Avaya Software Re-Licensing Policy including use with Global License Portability

Last Update: June, 2011

This document was formerly known as Appendix E.

NOTE: This Policy applies globally to all Systems (equipment and software) sold under the Avaya brand that are available through Avaya's Product Licensing & Delivery System (“PLDS”) and combines and supersedes all earlier versions for such products. Avaya reserves the right to amend or change this Policy at its sole discretion at any time.

-->INTRODUCTION[Author ID1: at Tue Aug 12 10:32:00 2003 ]

Avaya equipment (hardware and media) is sold to end-user-customers. Ownership of the equipment transfers from Avaya (or an Avaya Authorized Channel Partner) to the end-user customer. Software is not sold to the end-user customer, but remains the property of Avaya or its third party suppliers. The end-user is granted a license to use the software subject to payment of applicable license fees and other terms. When an end-user customer seeks to transfer an Avaya “System,” which includes equipment and software or stand alone software products to a new owner, it is necessary for the new owner to obtain a software license from Avaya before it is authorized to use the software. This software re-licensing policy (“Policy”) addresses the requirements for re-licensing Avaya software and describes when software re-licensing fees will and will not apply.

-->POLICY DESCRIPTION[Author ID1: at Tue Aug 12 10:32:00 2003 ]

For the purpose of this Policy, the end-user customer is the entity that licenses the software from Avaya (or an Avaya Authorized Channel Partner) for the purpose of providing communication services solely for itself or to serve as a ”Service Provider” for third parties (e.g. managing the software for the internal use of outsource service customers; operating a call center for outsource customers; etc.).

The software license provides the licensee with a personal, non-sublicensable, non-exclusive, non-transferable right to use the software for licensee's internal business purpose at the indicated capacity and feature levels only with the equipment for which the software was obtained at locations where the software is initially installed, (1) except as otherwise expressly permitted by the Global License Portability Policy (“GLP” or “GLP Policy”) and (2) subject to the payment of any applicable license or other fees, applicable license types and other license restrictions as set forth in Avaya's Software License Terms which are available through the following website: http://support.avaya.com/LicenseInfo/.

An end-user customer may sell the equipment to another entity. However, the end-user may not sell or transfer the software license. Rather, Avaya will license the software to the equipment's new purchaser provided that such purchaser executes a written software license and pays the applicable re-licensing or other fees for new software as provided in this Policy. In addition, certain features or functionalities which are associated with a support contract require support coverage by the new entity.

End-users should be aware that use of Avaya software without a valid license is a violation of Copyright law and an act of software piracy for which Avaya will take appropriate legal action.

This Policy is also applicable when the end-user customer is moving licenses to another server/location as part of the GLP Policy. The GLP Policy may be shared with our end-customers, and is accessible to external users at License Management on Support.Avaya.com.

WHEN RE-LICENSING FEES DO APPLY

The following examples demonstrate circumstances when the end-user customer changes and re-licensing fees do apply:

• The end-user customer sells the System or seeks to transfer software to a new end-user customer;

• The end-user customer finances the System and the finance entity sells the System or seeks to transfer the software to a different end-user customer;

• The end-user customer is a Service Provider, and it sells the System or transfers stand-alone software to an entity that was using its services.

Re-licensing fees will apply if the licenses remain on the current server or are moved to a different location per the GLP Policy.

-->Process for Ordering, Licensing and Registration when Re-licensing Fees Apply[Author ID2: at Tue Apr 16 09:54:00 2002 ]-->[Author ID2: at Tue Apr 16 09:54:00 2002 ]

1. The requestor gathers information about the equipment being resold and obtains information regarding the proposed new licensee, the circumstances surrounding the transfer and the use to which the new licensee will be making of the software.

2. Determine if re-licensing is necessary via this Policy document.

3. If the transfer is permitted, the new owner or assignee of the System must agree in writing to the terms and conditions of Avaya's End User License Agreement which is available at http://support.avaya.com/LicenseInfo/ (“EULA”).

4. When applicable, Avaya will configure a new System design to determine which software license will apply. All desired software must be purchased as new. This applies to pricing for System software licenses, user/ports/mailbox/etc. software licenses and any optional feature licenses requested by the end-user customer.

5. Since the existing hardware may be at a previous release, an upgrade design must also be performed to determine the hardware material codes needed to upgrade the System to the most current release.

6. Channel Partners will forward both designs to their Distributor. The new software material codes and hardware material codes (if needed with an upgrade) must be combined on one order to determine the total dollar price of the System. Upgrade software material codes must be removed.

7. The SAP order is placed. If hardware is required for the upgrade, it will ship via the order.

8. For Communications Manager 5 and earlier versions only (“CM”), you must fill in the attached RFA form and send it to the RFA HelpDesk requesting them to Revert Back the System Record (SID) of the existing system and release the Serial Number to be used for the license.

9. The SAP order from step 8 above must also be used in RFA to generate the new license file for CM ver. 5 (and earlier). Use the "New Install" menu selection from RFA.

10. If a Channel Partner requires Avaya maintenance or System certification, follow the standard process. The System must be registered with Avaya under the new Sold-To number. If the System was previously registered, the hardware records from the old owners record should be transferred to the new record.

11. Submit documentation supporting the transfer of equipment with the pre-registration form (i.e. bill of sale, bankruptcy distribution of assets orders, etc.). Also include the prior owner's sold to number if available.

NOTE: Only software that is generally available will be made available for re-licensing. When more than one release of software for a particular product is factory shipped, the most current release will be restricted to newly shipped systems/adjuncts and upgrades of those units fully worked and certified.

WHEN RE-LICENSING FEES DO NOT APPLY

The imposition of re-licensing fees does not apply in certain circumstances when title to the System equipment changes, provided the original end-user and/or the end-user's customers remain the same. This will apply if the licenses remain on the current server or are moved to a different location per the GLP Policy.

In the following examples, the customer's end-user or license beneficiary does not change and therefore re-licensing fees are not necessary. Avaya will generally permit a transfer of the software right to use license subject to the new owner or assignee of the System agreeing in writing to the terms and conditions of Avaya's EULA. These examples are intended to be illustrative only; each matter will be evaluated on a case-by-case basis.

• The end-user customer is absorbed into or acquired by another entity by merger, buyout, etc., and title to the equipment is conveyed to the acquiring entity. Note: if the equipment is transferred to a different organization within the acquiring entity, resulting in a change of the customer's end user or license beneficiary, re-licensing fees would apply;

• The end-user customer sells the equipment to a company that is to manage the System solely for the benefit of the same end-user customer. Note: if the new equipment owner uses the System for the benefit of another entity or multiple entities, or the end-user customer changes, re-licensing fees would apply;

• The end-user customer had previously leased the System through a finance company, and subsequently purchases the System outright;

• The end-user customer purchases a System, and subsequently sells it to a leasing company solely for financing purposes. The end-user customer continues to be the sole beneficiary of the System;

• The end-user customer is a Service Provider (e.g., tenant Service Provider, outsourcer, etc.) and the entity to which it provides services changes or expands to additional entities.

In each instance where re-licensing is sought without paying re-licensing fees, written authorization is required from a qualified Avaya representative prior to the license transfer. Subsequent to the re-licensing, if the new license assignee materially changes its use of the software from the above description (e.g., the beneficiary entity or end user of the software changes such that it is not within the scope of the original license grant), then licensing fees may apply. It is the obligation of the assignee to provide written notification to Avaya of such a change. Any failure to provide such notification shall automatically terminate the license. Moreover, Avaya must be notified each time a re-license is sought and/or performed.

-->Process for Re-Registration when Re-licensing Fees Do Not Apply[Author ID2: at Tue Apr 16 09:54:00 2002 ]

1. If a Channel Partner requires Avaya maintenance or System certification, follow the standard process. The System must be registered with Avaya under the new Sold-To number. If the System was previously registered, the hardware records from the old owners record should be transferred to the new record.

• Submit documentation supporting the transfer of equipment with the pre-registration form, i.e. bill of sale, bankruptcy distribution of assets orders, etc. Also include the prior owner's sold to number if available.

2. If the new owner or assignee of the System refuses to execute the EULA or pay the applicable re-licensing or other fee, or if the software is no longer to be used by the end-user customer, the end-user customer shall either return the software, together with any copies, or destroy the software and all copies, and provide Avaya with prompt written notice of such destruction.

Avaya Software Re-licensing Policy

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