CLOUD Services – Terms of Service
Before using the Mitel 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 Mitel services set out in the Order Form ("Services"). These Terms, and all documents referred to in them, and the Order Form together form a binding and executed written agreement ("Agreement") between Customer and Mitel, Inc., its affiliates and subsidiaries (“Mitel”) effective as of the date of Customer’s execution of the Order Form.
Customer acknowledges that the Services, the quality, performance and available features of the Services and any Equipment may be affected by: (i) the quality and speed of the broadband connection; and (ii) other usage on the broadband connection; and the Service will not function in the event of a power failure.
Mitel will register the Customer's address on the Order Form or in the Mitel customer online portal as the location where the Services will be used. It is the Customer's responsibility to ensure that this address is accurate and if it changes is updated through the online portal at ("Customer Portal"). Details to access the Customer Portal are provided at time of service activation. If this address is not accurate it may not be possible for emergency operators and authorities to identify the location of the user of the Service ("User") when they dial 112/999. If any User dials the emergency services they will need to state the location and phone number promptly and clearly as emergency operators may not have this information. Customer acknowledges and accepts that in the event of a power failure no User will be able to use the Service to call the emergency services on 112/999.
This service is available only within the UK. If a User attempts to use the Service from outside of England, Wales, Scotland and Northern Ireland they will not be able to call 112/999.
Customer agrees to ensure all potential Users are aware of the limitations of calling the emergency services using the Service.
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. Details of all fees and charges is available at www.shoretel.co.uk
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 pounds sterling currency and are based on Services ordered. Any payment not received from the Customer by the due date shall accrue interest (except with respect to charges then under reasonable and good faith dispute), at the rate of 4% above the Bank of England Base rate per annum of the outstanding balance 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 VAT. Unless otherwise stated in the Order Form, all Service Fees are exclusive of VAT.
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 of twelve (12) months each 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 Mitel Termination. Mitel may terminate this Agreement, or a particular Service, (i) if any regulatory change is introduced which affects the ability of Mitel to provide the Service, including but not limited to any authorization or license under which Mitel operates expiring or being revoked; and/or (ii) if any underlying arrangement with other operators or suppliers is terminated for whatever reason.
3.5 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 material breach, all recurring charges on the latest invoice which would otherwise be due through the end of the Service Term in effect at the time (not to exceed twenty four (24) months in total, including all applicable VAT 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 breach of the Rules of Use or illegal use of Mitel Services, facilities, network or third party networks accessed through the Mitel network, 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 breach 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-uk. Mitel may update the Service Level Agreement from time to time upon notice to Customer.
7. 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, the Equipment Policy and the proper use of the Equipment and the Services.
8. 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.
10. 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.
11. 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 expressly excludes all implied warranties and conditions including but not limited to fitness for purpose, satisfactory quality or non-infringement of 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.
11.1 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 11 above, Mitel disclaims any and all liability resulting from or related to the performance, non-performance or incorrect performance of Third Party Networks.
12. Limitation of Liability
12.1 Nothing in this Agreement excludes or limits either party's liability for death or personal injury caused by its negligence, or for any liability that cannot be excluded or limited by law.
12.2 Subject to Section 12.1, in no event shall either party be liable for any indirect or consequential damages or losses however caused and whether in contract, tort (including negligence) or breach of statutory duty including, without limitation (i) loss of business, or (ii) lost profits or revenue.
12.3 Subject to Section 12.1, under no circumstances will Mitel be responsible for any damage, loss or injury resulting from hacking, tampering or other unauthorized access or use of the Service of Customer's account or the information contained therein.
12.4 Subject to Sections 12.1 and 12.2 Mitel's aggregate liability for damages hereunder shall not exceed the total amount of Service Fees paid and/or due by the Customer.
12.5 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.
13 Mitel’s Indemnification of Customer. Mitel shall indemnify and hold harmless the Customer against any loss, damage or cost (including reasonable legal 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.
13.1 Customer’s Indemnification of Mitel. The Customer agrees to indemnify and hold Mitel harmless against any loss, damage or costs (including reasonable legal 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) breach of any applicable law or regulation by Customer, any User, or any Customer employee, contractor, or agent.
13.2 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.
14. 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.
15. 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.
16.1 Changes. Mitel may make changes to this Agreement and any document referred to in it on notice to you by posting them on the website. These changes will become effective and will be deemed accepted by Customer, (a) immediately for those Customers who purchase the Services after the updated version is published on Mitel’s website, or (b) for those having pre-existing accounts, the updated Terms of Service will be deemed effective with Customer’s continued use of the Service.
16.2 Material Changes. If Mitel changes this Agreement and such change is likely to cause the Customer material detriment it will give no less than 30 days', or such other period of notice as may be required by law, written notice of the change. Where the change causes a material detriment to Customer it may terminate this Agreement immediately on written notice to Mitel and without penalty (subject to the payment of any already incurred Service Fees) provided that such notice of termination is received prior to the end of the notice period. The changes will automatically apply to Customer once any notice period that Mitel provides has run out.
Or if to Customer at the address provided by Customer’s Decision Maker, as such term is defined in the Mitel online portal.
18. Number Porting. Number portability may be unavailable with the Service. If Customer moves its services to or from Mitel or to or from another provider, Customer may not be able to keep the same telephone number. Mitel will not process a number porting request unless Customer's account is completely accurate, including payment for all Service Fees. Where number portability is available Mitel shall take all reasonable steps to the transfer the number in accordance with standard porting procedures between communications providers in the UK.
19. Customer Support and Complaints
19.1 Customer Support. Mitel shall provide Customer with commercially reasonable telephone/web support for the Services. Support may vary depending on specific service purchased by Customer.
19.2 Complaints. In the event of a complaint with the Service Customer should contact Mitel using the details set out in the Complaints Code of Practice here www.shoretel.co.uk/ccp
19.3 ADR. If the Customer complaint cannot be resolved in accordance with the Complaints Code of Practice within eight weeks, Customer can refer the complaint to Omsbudsman Services, Mitel's approved alternative dispute resolution provider, who will review the complaint for free.
20.1 Third Party Rights. No express term of this Agreement nor any term implied under it is enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.
20.2 Severance. To the extent that any provision of this Agreement is found by any court or competent authority to be invalid, unlawful or unenforceable in any jurisdiction, that provision shall be deemed not to be a part of this Agreement, it shall not affect the enforceability of the remainder of this Agreement nor shall it affect the validity, lawfulness or enforceability of that provision in any other jurisdiction.
20.3 No Waiver. No single or partial exercise, or failure or delay in exercising any right, power or remedy by any party shall constitute a waiver by that party of, or impair or preclude any further exercise of, that or any right, power or remedy arising under this Agreement or otherwise.
21. Choice of Law and Jurisdiction. The Agreement and any dispute, claim or obligations (whether contractual or non-contractual) arising out of or in connection with this Agreement, its subject matter or formation will be governed by and construed in accordance with the laws of England and Wales.
21.2 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 or claims (whether contractual or non-contractual) arising out of or relating to this Agreement, its subject matter or formation or any Order Form, shall be subject to the exclusive jurisdiction of the English courts.
22. Entire Agreement. These Terms of Service, all the documents referred to in it; and the Order Form set out 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.
22.1 Each party acknowledges that it has entered into this Agreement in reliance only on the representations, warranties, promises and terms contained or expressly referred to in this Agreement and, save as expressly set out in this Agreement, neither party shall have any liability in respect of any other representation, warranty or promise made prior to the date of this Agreement unless it was made fraudulently.
23. 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.
24. About Mitel. Mitel, Inc. and its subsidiary, M5 Networks, LLC are companies registered in the state of Delaware, USA with registered address at 960 Stewart Drive, Sunnyvale, CA 94085, USA. Mitel UK Limited and M5 Networks, LLC are authorized to do business in the UK.