Sample Membership Agreement
DEVCONNECT PROGRAM AGREEMENT
Last Revised 4/8/2021
This DevConnect Program Agreement ("Agreement") is entered into between Avaya Inc., with offices at 4655 Great America Parkway, Santa Clara, CA 95054-1233 ("Avaya"), and the Member specified below ("Member"). The effective date of this Agreement will be the date Avaya countersigns this Agreement ("Effective Date"). Capitalized terms used in the text, but not otherwise defined, are defined in Section 16.
Member desires to participate in Avaya's DevConnect Program ("Program"). This Agreement, together with the Program Guide and the Interoperability Compliance Testing Guide (as defined below), establishes the terms and conditions for Member's participation in the Program. Therefore, for good and valuable consideration, the adequacy of which is hereby acknowledged, and intending to be legally bound, Avaya and Member agree as follows:
1. PROGRAM ADMISSION AND COMPLIANCE
1.1 Admission. Subject to the terms and conditions contained herein, Avaya hereby admits Member to the Program for the term of this Agreement. The benefits, features, policies of the Program are set forth in a program guide ("Program Guide"), which is available on the Program website. Interoperability compliance requirements of the Program are set forth in the Interoperability Compliance Testing Guide ("Interoperability Guide"), which has been provided to Member. Upon admission and payment of applicable fees, Avaya will make available the benefits described in the Program Guide.
1.2 Membership Criteria. For continued membership in the Program, Member must meet the requirements for a participation in a membership category, as set forth in the Program Guide ("Membership Criteria"), and pay all applicable fees, including membership fees.
If Member fails to meet any of the Membership Criteria at any time during the term of this Agreement, Avaya may withhold any benefits associated with the Program and terminate this Agreement with cause in accordance with Section 14.1.
1.3 Compliance. Member agrees to abide by the program policies set forth in the Program Guide, as modified by Avaya from time to time in its sole discretion. Avaya will make a reasonable effort to notify Member when changes are made.
2. TERM
The initial term of this Agreement will be from the Effective Date through December 31 of the year of the Effective Date ("Initial Term"). This Agreement will automatically renew for one (1) year terms thereafter at the then applicable membership category (as indicated on the invoice for the membership fees for the following membership year) unless (i) a party provides notice of its intent not to renew this Agreement prior to November 30 of the Initial Term or any renewal term thereafter ("Renewal Term") or (ii) Member fails to pay the then current membership fees for the Renewal Term in a timely manner. Avaya reserves the right to suspend the membership benefits, if Member is late with payment of the membership fees as per the terms of an invoice, and to cancel the membership at Avaya's sole discretion at any time thereafter. Member will be then required to re-execute the DevConnect Program Agreement, if Member wishes to reinstate its membership in the Program.
3. ORDERS AND PAYMENT
3.1 Fees. During the Initial Term, Member will be responsible for the applicable membership fees for the Initial Term. After expiration of the Initial Term, Member will pay the then current membership fee for each Renewal Term. Member will also be responsible for any additional fees set forth in the Program Guide for any additional membership benefits, as requested by Member. Except as otherwise set forth in this Agreement or the Program Guide, all fees are non-refundable.
3.2 Orders for Avaya Products. Member may order Avaya Products subject to Avaya's approval. Any Avaya Products delivered under this Agreement will be used by Member solely in a non-production laboratory environment and in connection with Member's participation in the Program.
3.3 Invoicing and Payment. Avaya will invoice all fees in advance and recurring fees will be invoiced annually in advance. The invoice will specify the membership category and the applicable membership fees. All fees are due within thirty (30) days of the invoice date. Member will pay bank charges, taxes, duties, levies and other costs and commissions, as applicable.
3.4 Late Charges. Any overdue and unpaid portion of the fees will bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed by applicable law. Avaya may suspend membership privileges and may terminate Member's membership if payment is overdue. Member will reimburse Avaya for reasonable attorney's fees and any other costs associated with collecting delinquent payments.
3.5 Taxes. All fees payable under this Agreement exclude taxes. Member will pay or reimburse Avaya for all applicable sales, services and other taxes(excluding taxes on Avaya's net income) levied under this Agreement unless Member is exempt and provides Avaya with a valid tax exemption certificate prior to Avaya's invoice date. If Member is required to bear a tax pursuant to this section, then Member shall pay such tax and any additional amounts as are necessary to ensure that the net amounts received by Avaya hereunder after all such payments or withholdings equal the amounts to which Avaya is otherwise entitled under this Agreement as if such tax did not exist.
4. AVAYA TRADEMARKS
4.1 Trademark License. Avaya hereby grants to Member a limited, personal, nonexclusive, non-transferable license to use the Licensed Trademarks in the Member Territories, solely in connection with the advertisement, promotion, sale or marketing of Member Products, subject to the terms and conditions of this Section and the other provisions of this Agreement and the Program Guide. Member will not use the Licensed Trademarks in any way to imply Avaya's endorsement, warranty or guarantee of any Member Products. Member will not alter any of the Licensed Trademarks.
4.2 Member shall submit to its designated DevConnect Program Business Manager for a review and approval, a soft copy of the completed material incorporating the Licensed Trademark, along with a description of proposed use and placement, a minimum of five (5) business days prior to the intended date of use. If the completed material is approved for the requested use and/or placement, Member will receive said approval in writing from Avaya.
4.3 Compliance with Trademark Guidelines. Member will use and apply the Licensed Trademarks in accordance with Avaya's trademark guidelines, as amended from time to time and available electronically on the Program website. Avaya may revise the trademark guidelines from time to time without Member's consent.
4.4 No Registration of Similar Marks. Member will not register, in any other country or jurisdiction, any name, logo, or mark identical to or confusingly similar to the Licensed Trademarks or any other Avaya name, logo or mark, and will not register internet domain names with any of the Licensed Trademarks.
5. MEMBER TRADEMARKS
5.1 Trademark License. Member hereby grants to Avaya and its Affiliates a limited, personal, nonexclusive, non-transferable license to use the Member's trademarks, insignia, logos, promotional signatures, and symbols ("Member Marks") in connection with the advertisement, promotion, sale or marketing of the Program, Member Products or Avaya Products, subject to Member's guidelines for the usage of such Member Marks of which Avaya has received notice. Member will provide Avaya with copies of the Member Marks in the format reasonably requested by Avaya.
5.2 No Registration of Similar Marks. Avaya will not register, in any country or jurisdiction, any name, logo, or mark identical to or confusingly similar to the Member Marks or any other Member name, logo or mark.
6. SOFTWARE LICENSE
6.1 License Grant
6.1.1 License. During the term of this Agreement and subject to Member’s payment of all applicable fees and compliance with the terms of this Section 6 (“Software License Terms”), the other terms of this Agreement and the Program Guide, Avaya grants Member a personal, non-sublicenseable, non-exclusive, non-transferable license to use Software and Documentation in a non-production environment as provided under this Agreement for the purposes set forth in this Agreement at Member’s locations in the Member Territories. No Software, Documentation or other information provided hereunder is intended for joint development purposes.
6.1.2 Use for Development. During the terms of this Agreement, Member may use the Software and Documentation to develop, test and support Member Products that interoperate with the Avaya Product categories for which Member has been approved. Except as explicitly set forth in the applicable End User License Agreement of the Software or SDK, Member will not incorporate any portion of the Software or any other Avaya IP (as defined in Section 8) into any Member Product. In no event shall Member use any Avaya Product for any other purpose except as expressly set forth herein including but not limited to using the Avaya Products to provide services of any kind to third parties or for the development of any Member product or service and/or interoperability testing with any third party product or service.
6.1.3 Interoperability Marketing. Upon obtaining Certification of Interoperability as set forth in the Program Guide, Member may use Avaya Products with Member Products for marketing and demonstration to customers and potential customers to display interoperability between Member Products and the Avaya Products.
6.1.4 All Rights Reserved. Except for the limited license rights expressly granted in this Section, Avaya reserves all rights in and to the Software and Documentation and any modifications thereto, including title, ownership, intellectual property rights, and any other rights and interests. To the extent Member purchases Avaya Products from and fulfilled by the DevConnect Program, Member will own only the hardware or physical media on which the Software is stored, if any.
6.1.5 Shrink-wrap. Member’s use of any Avaya Product not developed or manufactured by Avaya will also be subject to any additional restriction on use of any shrink-wrap, click-wrap or other license agreement packaged with or in such Avaya Product. In the event of a conflict between the terms of this Agreement and the terms of such shrink-wrap, click-wrap or other license agreement, the terms of the shrink-wrap, click-wrap or other license agreement will control; provided, however, notwithstanding any provision to the contrary, Member will not permitted to use the Avaya Product in a production environment.
6.2 License Restrictions
6.2.1 General Restrictions. To the extent permissible under applicable law, and notwithstanding anything to the contrary in this Agreement, Member agrees not to: (i) decompile, disassemble, or reverse engineer the Software; (ii) modify or create any derivative works (including, without limitation, translations, transformations, adaptations or other recast or altered versions) based on the Software or Documentation, or alter the Software; (iii) merge the Software with any other software other than as expressly set forth in the Documentation; (iv) use, copy, sell, sublicense, lease, rent, loan, assign, convey or otherwise transfer the Software or Documentation except as expressly authorized by this Agreement; (v) distribute, disclose or allow use of the Software or Documentation, in any format, to or by any third parties; (vi) modify, distribute or otherwise use the Software in any manner that causes any portion of the Software that is not already subject to an open source software license to become subject to the terms of any open source software license; (vii) violate any obligations with regard to Avaya’s Confidential Information; or (viii) permit or encourage any third party to do any of the foregoing.
6.2.2 Backup Copies. Member may create a reasonable number of archival backup copies of the Software and Documentation on the condition that and as long as Member: (i) stores backup copies separately from any actively used computer programs; (ii) keeps a written record of all backup copies indicating the location of their storage; and (iii) provides such record to Avaya upon request. Member will not remove any product identification, trademark, copyright or other proprietary rights notices from the Software or Documentation and will duplicate and display all names, logos and notices of Avaya and its licensors on each archival backup copy of the Software and Documentation made by Member.
6.2.3 Compliance. Member will make the Software available only to its employees, contractors, or consultants with a need to know, who are obligated to comply with all the provisions of this Agreement, including, but not limited to, the license restrictions contained in this Agreement and to maintain the secrecy of the Software and all other Confidential Information. Member will be responsible for the compliance of all users with those obligations.
6.2.4 Termination of License. Upon termination of this Agreement for any reason, Member will immediately pay all fees outstanding, cease use of all Software and Documentation, return or delete, at Avaya’s request, all copies of the Software and Documentation in Member’s, its contractors’ and consultants’ possession, and certify compliance with all of the obligations in this paragraph to Avaya in writing.
6.3 Audit. At Avaya’s request and upon reasonable prior written notice, Avaya will have the right to inspect and audit Member’s compliance with the provisions of this Agreement during normal business hours, but no more than once every six (6) months. Member will cooperate with the audit, and will grant assistance and access to applicable records, materials and equipment. In addition, Member will provide, upon reasonable written notice, remote access to Avaya Products to enable Avaya to electronically audit Member’s compliance with the Software License Terms.
7. CONFIDENTIALITY
7.1 Confidential Information. The term "Confidential Information" means Software (in object and source code form), Documentation, any technical information related to the Avaya Products or otherwise supplied under this Agreement or the Program, including, but not limited to APIs and SDKs, the terms (but not the existence) of this Agreement, Program and Program Guide, and, if marked or otherwise expressly identified as confidential in writing, pricing and any other information or data, regardless of whether in tangible, electronic or other form. Information communicated verbally will qualify as Confidential Information if designated as confidential or proprietary at the time of disclosure and summarized in writing within thirty (30) days after verbal disclosure. Confidential Information does not include materials or information that: (i) is generally known by third parties as a result of no act or omission of the receiving party; (ii) subsequent to its disclosure was lawfully received from a third party having the right to disseminate the information and without restriction on disclosure; (iii) was already known by the receiving party prior to receiving it from the other party and was not received from a third party in breach of that third party's obligations of confidentiality; (iv) was independently developed by the receiving party without use of Confidential Information of the disclosing party; or (v) is required to be disclosed by court order or other lawful government action, but only to the extent so ordered, and provided that the receiving party promptly notifies the disclosing party of the pending disclosure in writing so that the disclosing party may attempt to obtain a protective order. In the event of a potential disclosure in the case of subsection (v) above, the receiving party will provide reasonable assistance to the disclosing party where the disclosing party attempts to obtain a protective order.
7.2 Protection of Confidential Information. Each party will protect the secrecy of all Confidential Information received from the other party with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than a reasonable degree of care. Neither party will use the other party's Confidential Information, except for the purpose of performing obligations under this Agreement, and will disclose the same except as permitted in this Section 7. The confidentiality obligations of each party under this Agreement will survive any expiration or termination of this Agreement or of any order. Upon termination of this Agreement, each party will cease all use of the other party's Confidential Information and will promptly return, or at the other party's request destroy, all Confidential Information in tangible form and all copies of Confidential Information in that party's possession or under its control, and will destroy all copies of Confidential Information on its computers, disks and other digital storage devices. Upon request, a party will certify in writing its compliance with this Section.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 Member Owns Member IP. Member reserves all rights, including, but not limited to, ownership, title, intellectual property rights and all other rights and interest in and to any computer programs (in object or source code format or any other form), know-how, inventions, processes, data bases, documentation, training materials and any other intellectual property as well as any tangible embodiments thereof (collectively "Intellectual Property" or "IP") that Member develops hereunder (collectively "Member IP"). Notwithstanding the foregoing, the Avaya Products, APIs and SDKs will remain IP of Avaya and Member will have no interest in any Avaya IP.
8.2 Avaya Owns Avaya IP. Avaya reserves all rights, including, but not limited to, ownership, title, and all other rights and interest in, and to, any Intellectual Property that Avaya delivers to Member or that Avaya develops, creates, or otherwise acquires.
9. WARRANTY
AVAYA PRODUCTS AND OTHER MATERIALS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED "AS-IS" WITH NO WARRANTIES OR INDEMNITIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AVAYA DISCLAIMS ALL WARRANTIES IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
10. INFRINGEMENT DEFENSE AND INDEMNIFICATION
10.1 Avaya IP Infringement Defense and Indemnity. Avaya will defend, at its expense, a third party action, suit or proceeding against Member ("Claim") to the extent such Claim is based upon an allegation that an Avaya Product in the form delivered under this Agreement and used in accordance with this Agreement, as of its delivery date under this Agreement, infringes: (i) a valid United States patent or copyright; or (ii) an allegation that the Licensed Trademarks when used in accordance with this Agreement infringe the trademark rights of a third party. Avaya will indemnify Member for any judgments, settlements and reasonable attorney's fees resulting from a Claim as provided in this Section. Avaya's obligations under this Section are conditioned on the following: (i) Member promptly notifies Avaya of the Claim in writing upon Member being made aware of the Claim; (ii) Member gives Avaya sole authority and control of the defense or settlement of the Claim; and (iii) Member provides all information and assistance requested by Avaya to handle the defense or settlement of the Claim.
10.2 Remedial Measures. If an Avaya Product becomes the subject of a Claim, or Avaya reasonably believes use of such Avaya Product may become the subject of a Claim, Avaya may, at its own expense and option: (i) procure for Member the right to continue use of the Avaya Product; (ii) replace the Avaya Product with a non-infringing product; or (iii) refund to Member the applicable membership fee, in which case Member will return to Avaya the Avaya Product and cease all use of it.
10.3 Exceptions. Avaya will have no defense or indemnity obligation for any Claim based on: (i) an Avaya Product that has been modified by someone other than Avaya (or subcontractors hired by Avaya to make such modifications) except to the extent such modifications are required for the Product to operate to perform functionality explicitly set forth in a published Avaya specifications; (ii) an Avaya Product that has been properly modified by Avaya in accordance with Member-provided specifications or instructions; (iii) an Avaya Product that has been used with or combined with hardware or software not furnished by Avaya to the extent that the claim is based on such combination; or (iv) Member Products or any third party products. Member will defend Avaya against any third party Claim, and Member will indemnify Avaya for any judgments, settlements and reasonable attorney's fees resulting from a Claim to the extent the Claim is based on subsection (i) or (ii) above.
10.4 Member General Defense and Indemnity. At Avaya's request, Member will indemnify, defend and hold harmless Avaya, its Affiliates, customers, employees, successors and assigns from and against any losses, damages, claims, fines, penalties and expenses (including reasonable attorney's fees) that arise out of or result from: (a) injuries or death to persons or damage to any form of property, including theft, in any way arising out of or caused or alleged to have been caused by the services performed by, or deliverables provided by Member or persons furnished by Member or any Member Product; (b) assertions under Workers' Compensation or similar acts made by persons furnished by Member or (c) any failure of Member to perform its obligations under this Agreement.
10.5 Member IP Infringement Defense and Indemnity. Member will defend, at its expense, a third party Claim to the extent such Claim is based upon an allegation that a Member Product infringes: (i) a valid United States patent or copyright; or (ii) an allegation that the Member trademarks when used in accordance with this Agreement infringe the trademark rights of a third party Member will indemnify Avaya for any judgments, settlements and reasonable attorney's fees resulting from a Claim as provided in this Section. Member's obligations under this Section are conditioned on the following: (i) Avaya promptly notifies Member of the Claim in writing upon Avaya being made aware of the Claim; (ii) Avaya gives Member sole authority and control of the defense or settlement of the Claim; and (iii) Avaya provides all information and assistance requested by Member to handle the defense or settlement of the Claim.
10.6 Exceptions. Member will have no defense or indemnity obligation for any Claim based on: (i) a Member Product that has been modified by Avaya, its employees or authorized agents in a manner not authorized in writing by Member; (ii) a Member Product that has been used with or combined with hardware or software not furnished or approved by Member; or (iv) Avaya Products or any third party products.
10.7 No Other Remedies Regarding Infringements. The foregoing states the parties' entire liability and their sole and exclusive remedy with respect to any infringement or misappropriation of any intellectual property rights of any other party.
11. LIMITATION OF LIABILITY
EXCEPT FOR CLAIMS OF WILLFUL MISCONDUCT, PERSONAL INJURY, VIOLATIONS OF SECTION 4 (TRADEMARKS), SECTION 6 (SOFTWARE LICENSE), SECTION 7 (CONFIDENTIALITY), AND INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE ARISING OUT OF THIS AGREEMENT OR THE SALE OF PRODUCTS, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING THE POSSIBILITY OF NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN WARNED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE, AND EVEN IF ANY OF THE LIMITED REMEDIES IN THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. EXCEPT FOR CLAIMS OF WILLFUL MISCONDUCT, PERSONAL INJURY, VIOLATIONS OF SECTION 4 (TRADEMARKS), SECTION 6 (SOFTWARE LICENSE), SECTION 7 (CONFIDENTIALITY), AND INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER UNDER THIS AGREEMENT EXCEED FOR ANY YEAR THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO SUCH DAMAGES DURING THAT YEAR,
Limitation of Liability for Representatives. The limitations of liability in this Section also will apply to any liability of directors, officers, employees, agents and suppliers. Directors, officers, employees, agents and suppliers will be third party beneficiaries of this contractual limitation of liability and will be entitled to enforce this limitation directly against the other party.
12. GOVERNING LAW AND DISPUTE RESOLUTION
12.1 Choice of Law. This Agreement and any disputes arising out of or relating to this Agreement ("Disputes") will be governed by the laws of the state of New York, excluding choice of law principles and excluding the United Nations Convention on Contracts for the International Sale of Goods.
12.2 Binding Arbitration. Subject to Section 12.3, all Disputes will be finally resolved by binding arbitration before one arbitrator, selected pursuant to the Commercial Rules of the American Arbitration Association ("AAA"). The proceedings will be conducted in Morristown, New Jersey pursuant to such rules. The arbitrator so appointed will have the authority to determine issues of arbitrability and to consider and rule on dispositive motions. The arbitrator will have authority to award only those damages within the scope of Section 11and will not award punitive or exemplary damages. The arbitrator will not have the authority to limit, expand or otherwise modify the terms of this Agreement. The parties, their representatives, other participants and the arbitrator will hold the existence, content and result of mediation and arbitration in confidence.
12.3 Injunctive Relief. Either party may seek injunctive relief in any court of competent jurisdiction (including but not limited to preliminary injunctive relief). The parties acknowledge that each of them has a vital interest in enjoining any violation of confidentiality obligations, including unauthorized use of the Software or Documentation, because damages would not adequately compensate a party for any infringements of that party's intellectual property rights.
12.4 Time Limit. Actions on Disputes between the parties must be brought in accordance with this Section within two years after the cause of action arises.
13. ASSIGNMENT
Member may not assign or transfer this Agreement or any rights or obligations hereunder, whether by operation of law or otherwise, and any attempted assignment or transfer without the express prior written consent of Avaya will be void and invalid. Avaya will have the right to assign this Agreement and, if applicable, any statement of work or order and its rights or obligations under them, in whole or in part. This Agreement is enforceable by the original parties to it and by their successors in title and permitted assigns.
14. TERMINATION
14.1 Termination. This Agreement or any order may be terminated as set forth below:
14.1.1 Each party may terminate this Agreement for convenience with twenty (20) days written notice to the other party without liability to the other party. If Avaya terminates this Agreement for convenience, Avaya will refund the unused portion of any prepaid fees.
14.1.2 At any time, each party may terminate this Agreement or any applicable order by written notice to the other party, effective immediately upon receipt, if the other party fails to cure any material breach of this Agreement within a twenty (20) day period after having received a written notice from the non-breaching party detailing the breach and requesting the breach be cured. Except as expressly provided otherwise in this Agreement and termination for uncured breach, any termination of this Agreement will not affect any rights or obligations of the parties accrued before the termination of this Agreement became effective.
14.1.3 Avaya may terminate this Agreement, any order or statement of work immediately by giving written notice if Member becomes insolvent, or voluntary or involuntary proceedings by or against Member are instituted in bankruptcy or under any insolvency law, or a receiver or custodian is appointed for Member, or proceedings are instituted by or against Member for corporate reorganization or the dissolution of Member, which proceedings, if involuntary, have not been dismissed within thirty (30) days after the date of filing, or Member makes an assignment for the benefit of its creditors, or substantially all of the assets of Member are seized or attached and not released within thirty (30) days thereafter, or if the Member has, in the opinion of Avaya, has ceased or threatened to cease to do business in the regular course.
14.2 Effects of Termination. Upon the termination or expiration of this Agreement for any reason, (i) Avaya will discontinue all use of Member Marks and (ii) Member will:
- discontinue all use of the Licensed Trademarks;
- cease holding itself out in any manner as member of the Program and notify and arrange for all persons who may identify, list or publish Member's name as member of the Program to discontinue such designation; and
- return to Avaya all promotional materials and Confidential Information supplied by Avaya.
14.3 Survival. The following provisions of this Agreement will survive termination: (a) Member's outstanding payment obligations (except in the event of termination for Avaya's breach); (b) Avaya's ownership and license rights with respect to deliverables and Member IP; (c) all ownership rights and obligations of the parties with respect to Confidential Information; (d) Member's warranty obligations; (e) indemnity obligations; (f) limitations of liability; (g) the dispute resolution provisions contained in Section 12; and (h) the Miscellaneous terms contained in Section 15.
15. MISCELLANEOUS
15.1 Export Compliance. Avaya Products and any technical information provided under this Agreement are subject to the export laws and regulations of the United States. By executing this Agreement, Member represents that it is not a resident or citizen of any country currently embargoed by the United States (a list of embargoed countries, denied persons and other restrictions is available from the U.S. Department of Commerce). Member will observe all applicable laws when using the Avaya Products. Member will indemnify and hold Avaya and its suppliers harmless from any and all costs, expenses, liabilities and claims based upon Member's failure to comply with this Section.
15.2 Ethical Conduct. Member will conduct business in a manner that reflects favorably on the Avaya Products and the good name and reputation of Avaya, and will not engage in deceptive or unethical practices. Member will conduct business under its corporate name, which will be prominently displayed in any communications or advertisements, and will not make any representations, warranties or guarantees on behalf of Avaya.
15.3 Notices and Amendments in Writing. All notices under this Agreement and any modifications or amendments to this Agreement must be in writing. Modifications or amendments to this Agreement also must be executed by both parties, including via electronic means. Notwithstanding the foregoing, Avaya reserves the right to modify or cancel the Program or Program Guide at any time without notice or consent of Member. Member is responsible for obtaining updates to the Program and Program Guide. Notices will be sent to the addresses of Avaya in the Preamble and the Member indicated on the signature page of this Agreement. Notices to Member may be sent to the email address for Contact Person as noted on the signature page. Notices to Avaya will be to the attention of "Director – DevConnect Program" with a copy to "Corporate Counsel – DevConnect Program."
15.4 Independent Contractors. This Agreement does not create any agency, employment, partnership, joint venture, or other joint relationship. Member and Avaya are independent contractors. Neither party has any authority to bind the other.
15.5 Severability. If and to the extent any provision of this Agreement is held illegal, invalid or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid or unenforceable to the extent of its illegality, invalidity or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity or enforceability of such provision or of any other provisions of this Agreement in any other jurisdiction.
15.6 No Waiver. The failure of either party to assert any of its rights under this Agreement, including, but not limited to, the right to terminate this Agreement 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 thereafter to enforce each and every provision of this Agreement in accordance with their terms.
15.7 Non-exclusivity. Nothing in this Agreement will prevent or restrict either party from entering into agreements for the provision of products and services of the same or similar nature as those provided under this Agreement with any third party, provided, however, that such agreements do not violate any terms or conditions of this Agreement. Nothing contained in this Agreement or the Program Guide will require Avaya to provide any services in a location in which it does not have a direct presence.
15.8 Passwords. Member is responsible for the security of Member employee login ID and password ("Identifications") for the Program website. Member agrees that any person using an Identification issued to a Member employee for the Program website will be treated by Avaya as having been authorized by Member to access the Program website, and take any other actions on Member's behalf. Member will indemnify and hold Avaya harmless from all damages, costs, expenses, liabilities and claims incurred by Avaya arising out of any action taken by any person or entity using Identification.
15.9 Access. Avaya has the right, but not the duty, to terminate or suspend Member's access to the Program website, without notice, for any conduct that Avaya, in its sole discretion, believes is in violation of any applicable law or is harmful to the interests of another user, a third-party provider, a service provider or Avaya. It is forbidden to access the Program website from territories where the legislation provides that the content or use of the Program website is illegal. Member chooses to use the Program website on its own initiative, and it is Member's responsibility to ensure that Member conforms to all applicable local laws.
15.10 Links. The links on the Program website will let Member leave Avaya's site. The linked sites are not under the control of Avaya and Avaya is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. Avaya is not responsible for webcasting or any other form of transmission received from any linked site. Avaya is providing these links to Member only as a convenience, and the inclusion of any link does not imply endorsement by Avaya of the site.
15.11 Privacy. WHEN YOU SUBMIT PERSONAL DATA TO AVAYA ON THE PROGRAM WEBSITE OR WHEN REGISTERING FOR THE PROGRAM WEBSITE, AVAYA MAY TRANSFER AND/OR RETAIN THE PERSONAL DATA SUBMITTED TO A COUNTRY OUTSIDE THE COUNTRY IN WHICH REGISTRANT IS LOCATED OR FROM WHERE SUCH PERSONAL DATA WAS COLLECTED, WHICH MAY NOT HAVE THE SAME OR EQUIVALENT DATA PRIVACY PROTECTIONS. IF REGISTRANT DOES NOT APPROVE OF SUCH TRANSFER AND/OR RETENTION, DO NOT SUBMIT PERSONAL DATA TO AVAYA.
15.12 Entire Agreement. This Agreement, together with all applicable Exhibits and the Program Guides, constitutes the entire understanding of the parties with respect to the subject matter thereof 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.
15.13 Agreement in English. The parties confirm that it is their wish that this Agreement, as well as all other documents relating hereto, including all notices, have been and shall be drawn up in the English language 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. Las partes ratifican que es su voluntad que este Contrato, así como cualquier otro documento relacionado con el mismo, incluyendo todo tipo de notificaciones, han sido redactados y deberán continuar siendo redactados únicamente en el idioma inglés.
15.14 Parties agree that facsimile or electronically transmitted signatures shall be deemed to be originals, and both parties agree to accept and be bound thereby. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
16. DEFINITIONS.
"Affiliate" means any entity which controls, is controlled by or is under common control with one of the global parties to this Agreement. For purposes of this definition, "control" will mean beneficial ownership (direct or indirect) of more than 50% of the shares of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, for the election of the corresponding managing authority).
"Avaya Products" means any combination of Software, Documentation and Avaya's generally available hardware that Avaya delivers to Member under this Agreement.
"Documentation" means (i) Avaya's information manuals in printed or electronic form containing operating instructions and performance specifications that Avaya generally makes available to users of Avaya Products and Avaya delivers to Member with the Avaya Products; and (ii) application program interfaces ("APIs") and software development kits ("SDKs") that Avaya delivers to Member to the extent such APIs and SDKs are not Software.
"Licensed Trademarks" means Avaya trademarks, insignia, logos, promotional signatures, and symbols which are expressly designated for Member's use as set forth in, and subject to the terms of, the Program Guides and/or Program website, and which are owned by Avaya.
"Member Products" means one or more of the following value-added goods and/or services developed, licensed, sold, or provided by Member to customers in the ordinary course of business: (i) consulting, professional services, training, technical support or educational services; (ii) development and/or licensing of application software; (iii) development and/or licensing of software content; (iv) development and/or sale of hardware, database systems, network services, and/or operating systems. The term does not mean or include any product or service of Member bearing any of the Licensed Trademarks.
"Software" means the computer programs in object code form that Avaya delivers under this Agreement, whether as stand-alone products or pre-installed on hardware, including, but not limited to, APIs and SDKs.
