Terms and Conditions
DESIGN SERVICES TERMS AND CONDITIONS
- GENERAL: These Design Services Terms and Conditions and the written specifications, quotations, proposals, or statement of work provided by Avid Technologies, Inc. (“AVID”) to which these Design Services Terms and Conditions are attached (collectively, the “Agreement”) shall apply to and are automatically incorporated in, all quotations, orders, agreements and contracts for goods (including without limitation, hardware, firmware and software products and parts, and design service deliverables) (collectively, the “Product” or “Products”) and services (including without limitation, services training, programming, design, consulting, maintenance, engineering, parts and repair services) (collectively, the “Service”) purchased or received by any and all customers or recipients (collectively, the “Purchaser”) from AVID. No addition to or modification of this Agreement will be accepted by or binding upon AVID unless consented to in writing and signed by an authorized AVID representative (and such consent may be withheld by AVID for any reason or no reason). Any and all terms and conditions that may be proposed by the Purchaser or appear in any Purchase Order (“PO”) and/or any document or instrument from the Purchaser, shall automatically be deemed to be objected to and not accepted by AVID unless consented to in writing and signed by an authorized AVID representative (and such consent may be withheld by AVID for any reason or no reason), and this Agreement shall take precedence, prevail, control and solely govern in all instances. The Agreement contains the entire understanding and agreement of AVID and the Purchaser concerning the subject matter thereof, and there are no promises, agreements, conditions, understandings, warranties or representations (oral or written, express or implied) regarding the subject matter of this Agreement other than as set forth in this Agreement. Any and all prior agreements with respect to the subject matter of this Agreement are hereby revoked and forever terminated. The Agreement is, and is intended by AVID and the Purchaser to be, an integration of any and all prior agreements or understandings (oral or written) with respect to the subject matter of this Agreement, and this Agreement shall not be amended or modified except upon the written agreement of AVID. The Agreement shall survive the delivery and/or completion of the Product and any Services described in this Agreement. THE PURCHASER acknowledges that IT has read the PURCHASE AGREEMENT, understands THE PURCHASE AGREEMENT, and agrees to be bound by THE PURCHASE AGREEMENT.
- ACCEPTANCE: Any and all transactions and agreements between AVID and the Purchaser are limited to and conditioned upon the Purchaser’s acceptance of this Agreement. POs are not binding upon AVID until accepted by an authorized AVID representative. AVID reserves the right to refuse service, terminate accounts or cancel orders in its sole discretion. AVID may also modify these standard terms and conditions from time to time without notice.
- CANCELLATION: If after AVID’s acceptance of the Purchaser’s PO or other order or request from the Purchaser for Product or Services the Purchaser terminates or cancels such purchase or reduces the quantities or scope of Product or Service for such purchase, then in addition to (and not in limitation of) any and all rights and/or remedies provided in this Agreement, at law or in equity, the Purchaser shall be liable for and shall promptly pay and reimburse AVID for, all costs incurred by AVID associated with such purchase, including but not limited to: materials purchased that are non-returnable and non-cancelable, back-charges from vendors, labor expended including time spent in the process of terminating the project, NRE costs, liabilities and obligations incurred by AVID, plus cancellation charges equal to fifteen percent (15%) of the cancelled portion of the project cost, in relation to such purchase.
- SCOPE CHANGES: The purchase price and delivery cost charged by AVID to the Purchaser for the Product or Services ordered by the Purchaser, may be increased by AVID as a result of the Purchaser’s changes to the requirements, specifications, or assumptions set forth in AVID’s written specifications, quotation, or order acknowledgement, and the Purchaser shall pay such increased purchase price and costs within thirty (30) days of the date of AVID’s invoice therefor.
- DELIVERY: Shipping dates are merely estimates, but every reasonable effort will be made to ship according to schedule. Delivery times do not include time for Purchaser to provide technical or requirements data or information necessary for AVID’s performance, nor time for Purchaser’s review and approval of interim milestone deliverables. Delivery times may vary depending on component availability. Purchaser agrees that AVID shall not be responsible or liable for any damages arising out of or related to any failure to deliver Product within the time prescribed therefor. The Product and Services described in this Agreement shall be deemed to be inspected and accepted by Purchaser two (2) days after the date of the Purchaser’s receipt thereof.
- INSURANCE: At all times during the term of this Agreement, Purchaser shall maintain the following insurance coverages in such amounts as provided herein:
(a) worker’s compensation and disability insurance coverage in statutory form; (b) commercial general liability insurance with coverage for bodily injury, property damage and personal and advertising injury with limits of $2,000,000 per occurrence and $4,000,000 in the aggregate, such insurance shall include coverage for the products-completed operations hazard; (c) employers liability insurance with limits of not less than $1,000,000 for bodily injury by accident and $1,000,000 for bodily injury by disease, with an aggregate limit of $1,000,000; (d) commercial automobile liability insurance with Symbol 1 (any auto) covering owned, non-owned, and hired vehicles with limits of $1,000,000; (e) Commercial Umbrella Liability Insurance, with minimum limits of $20,000,000 per occurrence, $20,000,000 for the products-completed operations hazard, and $20,000,000 in the aggregate, with the insurance required under clauses (a), (b), and (c) above scheduled as underlying insurance; (f) Errors and Omissions Insurance, including Network Security and Privacy coverage, with a minimum limit of $5,000,000; (g) Professional Liability Insurance in an amount of not less than $5,000,000 per occurrence and in the aggregate; and (h) Network Security and Privacy Liability Insurance (extending such coverage to the services contemplated by this Agreement) with a $5,000,000 limit of liability on a claims made basis.
All policies obtained by Purchaser shall be written by companies which are reasonably acceptable to AVID and have an AM Best rating of A VIII or higher. The insurance coverage under each policy maintained by Purchaser shall be primary and non-contributory with respect to insurance written in the name of AVID and the insurer shall be liable up to and including the total limit of liability set forth in the declaration without right of contribution from AVID or any other insurance company. None of the policies obtained by Purchaser shall have a self-insured retention.
All policies obtained by Purchaser shall include a waiver of subrogation in favor of AVID. Purchaser’s insurance policies must: (i) provide that AVID will receive at least thirty (30) days’ prior written notice of any material changes or cancellation thereof; and (ii) include AVID, its officers, directors and employees as additional insureds on a primary and non-contributory basis as respects any insurance under which AVID and/or its affiliates are first named insureds.
Purchaser shall deliver duly issued certificates of insurance evidencing such coverage to AVID prior to any performance under this Agreement, and thereafter on the annual anniversary of the Agreement. The amount and coverage of such insurance will not limit Purchaser’s liability nor relieve Purchaser of any other obligation under this Agreement.
If Purchaser fails to obtain or maintain any of the foregoing insurance coverages, it will assume and hereby assumes liability and risk for any and all damages, demands, claims, losses, actions, liabilities, lawsuits, judgments, and expenses (including without limitation, reasonable attorney’s fees and expenses) to the extent that same would have been covered as if the foregoing insurance coverage had been obtained and maintained.
- EXPORT CONTROL: The Product and technology purchased or received under this Agreement are subject to export control laws, restrictions, regulations and orders of the United States. The Purchaser shall adhere to all United States export laws, rules and regulations, including the U.S. Export Administration Regulations and the International Traffic in Arms Regulations, and shall not export or re-export any Product or technology received from AVID without the appropriate licenses from the United States government and the government of any destination country. Purchaser shall be responsible to obtain any license to export, re-export or import as may be required. Purchaser shall not export or re-export Product or technology to any restricted country and/or to any company, individual or government entity listed on the Denied Persons, Specially Designated Nationals, Entity, Unverified, or Debarred Parties Lists, or similar lists promulgated by the United States. Purchaser represents and warrants that it is not on the Denied Persons, Specially Designated Nationals, Entity, Unverified, or Debarred Persons Lists and is not otherwise prohibited by law from purchasing the Product and technology hereunder. Purchaser shall inform AVID in writing if the Product or technology being contracted is subject to control under the EAR or ITAR.
- DISCLAIMER. PURCHASER ASSUMES TOTAL RESPONSIBILITY FOR USE OF THE PRODUCT HEREUNDER AND USES THE SAME AT ITS OWN RISK. EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, THE PRODUCTS AND THEIR DESIGN ARE PROVIDED “AS‐IS”, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, SYSTEM INTEGRATION, DATA ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION GIVEN BY AVID, ITS AFFILIATES, CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES SHALL CREATE ANY ADDITIONAL WARRANTY. AVID DOES NOT REPRESENT THAT THE PRODUCTS WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES, BE UNINTERRUPTED, SECURE OR ERROR FREE.
THE PRODUCTS ARE NOT DESIGNED, RECOMMENDED OR AUTHORIZED FOR ANY OF THE FOLLOWING APPLICATIONS: HIGH‐RISK APPLICATIONS SUCH AS SAFETY, LIFE SUPPORT, SURGICAL IMPLANT, NUCLEAR, OR AIRCRAFT APPLICATIONS, OR FOR ANY USE OR APPLICATION IN WHICH THE FAILURE OF A SINGLE COMPONENT COULD CAUSE SUBSTANTIAL HARM TO PERSONS OR CATASTROPHIC PROPERTY LOSS; OR FOR ANY MILITARY OR WEAPONRY USE, INCLUDING BUT NOT LIMITED TO CHEMICAL, NUCLEAR, BIOLOGICAL, AIRCRAFT, MISSILE, AND SIMILAR MILITARY APPLICATIONS. PURCHASER ASSUMES ALL RISK AND LIABILITY FOR USE OF THE PRODUCTS IN ANY SUCH APPLICATIONS AND AGREES TO DEFEND, INDEMNIFY AND HOLD AVID, ITS AFFILIATES AND THE MANUFACTURER OF THE PRODUCTS HARMLESS AGAINST ALL LOSSES, LIABILITIES, CLAIMS AND DAMAGES IN CONNECTION WITH THE USE OF THE PRODUCTS IN ANY OF THESE PROHIBITED APPLICATIONS.
- INDEMNIFICATION. Purchaser agrees to defend, indemnify and hold harmless AVID and its subsidiaries, affiliates, directors, officers, employees, agents and subcontractors against all claims, damages, losses and liabilities (including reasonable and documented costs, expenses and attorney’s fees, and costs of establishing rights to indemnification) (collectively “Losses”), to the extent arising out of or resulting in whole or in part from any actual or alleged claim (each, a “Claim”) of any of Purchaser’s customers or any third party (including employees of Purchaser or AVID): (a) for breach of this Agreement or a Statement of Work by Purchaser; (b) for death or personal injury; (c) for property damage arising out of, or in any way connected with, Product or the sale, distribution use or operation thereof; (d) for product liability or violation of environmental, health, medical or safety standards; (e) that Purchaser or the Product failed to comply with any applicable rules, laws, or regulations (except to the extent such compliance is being provided by AVID as specified in a proposal or statement of work); (f), if the Product is a prototype, that the Product is not a commercial device or suitable for sale; or (g) for willful misconduct or negligent act or omission of Purchaser, its employees or its agents; provided that Purchaser shall not indemnify any such parties set forth above to the extent that the applicable Claim is a result of willful misconduct or grossly negligent act or omission of AVID or the applicable affiliates, in which case AVID shall fully indemnify Purchaser for any and all Losses with respect to such Claim.
- LIMITATION OF LIABILITY: AVID’S LIABILITY ON ANY ACTIONS, CLAIMS, OR CAUSES OF ACTION ARISING FROM OR RELATED TO THE PURCHASE AGREEMENT, THE PERFORMANCE OR BREACH OF THE PURCHASE AGREEMENT OR CONNECTED IN ANY MANNER WITH THE SUPPLYING OF ANY PRODUCTS OR SERVICES HEREUNDER, THE DESIGN, THE SALE, RESALE, OPERATION OR USE ALLOCABLE TO SUCH PRODUCTS, PART OR SERVICES THEREOF INVOLVED IN THE CLAIM, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND FOR PROPERTY DAMAGE, PERSONAL INJURY AND DEATH) OR OTHER GROUNDS, SHALL NOT IN ANY EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT, PARTS OR SERVICES INVOLVED IN THE CLAIM, REGARDLESS OF CAUSE OR FAULT. IN NO EVENT SHALL AVID BE LIABLE FOR CLAIMS BASED UPON BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED WARRANTY, OR NEGLIGENCE FOR ANY DAMAGES, WHETHER DIRECT, IMMEDIATE, OR FORESEEABLE FOR ANY EXPENSES INCURRED BY REASON OF THE USE OR MISUSE, DESIGN, SALE OR PRODUCTION OF THE PRODUCT, THE COMPONENTS THEREFOR, OTHER PRODUCTS OR SERVICES, WHICH DO OR DO NOT CONFORM TO THE PURCHASE AGREEMENT. AVID SHALL NOT BE RESPONSIBLE TO PURCHASER OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUES, SALES, DATA, BUSINESS, GOODWILL OR USE, EVEN IF AVID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION IN ANY OTHER AGREEMENT OR DOCUMENT. Any cause of action against AVID must be instituted within one (1) year from the date of purchase or provision of the Products or Services.
- FORCE MAJEURE: AVID shall not be liable or responsible for any losses or damages caused by any detentions, delays or failures to perform resulting in whole or in part from accidents, fires, Acts of God, severe weather conditions, labor disruptions, government decrees or controls, insurrections, war, risks, shortages, inability to procure or ship product or obtain permits and licenses, insolvency or other inability to perform by the manufacturer or supplier, delay in transportation, any other commercial impracticability and/or any circumstances beyond the control of AVID in its business operations.
- INTELLECTUAL PROPERTY RIGHTS:
(a) Unless otherwise expressly agreed between the parties, all ownership, rights, title and interest to or in all rights, title or interest for or associated with the Product or Services (including but not limited to intellectual property therefor; collectively, the “IP Rights”) shall be the sole and exclusive property of AVID. Upon the Purchaser’s payment in full to AVID of the total purchase price and related project costs incurred by AVID, AVID will assign all such IP Rights exclusively and royalty-free to the Purchaser. AVID shall retain its rights to the underlying engineering knowledge, design practices, technology, processes, etc. that were utilized by AVID in creating the Product per the specifications of Purchaser. The Products offered for sale by AVID may be subject to patent, trademark, copyright, design and other rights of third parties. AVID shall in no event whatsoever be responsible or liable in the event of any claim of infringement of any such rights.
(b) Purchaser will indemnify, defend and hold AVID and its affiliates, agents, officers, directors, employees and subcontractors harmless from and against all claims, damages, losses and reasonable expenses (including but not limited to reasonable attorneys’ fees), to the extent arising out of or resulting in whole or in party from i) any claim that the design of the products provided by Purchaser infringe a third party patent, copyright, trademark, trade secret or other intellectual property right, or ii) any claims arising out of the design of the product provided by Purchaser for death, personal injury, property damage, product liability or violation of environmental, health or safety standards.
- WARRANTY. Subject to Section 10, Avid provides the following warranties:
(a) Component portions of the Product that were purchased by AVID and re-sold to Purchaser may be covered by warranties originating with the original manufacturer. Such warranties, in whatever form they may exist, shall be transferred (to the extent transferable) by AVID to the Purchaser upon the Purchaser’s full payment to AVID of the purchase price invoiced by AVID to the Purchaser for or related to the Product. Copies of any applicable warranties will be supplied upon written request by the Purchaser.
(b) AVID shall carry out the Services in a workmanlike and professional manner. If the Purchaser notifies AVID in writing, within ninety (90) days from the date of AVID’s shipment of the Product to the Purchaser, of any claimed defect in the Services, and such claim by Purchaser is verified by AVID after AVID’s appropriate inspection, Purchaser’s sole and exclusive remedy shall be limited to AVID’s correction of the claimed defect at the design and documentation level, excluding repair or replacement of materials or purchased parts.
(c) Production of Product beyond the engineering prototype level shall be free from defects in workmanship for a period of ninety (90) days from the date of AVID’s shipment of the Product to the Purchaser, excluding defects in the design or engineering of the Product. Purchaser’s sole and exclusive remedy shall, at the sole discretion of AVID, be limited to either: (i) repair or replacement of the defective Product, or (ii) refund of the purchase price in exchange for return of the defective Product.
No warranty will apply if the Products are in any way altered or modified after delivery by AVID.
- AGENCY CERTIFICATION AND APPROVAL: AVID makes no claims, representations or warranties with respect to agency certifications or approval unless otherwise specifically stated in AVID’s proposal or quotation; such filings or agency approval are the sole and exclusive responsibility and obligation of Purchaser.
- SHIPMENTS: Purchaser agrees to the Ex Works rule as outlined in Incoterms 2010. Unless otherwise stated, it is the purchaser’s responsibility to arrange delivery of the product. Title shall pass to the Purchaser at the point of shipment. AVID’s responsibility and that of its suppliers ceases at the point of shipment. Delivery is not guaranteed at or to the destination. Claims for shortages or damage in transit must be made by the Purchaser to the carrier. Purchaser and AVID agree that AVID may decline to make goods available for shipment whenever, for any reason, AVID has doubt as to Purchaser’s financial responsibility, and AVID shall not, in such event, be liable for breach, default or nonperformance of any or all agreements with the Purchaser in whole or in part.
- TERMS OF PAYMENT: Payments are to be made in United States Dollars through a method of wire, ACH, check, or cash, unless otherwise indicated on AVID’s quotation. The Purchaser agrees to pay AVID directly for any fee assessed to AVID that is related to his or her payment including, but not limited to, wire fees, ACH fees, and credit card processing fees. Purchaser shall make all payments in advance of AVID performing any Services. Notwithstanding the foregoing, if AVID has notified Purchaser that its account has qualified for alternative payment terms, then Purchaser’s payment shall be due within the days specified on AVID’s invoice.
Overdue accounts will be assessed a late charge of one and a half percent (1.5%) per month on unpaid balances (eighteen percent (18%) per annum), or the largest amount allowed by the law of the State of Ohio, whichever is less. Accounts more than sixty (60) days overdue may be assigned by AVID to outside collection; Purchaser agrees to pay all charges associated with any such collection procedures (including but not limited to reasonable attorneys’ fees). Notwithstanding any claim, demand or judgments that the Purchaser may have against AVID, the Purchaser is prohibited from setting off any such amount from the amounts due to AVID under this Agreement without a court order for same. AVID shall have the right of set-off and deduction for any sums owed.
- TAXES. AVID prices and/or quotations do not include sales, use, excise or similar taxes. All applicable taxes must be paid by Purchaser to AVID, or Purchaser shall provide AVID with a tax-exempt certificate acceptable to the appropriate taxing authorities.
- GOVERNING LAW: The Agreement and all agreements between AVID and the Purchaser, shall each be governed by, and construed in accordance with, the laws of the State of Ohio without regard to conflicts of law rules. The Purchaser and AVID do each hereby agree that they shall submit themselves to the venue and jurisdiction of the competent courts of the Cuyahoga County, Ohio, or the United States District Court for the Northern District of Ohio, Eastern Division, in connection with any and all claims, allegations, causes of action or legal proceedings related to or arising from this Agreement, all agreements between AVID and the Purchaser, the Product, the components therefor and/or any equipment or Services sold or provided by AVID to the Purchaser, expressly waiving their rights to any other jurisdiction or venue which might correspond to them due to their domiciles or legal residence. The parties expressly exclude the application of the 1980 United Nations Convention of Contracts for the International Sales of Goods, if otherwise applicable.
- RESTRICTIVE COVENANTS: For a period of three (3) years commencing on the date of this Agreement (as set forth in written specifications, quotations or proposals to which these standard terms and conditions are attached), the Purchaser agrees and covenants to AVID that the Purchaser shall not hire, employ, contract with, retain, or otherwise induce (or attempt any of the foregoing) any employee or independent contractor of AVID (collectively, “Worker”) to leave or terminate such Worker’s employment, relationship or service with or to AVID or directly or indirectly assist any other person or entity in requesting or inducing any Worker to leave or terminate the employ, relationship or service of or with AVID. If the Purchaser breaches any of the foregoing provisions of this Section, then the Purchaser shall promptly pay to AVID liquidated damages equal to fifty percent (50%) of such Worker’s then-current annual salary or compensation. This provision for liquidated damages shall be in addition to, and not in limitation of, any and all rights and/or remedies provided in this Agreement, at law or in equity (including but not limited to AVID’s right to injunctive relief).
- ASSIGNMENT: Neither this Agreement nor any interest herein shall be assignable by the Purchaser without the prior written consent of AVID (which consent may be withheld for any or no reason).
- SEVERABILITY: If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, such provision(s) shall be enforced to the fullest extent permitted by applicable law, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- WAIVER: AVID’s failure to insist on performance of any term or condition contained in this Agreement, or failure to exercise any of AVID’s rights hereunder, shall not constitute a waiver of any of AVID’s rights or remedies under this Agreement.
- NO THIRD PARTY BENEFIT: The provisions set forth in this Agreement are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
- FARS/DFARS: AVID agrees only to be subject to the “mandatory flow down” provisions found in FAR Section 52.244-6. AVID shall only be subject to the DFARS that have been agreed to in writing by an authorized AVID representative.