BEFORE USING THE SHORETEL SERVICES PLEASE READ THESE END USER TERMS OF SERVICE (THESE “TERMS”). THESE TERMS ARE INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” IN THE ORDER FORM (“CUSTOMER”). PURSUANT TO THESE TERMS, CUSTOMER SHALL HAVE THE RIGHT TO USE THE SHORETEL SERVICES. THESE TERMS AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND SHORETEL, INC., ITS AFFILIATES AND SUBSIDIARIES (“SHORETEL”) EFFECTIVE AS OF THE DATE OF CUSTOMER’S EXECUTION OF THE ORDER FORM. CUSTOMER IS ADVISED TO READ SECTION 7 CAREFULLY BEFORE USING THE SERVICE. THIS SECTION EXPLAINS THE OPERATION AND LIMITATIONS OF VOIP E911 EMERGENCY CALLS.
These Terms of Service govern and apply to Customer’s use of the Mitel Services and Equipment provided by Mitel as well as Customer’s access to the Mitel website (the “Website”).
1.1 Installation, Initiation and Service. Mitel will begin installation, initiation and Service only after it receives and accepts the following: (1) a duly executed Order Form; and (2) any amounts payable in advance in accordance with the applicable Order Form. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any discussions, oral or written public comments made by Mitel with respect to future functionality or features.
1.2 Service Fees. Customer agrees to pay all monthly service charges, installation charges, set-up charges, usage-based charges, rental fees and other charges and fees (collectively, “Service Fees”) agreed to in each Order Form in the manner indicated therein.
1.3 Invoicing. Customer will be invoiced a month in advance for non-usage-based charges and in arrears for all usage-based charges unless otherwise indicated in the Order Form. “Service Activation Date” means the date in which a particular Service is available for use. Services shall be deemed accepted by Customer on the Service Activation Date. Mitel will notify Customer in accordance with the information provided by Customer or in the Mitel website Customer Portal.
1.4 Payment. Unless otherwise stated in the Order Form, Service Fees are due 30 days from the date of the invoice. All Service Fees are quoted in United States currency and are based on Services ordered. Any payment not received from the Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid.
1.5 Suspension of Service. If any Customer account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute) Mitel reserves the right to suspend or disable the Services, after providing notice to Customer without liability to Mitel, until such account is paid in full.
1.6 Taxes and Regulatory Fees. Unless otherwise stated in the Order Form, Customer shall be responsible for all sales, use, value added, withholding or other taxes or duties, other than Mitel’s income taxes, with respect to the Services ordered. In addition to any taxes imposed by the government or regulatory agencies, Mitel reserves the right to charge other authorized regulatory fees, including, without limitation, E911 service fees, universal service fees, and regulatory recovery fees (“Fees”). Any imposition, modification or increases in Fees by a government or regulatory agency or that are intended to recover costs associated with government or regulatory programs shall become effective upon prior notice to Customer.
2. Other Networks; Approval and Usage. Mitel Services require the ability to transmit data through third party networks and carriers, public and private (“Third Party Networks”). Customer acknowledges that use of or presence of third party networks and carriers may require approval of the owners or operators of such Third Party Networks, and will be subject to any terms and conditions that such Third Party Networks may establish. Customer understands that Mitel does not own or control the Third Party Networks, and agrees that Mitel shall not be responsible or liable for the performance or non-performance of the Third Party Networks, or within interconnection points between the Service and the Third Party Networks.
3.1. Term of the Agreement. This Agreement commences on the date of execution of the Order Form by Customer and continues until all Services expire or this Agreement is mutually terminated by the parties.
3.2. Term of the Services. The Services are offered for the initial term of service specified in the Order Form (the “Initial Service Term”). The Initial Service Term shall begin on the Service Activation Date (the “First Service”). Following the Initial Service Term, Services shall automatically renew for additional terms equal to the Initial Service Term at the New Service Monthly Commitment (as such term is defined below) in effect at the time of renewal (each, a “Renewal Term”) unless and until either party notifies the other party in writing at least thirty (30) days prior to the expiration of the Term in effect at the time that it does not wish to renew the Services. (the Initial Service Term and any Renewal Term collectively referred to as the “Term”). If, during the Initial Term or any Renewal Term, Customer adds any additional services to its use of the Service, the amount of Customer’s monthly recurring charges shall increase the sum set forth in the original Customer Service Order Form (the “New Service Monthly Commitment”). And, the Service Term for any such additional Services shall be coterminous with the Initial Service Term or any Renewal Term in effect at the time.
3.3 Termination of the Agreement. This Agreement and any Services may be terminated by either party for cause: (a) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3.4 Early Termination. If Customer wishes to terminate the Services under this Agreement prior to the expiration of the current Service Term and such termination is not due to Mitel’s breach, all recurring charges on the most current invoice which would otherwise be due through the end of the Service Term in effect at the time, including all applicable taxes shall be due and payable within thirty (30) days of the effective date of termination The parties agree that these early termination charges are a reasonable estimate of anticipated actual damages and not a penalty.
4. Rules of Use. Customer must at all times comply with Mitel’s Rules of Use found at https://www.shoretel.com/RoU. If Mitel becomes aware of Customer’s violation of the Rules of Use or illegal use of Mitel Services, facilities, network or third party networks accessed through the Mitel network (including, in any case and without limitation, any use contrary to the Digital Millennium Copyright Act of 1998, 17 U.S.C. 512), or Mitel otherwise receives notice or has reason to believe such use may be occurring, then Customer will cooperate in any resulting investigation by Mitel or government authorities. Any government determinations will be binding on Customer. If Customer fails to cooperate with any such investigation or determination, or fails to immediately rectify any violation of the Rules of Use or illegal use, Mitel may immediately suspend the Service without further liability to Mitel. Further, upon notice to Customer, Mitel may modify or suspend the Service as necessary to protect its networks, customers or comply with any law or regulation. Under no circumstances will Customer take any actions in connection with its use of the Service that could result in any harm or damage to the network, any third party network(s), Mitel’ premises, any equipment of Mitel or any other Mitel customer.
5. Fraud. Customer agrees to notify Mitel promptly if it becomes aware of any fraudulent or unauthorized use of its account, Service, or Equipment. Mitel shall not be liable for any damages whatsoever resulting from fraudulent or unauthorized use of Customer’s account and the payment of all charges to Customer’s account shall be and remain the responsibility of Customer.
6. Service Levels. Mitel will use commercially reasonable efforts to minimize service disruptions and outages. In the event of service disruptions or outages, Customer’s sole remedy, and Mitel sole obligation, shall be to provide the service level credits and/or remedies for the applicable Service in accordance with the Service Level Agreement set forth on Mitel’ customer support web site at: https://www.shoretel.com/SLA. Mitel may update the Service Level Agreement from time to time upon notice to Customer.
7. E911 Service. By use of the Service, Customer acknowledges the limitations of E911 service as described in the E911 Policy found at: https://www.shoretel.com/911-service. Customer agrees and acknowledges that while some individual services offer access to E911 service, others may not. Customer is advised to thoroughly understand the Service and the options available. By accepting this Agreement, Customer acknowledges that it has received the information regarding the limitations of E911 services, understands them, and assumes the risks associated with the E911 limitations. Mitel may disclose to the FCC that Customer has acknowledged the E911 Disclosure by virtue of Customer having accepted this Agreement. Mitel may update the E911 Policy from time to time upon notice to Customer.
8. Equipment. If so indicated on any Order Form, Mitel may rent or sell certain equipment to Customer. Such equipment shall be listed on the Order Form and/or on any other form signed by Customer (such rented equipment the “Equipment”). Any Equipment rental or purchase shall be subject to the terms and conditions set forth in the Equipment Policy posted on Mitel’s web site at: https://www.shoretel.com/ERP. Customer shall be solely responsible and liable for user’s compliance with this Agreement and the proper use of the Equipment and the Services.
9. Confidentiality. As used herein, "Confidential Information" means all confidential information of a party ("Disclosing Party") disclosed to the other party ("Receiving Party") that is designated in writing as confidential as well as the terms and conditions of this Agreement. Confidential Information shall not include information which: (a) is known publicly; (b) is generally known in the industry before disclosure; (c) has become known publicly, without fault of the Receiving Party, subsequent to disclosure by the Disclosing Party; or (d) has been otherwise lawfully known or received by the Receiving Party. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms, except with the Disclosing Party’s prior written permission. The Receiving Party agrees to keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality thereof in the same manner as it protects the confidentiality of its own (at all times exercising at least a reasonable degree of care in the protection of Confidential Information). If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party agrees that monetary damages for breach of confidentiality hereunder may not be adequate and that, if necessary, the Disclosing Party shall be further entitled to seek injunctive relief.
11. Resale. Customer represents and warrants that it will be the end user of the Services. Customer shall not in any way resell, license or permit or suffer any third party to use the Services without receiving Mitel’s prior written consent.
12. Disclaimer of Warranties. Except as expressly provided herein, Customer acknowledges and agrees that the Services are provided on an “As Is”, as available basis. Other than as expressly provided herein, Mitel DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR, NON-INFRINGEMENT OR TITLE TO THE MAXIMUM EXTENT PERMITTED BY LAW. Mitel does not warrant that the Services will meet the Customer's requirements or that the operation of the Services will be uninterrupted or error-free. Further, Mitel does not warrant that all errors in the Services can be corrected.
12.1 Disclaimer of Third Party Actions and Control. Customer acknowledges and agrees that Mitel does not and cannot control the flow of data between Mitel’s network and Third Party Networks. Such flow depends on the performance of Third Party Networks and the services provided or controlled by third parties. Action or inactions caused by these Third Party Networks can produce situations in which Mitel customers’ connections may be impaired or disrupted. Although Mitel will use commercially reasonable efforts to remedy and avoid such events, Mitel cannot issue any warranties over these Third Party Networks or any disruptions that may occur. THEREFORE, WITHOUT LIMITING THE GENERALITY OF SECTION 12 ABOVE, SHORETEL DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE, NONPERFORMANCE OR INCORRECT PERFORMANCE OF THIRD PARTY NETWORKS.
13. Limitation of Liability IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOST PROFITS OR REVENUE. UNDER NO CIRCUMSTANCES WILL SHORETEL BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN. SHORETEL’S AGGREGATE LIABILITY FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE FEES PAID AND/OR DUE BY THE CUSTOMER. Because some states and jurisdictions do not allow limitation of liability in certain instances, portions of the above limitation set forth in this section may not apply to Customer. However and notwithstanding the provisions of this Section 13, the parties agree that neither party will be liable for breach-of-contract damages that the breaching party could not reasonably have foreseen on entry into this Agreement. No action against either party arising out of these Terms may be brought by the other party more than one year after the cause of action has arisen.
14 Mitel’s Indemnification of Customer. Mitel shall indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party arising from damage to tangible personal property located at, or from injury to or the death of any person occurring at, Customer’s premises that result from any negligent or willful acts or omissions of Mitel or of any agent, employee or contractor of Mitel that occur in the course of the performance of any Service installation or maintenance work at the Customer’s premise.
14.1 Customer’s Indemnification of Mitel. The Customer agrees to indemnify and hold Mitel harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Mitel by a third party arising from or relating to: (i) any act, error, omission, fault, negligence, or misconduct of Customer or any user of the Service or Equipment; (ii) Customer’s material breach of the Rules of Use; (iii) any claim by any employee or invitee of Customer or user other than a claim based on the gross negligence or willful misconduct of Mitel; (iv) any claim by any customer of Customer, User, or any other third party relating to, or arising from, Customer’s use of the Services or Equipment; or (v) violation of any law or regulation by Customer, any User, or any Customer employee, contractor, or agent.
14.2 Mutual Provisions. Each party's indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
15. Force Majeure. Neither party will be liable for any failure or delay in its performance under the Agreement, due to any cause beyond its reasonable control, including any act of war, act of God, earthquake, flood, embargo, riot, sabotage, terrorist attack, cyber-attack (hacking and DDOS), acts of public enemies, civil disturbances or general restraint or arrest of government and people, boycott, strike (including a general strike), lockout or other similar industrial disturbance, service interruption by a telecommunications services provider, or connectivity delays with internet providers outside of Mitel’s reasonable control, provided that the delayed party (a) gives the other party prompt notice of such cause and (b) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
16. No Lease. Except as otherwise provided herein, the Agreement is a services agreement and is not intended to and will not constitute a lease of any real or personal property. In particular, Customer acknowledges and agrees that Customer has not been granted any interest whatsoever (leasehold or otherwise) in any premises, real or personal property, equipment or servers of Mitel or in any personal property or server space leased by Mitel (except for the Equipment rental), and Customer has no rights as a tenant or otherwise under any real property or landlord/tenant laws, regulations, or ordinances.
17. Government Regulations. Customer will not use the Mitel network or the Services to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations to whose jurisdiction Customer is subject.
18. Assignment. Customer may not assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of Mitel, except to a party that acquires all or substantially all of Customer’s assets as part of a corporate merger or acquisition. The Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
20. Choice of Law and Arbitration. The Agreement will be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles. In the event of any controversy or claim arising from or related to this Agreement, its performance or interpretation, the parties, in good faith, will initially attempt to resolve the dispute between them. Except for disputes, controversies, claims or collection efforts regarding Customer’s failure to pay any charges, amounts or fees invoiced to Customer, any and all disputes, controversies and claims arising out of or relating to this Agreement or any Order Form, including its/their validity, shall be handled, determined, and resolved by arbitration conducted in Santa Clara County, California, before one (1) arbitrator in accordance with the Commercial Arbitration Rules and Mediation Procedures then in effect of the American Arbitration Association. The arbitrator’s award shall be final and binding on the parties, and judgment confirming such arbitration award may be entered thereon in any court having jurisdiction over such proceedings. Each party shall bear its own costs and expenses of preparing and presenting its case and shall bear an equal share of the expenses and fees with respect to the arbitration. The arbitrator shall not be empowered to award damages in excess of direct compensatory damages and shall not be authorized to award special, indirect, punitive, incidental, or consequential damages, and each party irrevocably waives any damages in excess of direct compensatory damages.
21. Entire Agreement. The Proposal, these Terms of Service, and any Order Form(s) issued hereunder represent the complete agreement and understanding of the parties with respect to the subject matter hereof and supersede, to the extent of any conflict, any other agreement or understanding, written or oral, between the parties with respect to the subject matter hereof. In the event of an inconsistency between the terms and conditions of the Order Form, these Terms of Service and the Order Form(s) now or hereafter appended hereto, the terms of the Order Form shall govern. Both parties represent and warrant that they have full corporate power and authority to execute and deliver each Order Form and to perform their obligations under the Agreement and that each person whose signature appears on the Proposal, these Terms of Service (if applicable) and any Order Form is duly authorized to execute such document on behalf of the respective party.
22. Surviving Provisions. The parties agree that any limitations of liability, exclusions, and disclaimers of warranties and indemnification obligations are essential to the parties’ entering into this Agreement; will survive the termination of the Agreement and will apply even if the Agreement is found to have failed of its essential purpose.