks, Inc., 1146 N. Alma School Road, Mesa, Arizona 85201.
11.0
Technical Support
11.1
For technical support for the Software, contact the authorized Mitel dealer from whom you obtained (purchased
a license for) the Software.
12.0
Entire Agreement, Governing Law and Venue
12.1
YOU AGREE THAT THIS AGREEMENT IS THE COMPLETE, FINAL AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN YOU AND MITEL AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT
OR ANY OTHER COMMUNICATIONS RELATING TO THE USE OF THE SOFTWARE AND SERVICES OR
ANY OF THE DOCUMENTATION.
12.2
No amendment, modification or waiver of this Agreement will be valid unless set forth in a written instrument
signed by both parties. This Agreement shall be governed by, and construed in accordance with the laws in
force in the Province of Ontario, Canada, exclusive of its conflict of laws provisions. In no event shall this
Agreement be construed or enforced under the provisions of the United Nations Convention on Contracts for
the International Sale of Goods or the United Nations Convention on the Limitation Period in the International
Sale of Goods, the application of which are expressly excluded. Each of the parties acknowledges and hereby
submits to the exclusive jurisdiction of the Courts located in the City of Ottawa, Ontario, Canada. Mitel and its
suppliers are deemed to be third party beneficiaries of this Agreement.
12.3
In the event of any conflict between the terms of this Agreement and a license agreement for the Software that
You have signed with Mitel (the “Executed Agreement”), the terms and provisions of the Executed Agreement
will govern.
13.0
Authorized Mitel Dealer Sublicense Requirement.
13.1
To the extent that this Software is first utilized, and/or configured or programmed by an authorized Mitel dealer,
distributor, or system integrator and not an end user customer, then the dealer, distributor or system integrator
understands and agrees that it has the duty to obtain an acceptable sub-license from the end user or notify the
end user of the terms of this Agreement prior to end user's use of the Software.
Copyright © 2014, Mitel Networks Corporation, All Rights Reserved.
Mitel Networks Corporation
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2014 v3
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