PLEASE READ CAREFULLY. THIS AGREEMENT GOVERNS CUSTOMER ACQUISITION AND ALL USE OF AVID SERVICES. UPON EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR, BY OTHERWISE ACCEPTING THIS AGREEMENT OR USING ANY AVID SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (‘PRINCIPAL ENTITY’), YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO BIND SUCH PRINCIPAL ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” AND “YOU” SHALL HEREAFTER REFER TO SUCH PRINCIPAL ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU (AND SUCH PRINCIPAL ENTITY AND ITS AFFILIATES) ARE HEREBY NOT PERMITTED AND MUST NOT USE THE AVID SERVICES (OR ANY OTHER SERVICES OR PRODUCTS OFFERED BY AVID) IN ANY MANNER.
Warning: You must not access the Avid Services if you are a direct competitor of Avid Ratings, except with prior written consent. In addition, you must not access the Avid Services for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purpose.
This Avid Ratings®, Inc. Master Services Agreement, including all Order Forms, Statements of Work, or other documents which reference or are incorporated into this Avid Ratings®, Inc. Master Services Agreement (collectively, this “Agreement”) is made and entered into as of the date of access or use (the “Effective Date”), by the signatory to the Order Form which references this Agreement (hereafter “Customer” or “you”), of the Avid Services owned by Avid Ratings, Inc., and its agents and affiliates (hereafter “Avid,” “Avid Ratings,” “we,” or “us”). Capitalized terms used in this Agreement have the meanings attributed to them herein, including in Section 13 (Certain Definitions).
- Avid Services
1.1 Avid Services License.
Subject to the terms of this Agreement and Customer’s payment of all relevant fees, Avid hereby grants to Customer a nonexclusive, non-transferable, limited license to access and utilize, for its internal business purposes, the Avid Services during the License Term. Customer Affiliates that are permitted to access the Avid Services by Customer must also be approved by Avid before they are granted such access, and Avid maintains the express right to deny access for any reason. Customer shall ensure that Customer Affiliates accessing the Avid Services comply with all relevant terms and conditions of this Agreement, and Customer shall remain liable and responsible for all actions and omissions (including all access and use of the Avid Services) of any Customer Affiliate in connection with this Agreement to the same extent as if such acts or omissions were by Customer. Any breach of this Agreement by a Customer Affiliate will constitute a breach of this Agreement by Customer. Customer is responsible for maintaining the security and confidentiality of all usernames and passwords used to access the Avid Services. Customer may hire or engage service providers and agencies to access Customer’s account applicable to the Avid Services, provided Customer ensures that such service providers and agencies use the Avid Services solely for Customer’s internal business purposes, maintain the security and confidentiality of Customer’s account, and comply with all relevant terms and conditions of this Agreement.
1.2 Appropriate Use of the Avid Services and Restrictions.
- Generally. Customer may only use the Avid Services as described in this Agreement. At all times during the License Term, Customer shall comply with all applicable laws, and the requirements stated in the Documentation. Except as expressly authorized by this Agreement, Customer shall not permit any third party to access or use the Avid Services. In addition, Customer shall not directly or indirectly through or with one or more other persons (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the intellectual property embodied in the Avid Services to (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions, or graphics of the Avid Services, or (c) copy any ideas, features, functions, or graphics of the Avid Services, (ii) use the Avid Services or any Avid Confidential Information to develop a competing service, (iii) provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use or allow others to use the Avid Services for the benefit of any third party, or (iv) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Avid Services (including any screen displays, etc.). If Customer or a Customer Affiliate is or becomes a direct competitor of Avid, Customer and Customer Affiliates shall immediately cease access and use of the Avid Services, and shall cease any monitoring of its availability, performance, or functionality.
- Export Controls. Avid provides services and uses software and technology that may be subject to U.S. export controls administered by the U.S. Department of Commerce, the U.S. Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. Customer shall not access or use the Avid Services or otherwise transfer or export or re-export to countries that the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”), each of which may change from time to time. By using the Avid Services, Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of, an Embargoed Country or Designated National.
1.3 Availability of Avid Services.
- Uptime Commitment. Subject to Section 1.3(d) (Limitations) below, Avid uses commercially reasonable efforts so that the key features of the Avid Services will be available for access and use by Customer at least ninety-nine percent (99%) of the time per calendar quarter, excluding any period of Permitted Unavailability (the “Uptime Commitment”). Absent unusual circumstances, Avid shall use commercially reasonable efforts to schedule Planned Outages during non-peak hours in the North American Central Time Zone. The Uptime Commitment and applicable remedies are subject to the terms of this section.
- Credits for Customer. In the event that the Uptime Commitment is not met, Customer will receive a credit applicable to future charges that Customer owes Avid consistent with this Section. The amount of the credit will be the greater of (i) five percent (5%) of the fees paid by Customer for the Avid Services in the most recent quarter, or (ii) an amount calculated based on the number of hours during such quarter and the duration of any and all periods of unavailability of the Avid Services short of the Uptime Commitment during such quarter as set forth in the following formula:
- Procedure. When a period of unavailability is detected by Customer, Customer shall promptly contact Avid by email or phone and advise Avid’s staff of the problem. If the staff of Avid are able to confirm Customer’s report and such unavailability is not due to Permitted Unavailability, Avid shall record the period of unavailability. Such period of unavailability will be deemed to have begun at the earlier of (i) the time such unavailability was reported to Avid by Customer, or (ii) the time such unavailability was detected by Avid’s monitoring tools. For purposes of calculating availability under this Section, Avid shall only be responsible for unavailability that it receives notice of from Customer and that Avid can confirm and verify in accordance with this Section.
- Limitations. Avid is not responsible for and the Customer credit will not apply to periods of unavailability resulting from failure by Customer to approve reasonable modifications to the Avid Services recommended by Avid to prevent periods of unavailability. In addition, Avid will not be responsible for and the Customer credit will not apply to periods of unavailability resulting from any of the following: (i) Customer modifications to or Customer uses of the Avid Services that are not authorized by Avid or permitted under this Agreement or the Documentation, or (ii) Permitted Unavailability. The right to a credit included in Section 1.3(b) (Credits for Customer) constitutes Customer’s sole and exclusive remedy and Avid’s sole and exclusive liability for failure to achieve the Uptime Commitment.
- Monitoring. Avid shall use commercially reasonable efforts to actively monitor the Avid Services for unavailability and proper operation. Avid does not guarantee that remote monitoring will detect all problems or interruptions at the time they occur.
- Generally. The Avid Services are licensed, not sold. Except for the limited license granted in Section 1.1 (Avid Services License) to access and use the Avid Services during the License Term, Avid and its licensors reserve all right, title, and interest, express or implied, in and to the Avid Services, including all changes, modifications, enhancements, and derivative works thereof. In the event that Customer makes improvements or other modifications to the Avid Services, Customer hereby assigns, transfers, and conveys to Avid, exclusively and perpetually, all right, title, and interest in, and Avid is free to use, without any attribution or compensation to Customer, all such modifications and improvements. Customer shall not use any Confidential Information of Avid to contest the validity of any Avid intellectual property. Any such use of Avid’s Confidential Information constitutes a material, non-curable breach of this Agreement.
- Work Product or Deliverables. Notwithstanding anything to the contrary in any other signed document between the parties, to the extent Avid develops any intellectual property, including modification to the Avid Services, in rendering any services, including Professional Services, in connection with this Agreement (“Work Product”), Avid shall retain all rights to any and all Work Product, or any deliverables provided by or on behalf of Avid to Customer. To the extent Customer acquires any right therein, Customer hereby assigns, transfers, and conveys to Avid, exclusively and perpetually, all rights, titles, and interests throughout the world in all such work product or deliverables, including without limitation all intellectual property or other proprietary rights therein or otherwise, except that any Customer Data contained therein (e.g., Customer’s name, trade name, trade dress, logos) will remain with Customer, subject to Section 1.5 (Customer Data) below. Customer shall execute such further documents and do such further acts as are necessary to perfect, register, or enforce Avid’s ownership of such rights, in whole or in part. Subject to the terms and conditions of this Agreement, Avid grants to Customer a nonexclusive license to use the Work Product and deliverables for its internal business purposes during the Term of the Agreement. Customer agrees that nothing in this Agreement shall be construed to limit Avid’s right to perform similar services for its other customers.
1.5 Customer Data.
1.6 Suspension of Access to Avid Services.
Avid may, in its sole discretion, suspend Customer’s access to the Avid Services (in whole or in part) for any of the following reasons: (a) to prevent damages to, or degradation of, the Avid Services or Avid’s systems; (b) to comply with any law, court order, or other governmental request; (c) to otherwise protect Avid from potential legal liability; (d) if Customer violates the terms of this Agreement and fails to remedy such breach within the time frame requested by Avid; (e) if Customer exceeds the usage, bandwidth, impressions, or the like as provided in the applicable Order Form; or (f) in the event an invoice remains unpaid for more than 30 days after the date on which payment is due under such invoice. Avid shall use reasonable efforts to provide Customer with notice before or promptly following any suspension of access to the Avid Services. Avid shall restore access to the Avid Services promptly after the event giving rise to suspension has been resolved. Avid reserves the right to charge a reconnection fee if one or more of the events listed in Section 1.6(d)-(f) occurs. Sections 1.5 (Customer Data) and 1.6 (Suspension of Access to Avid Services) are not to be construed as imposing any obligation or duty on Avid to monitor Customer’s use of the Avid Services or the Customer Data and other content uploaded by Customer and Customer Affiliates and their respective customers.
1.7 Limited Warranty.
Avid warrants to Customer that the Avid Services will operate in substantial conformity with the Documentation during the License Term. Customer’s sole and exclusive remedy, and Avid’s sole and exclusive liability, for a breach of the foregoing warranty is for Avid, in its sole discretion, to either use its commercially reasonable efforts to remedy the breach or terminate the portion of the affected Avid Services and issue Customer a credit for the prepaid, unused portion of the fee for such affected Avid Services prorated over the length of the payment term. If any guarantee, warranty, term or condition is implied or imposed in relation to this Agreement under the Australian Consumer Law or any other applicable legislation and cannot be excluded (a Non-Excludable Provision), and Avid is able to limit Customer’s remedy for a breach of the Non-Excludable Provision, then Avid’s liability for breach of the Non-Excludable Provision is limited to one or more of the following at Avid’s option:
(a) in the case of Services, the resupply of the Services or the cost of having Services supplied again; and
(b) in the case of goods, the replacement of the goods or the supply of equivalent goods, the repair of such goods, the payment of the cost of replacing the goods or acquiring equivalent goods, or the payment of the cost of having the goods repaired.
Avid shall use reasonable efforts to correct errors in the Avid Services that are reported by Customer and confirmed by Avid. In addition, Avid shall provide online access to user support information and forums, as may be made generally available by Avid to its customers from time to time at no additional charge.
- Information Security.
Avid shall reasonably adhere to its internal policies and procedures in maintaining and enforcing security measures with respect to Customer’s Confidential Information and/or data that is entered into and stored in a database controlled, maintained, and/or hosted by Avid in connection with this Agreement. Avid shall use commercially reasonable efforts to ensure that its information security policy and procedures are equal to or better than industry standards with regard to maintaining the security of information. CUSTOMER ACKNOWLEDGES THAT SECURITY SAFEGUARDS, BY THEIR NATURE, ARE CAPABLE OF CIRCUMVENTION AND THAT AVID DOES NOT AND CANNOT GUARANTEE THAT THE AVID SERVICES, AVID’S SYSTEMS, AND THE INFORMATION CONTAINED THEREIN (INCLUDING CUSTOMER’S CONFIDENTIAL INFORMATION) WILL NOT BE ACCESSED BY UNAUTHORIZED PERSONS CAPABLE OF OVERCOMING SUCH SAFEGUARDS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, AVID WILL NOT BE LIABLE FOR ANY SUCH UNAUTHORIZED ACCESS, AND ANY SUCH UNAUTHORIZED ACCESS WILL NOT CONSTITUTE A BREACH BY AVID OF ITS CONFIDENTIALITY OBLIGATIONS EXCEPT TO THE EXTENT ARISING SOLELY FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF AVID. CUSTOMER IS SOLELY RESPONSIBLE FOR THE SECURITY AND BACKING UP OF ALL CUSTOMER DATA PROVIDED TO AVID AND THE APPROPRIATENESS OF THE USE OF THE AVID SERVICES.
- Telephone Communications.
3.1 Agreements to be Contacted by Telephone.
Customer represents and warrants that it has properly notified its customers regarding, it has obtained legally enforceable consent to permit, and has retained documentation sufficient to demonstrate, Avid’s ability to contact Customer’s customers via telephone and through the use of prerecorded voice messages, autodialed calls, and/or text messages, at any time, related to promotions and Customer’s customers relationship with Avid, in a manner that is consistent with all applicable laws, including the Do Not Call Register Act 2006 (Cth), Privacy Act 1988 (Cth) and the Spam Act 2003 (Cth). Customer further represents and warrants that Customer’s customers have agreed to receive automated calls and text messages from Avid even if the customer has canceled their account with Customer or terminated their relationship with Customer, unless Customer’s customer opts out as provided below.
3.2 Opt-Outs from Telephone Communications.
Customer represents and warrants that it has properly disclosed to its customers that they may opt-out of automated calls and texts at any time, and that such opt-outs will be communicated to Avid immediately to ensure that both Customer and Avid comply with any obligations under applicable laws, including the Spam Act 2003 (Cth).
Customer may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Avid with respect to its offerings and services, including the Avid Services. Feedback is voluntary and Avid is not required to hold it in confidence. Avid may use Feedback for any purpose, including enhancement of the Avid Services, without obligation or compensation of any kind. To the extent that Avid’s use of the Feedback might otherwise infringe any intellectual property rights of the Customer, Customer hereby assigns, transfers, and conveys to Avid all such intellectual property rights.
- Consulting Services.
5.1 In General.
In the event that Avid is to provide additional professional or consulting services outside the scope of the Avid Services (“Professional Services”), the parties shall describe such additional Professional Services in a separate statement of work (“Statement of Work”) and attach each such Statement of Work to the applicable Order Form. The parties will work together in a joint effort to accomplish the services described in each Statement of Work in the manner and within the time frame described in the Statement of Work, and Customer shall pay Avid the amount(s) and at the time(s) specified in the Statement of Work.
Each party will use its reasonable efforts to accomplish the tasks assigned to it in the Statements of Work, and to cooperate with and support the other party’s performance of the tasks assigned to it, on a timely basis and in a professional manner, subject to receipt of all necessary and appropriate cooperation and support from the other party. Avid is responsible for delivering and performing only those Professional Services specifically identified in the Statements of Work.
5.3 Change Orders.
Customer must submit all change requests concerning the Professional Services to Avid in writing. On receiving each change request, Avid will evaluate the request at its then current rates and charges and provide a written response. The written response will include a statement of the availability of Avid’s personnel and resources, as well as the impact the proposed changes will have on the fee for the Professional Services, delivery dates, milestones, or warranty provisions of this Agreement. If the response is acceptable to Customer, Avid and Customer shall execute a mutually agreed upon written change order.
- Term and Renewal.
The initial term of this Agreement commences on the Effective Date and ends on the Term End Date indicated in the initial Order Form. The initial term and each subsequent renewal term will automatically renew for twelve (12) months (with appropriate prorating of prices in the Order Form), unless (a) either party provides the other party with notice of its intent not to renew at least ninety (90) days prior to commencement of the next renewal term, or (b) a subsequent Order Form extends the Term End Date to a later date, in which case such later date will be the basis for subsequent twelve (12)-month renewals. The initial term and all subsequent renewal terms are referred to together as the “License Term.”
7.1 Termination for Cause
Either party may terminate with sixty (60) days’ prior written notice to the other party upon a material breach of this Agreement by such other party, provided such breach is not cured within the sixty (60)-day notice period. Either party may terminate immediately upon written notice to the other party, if (a) a receiver or other external administrator is appointed in respect of the other party or its property; (b) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (c) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) calendar days from the date of commencement thereof.
7.2 Effect of Termination and Survival
If Customer terminates this Agreement for any reason other than Avid’s material breach of this Agreement, Customer will not receive any refund of prepaid Avid Services fees and Customer shall pay to Avid the fees not otherwise prepaid for the remaining portion of the License Term had Customer not otherwise terminated this Agreement. The following sections survive any termination or expiration of this Agreement: 1.4 (Ownership), 1.5 (Customer Data), Avid’s disclaimer of liability under 2 (Information Security), 4 (Feedback), 7 (Termination), 8 (Fees and Payment), 9 (Confidentiality), 10 (Disclaimer of Warranties), 11 (Limitation of Liability and Damages), 12 (Indemnification), 13 (Certain Definitions), and 14 (General Provisions).
- Fees and Payment.
Customer shall pay Avid fees for Avid Services on time and as stated in the applicable Order Forms. For fees and charges associated with a Statement of Work or other fees and charges not otherwise paid in advance, Customer shall pay Avid the amounts properly listed on Avid’s invoice submitted to Customer within the time frame listed in the applicable Order Form. Payments not made within such time period are subject to late charges equal to the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount, or (b) the maximum amount permitted under law. If Customer believes that an invoice is incorrect and Customer desires to obtain an adjustment of such invoice, Customer must provide Avid notice thereof including relevant details within 30 days of the invoice date. Before any renewal, Avid may increase the fees due for a renewal term on 60 days’ notice before the commencement of the renewal term, which adjustment will be effective on such renewal term commencement date. Customer is responsible for sales, use, and similar taxes associated with its receipt and use of services, including the Avid Services.
- GST.9.1 GST Law
In this clause 9, a term or expression starting with a capital letter which is defined in the A New Tax System (Goods and Services Tax) Act 1999 (Cth) and associated acts and legislative instruments (collectively, the GST Law) will have the same meaning as in the GST Law, unless the context otherwise requires.
9.2 Exclusive of GST
Each consideration or payment obligation in this Agreement is exclusive of GST unless otherwise indicated.
9.3 GST payable on a Supply
If GST is or becomes payable on a Supply made under or in connection with this Agreement, an additional amount is payable by the party providing consideration for the Supply equal to the amount of GST payable on that Supply as calculated by the party making the Supply in accordance with the GST Law.
9.4 Timing for payment of GST
The additional amount payable under clause 9.3 above is payable at the same time and in the same manner as the Consideration for the Supply.
9.5 Payment of GST
Unless otherwise stated in this Agreement, the following principles apply when determining the amount of a payment under this Agreement:
(i) if a party is entitled under this Agreement to be reimbursed or indemnified by the other party for an expense, claim, loss, liability or cost incurred in connection with this Agreement, the reimbursement or indemnity payment must not include any GST component of the expense, claim, loss, liability or cost for which an Input Tax Credit may be claimed; and
(ii) if a party sets off an amount under this Agreement, the same principles apply to calculate the amount to be set-off, as if the amount had been paid in accordance with paragraph (i).
9.6 Adjustment Events
If an Adjustment Event occurs, the parties must do all things necessary to make sure that the Adjustment Event may be appropriately recognized, including the issue of an Adjustment Note.
10.1 Confidential Information
Each party recognizes and agrees that the Confidential Information of the other is critical to their respective businesses and that neither party would enter into this Agreement without assurance that such information and the value thereof will be protected as provided in this Section and elsewhere in this Agreement. Each party’s Confidential Information will remain the sole and exclusive property of that party. Each party shall use at least the same degree of care as such party uses to safeguard the confidentiality of its own most Confidential Information (but in no event less than reasonable care), to preserve the confidentiality of any and all Confidential Information that it obtains from the other party. Neither party shall disclose any Confidential Information belonging to the other party except to perform under this Agreement, provided that such disclosure is only to personnel, affiliates, and subcontractors who are bound by confidentiality obligations as least as protective as those herein. Notwithstanding the foregoing, a party may disclose the other party’s Confidential Information with express prior written consent of such other party. If a party is requested to disclose the Confidential Information of the other party in connection with a legal proceeding, subpoena, investigative demand, or other similar process, then such party shall promptly notify the other party and, notwithstanding anything to the contrary, may disclose the Confidential Information in connection with such legal proceeding, subpoena, investigative demand, or other similar process. For the avoidance of doubt, Proprietary Information shall be considered the Confidential Information of Avid. Notwithstanding the foregoing, either Party may use the other Party’s name, logo, or mark in advertising, written sales promotions, press releases, on their respective websites, and in other publicity matters relating to the fact that Customer is or was a customer of Avid and that Customer uses or used the Avid Services, during the term of this Agreement. Notwithstanding anything to the contrary herein, Avid may combine and aggregate Customer Data with data of other customers, at which point, provided Avid de-identifies such data so that it does not contain information identifying Customer or any of its customers or individuals, such data will not be considered Confidential Information under this Agreement. Except for any Proprietary Information, Customer may republish excerpts from the Avid Services, or reference the information and analysis therein, solely for promotional or public relations purposes, provided that Customer obtains the prior written approval of Avid Ratings and prominently identifies Avid Ratings as the source of the information and analysis. Nothing herein shall limit the protections afforded to Avid Ratings by applicable trade secrets or confidentiality laws. To the extent there is any conflict between this provision and any applicable trade secrets laws, the applicable trade secrets or confidentiality laws shall govern. This section shall survive the termination of this Agreement.
10.2. Return of Confidential Information
On termination or expiration of this Agreement, each party will return or destroy, at the other party’s option, such other party’s Confidential Information. Notwithstanding the foregoing, each party will not be required to remove copies of the other party’s Confidential Information from its backup media and servers, where doing so would be commercially impracticable. In addition, the foregoing destruction and return obligation will be subject to any retention obligations imposed on each respective party by law or regulation.
10.3 Non-Exclusive Equitable Remedy
Each party acknowledges and agrees that due to the unique nature of the other party’s Confidential Information there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach or threatened breach may allow a party or third parties to unfairly compete with the other party, resulting in irreparable harm to such party, and therefore, that upon any such breach or any threat thereof, each party will be entitled to appropriate equitable and injunctive relief from a court of competent jurisdiction without the necessity of proving actual loss, in addition to whatever remedies either of them might have at law or equity before an arbitrator in accordance with Section 15.4 (Arbitration) provision of this Agreement. Any breach of this Section 9 (Confidentiality) will constitute a material breach of this Agreement and be grounds for immediate termination of this Agreement in the exclusive discretion of the non-breaching party.
- Disclaimer of Warranties.
12.Limitation of Liability and Damages.
EXCEPT FOR CUSTOMER’S INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, OR FOR EITHER PARTY’S INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, NEITHER PARTY NOR ITS VENDORS NOR ITS LICENSORS WILL HAVE ANY LIABILITY TO THE OTHER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, THE AVID SERVICES, OR ANY SERVICES RENDERED UNDER THIS AGREEMENT. THE TOTAL LIABILITY OF AVID AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, THE AVID SERVICES, AND ANY SERVICES RENDERED UNDER THIS AGREEMENT FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.
Customer shall indemnify, defend, and hold harmless Avid and its affiliates and subsidiaries and their respective officers, directors, employees, representatives, and agents from and against any and all claims, losses, liability, damages, costs, and expenses (including reasonable out-of-pocket expenses and attorneys’ fees, and penalties under the Do Not Call Register Act 2006 (Cth), Privacy Act 1988 (Cth) or the Spam Act 2003 (Cth) incurred by Avid as a result of any claim by a third party (including a government regulator) arising from (i) Customer’s breach of this Agreement, including breach of the warranties in Section 1.5 (Customer Data), breach of Section 3 (Telephone Communications), or breach of Section 9 (Confidentiality); (ii) use of the Avid Services in breach of this Agreement; or (iii) any specifications or other intellectual property provided by Customer, including Customer Data. With regard to the foregoing indemnification obligations, Avid agrees to promptly notify Customer in writing of such claim, (except in relation to penalty proceedings brought by a government regulator) permit Customer sole authority to control the defense or settlement of such claim, and provide Customer reasonable assistance (at Customer’s sole expense) in connection therewith.
- Certain Definitions.
As used in this Agreement, the terms below when capitalized have the following meanings:
“Avid Services” means the suite of survey tools, social media tools, video production tools, data and analytical platforms, and other applications ordered in one or more Order Forms, which are created and hosted by Avid or its agents and made available for remote access and use. The use of Avid Services may entail access to software, systems, web applications, data, technology, information, proprietary or otherwise, designs, drawings, schematics, manuals, instruction materials, written communications, and/or any other materials known or reasonably known to be property of Avid, and Customer agrees to use these Services in strict accordance with this Agreement and/or the expectation of the parties as defined in each applicable Order Form. The Avid Services do not include social media destination sites (such as Facebook, Twitter, etc.) or their respective offerings or services. A detailed description of the features of the Avid Services is located in the Documentation. Avid may update or make changes to the functionality of the Avid Services from time to time.
“Confidential Information” means all nonpublic information and material that from all the relevant circumstances should reasonably be assumed to be proprietary or otherwise confidential, including (i) each party’s source and object code, prices, trade secrets, mask works, databases, hardware, software, designs and techniques, programs, engine protocols, models, displays and manuals, and the selection, coordination, and arrangement of the contents of such materials, and (ii) any unpublished information concerning research activities and plans, customers, marketing or sales plans, sales forecasts or results of marketing efforts, pricing or pricing strategies, costs, operational techniques, strategic plans, and unpublished financial information, including information concerning revenues, profits and profit margins. Further, Confidential Information of Avid includes, but is not limited to, nonpublic information related to the details and components of the Avid Services and the terms of this Agreement, including those related to pricing. Confidential Information does not include information that (a) is or becomes generally known to the public or made available on the Internet at any time by any means other than a breach of the obligations under this Agreement of a receiving party; (b) was previously received by the receiving party without restriction or received by the receiving party from a third party who had a lawful right without restriction to disclose such information; or (c) is independently developed by the receiving party.
“Customer Affiliate” means (a) an entity that controls, is controlled by, or is under common control of Customer, or (b) an individual or entity listed or otherwise described on the Order Form.
“Documentation” means the documentation provided by Avid or made available on Avid’s website at the time of access that describes the features and functions of the Avid Services, including any updates, enhancements, modifications, and improvements to the features and functions that Avid may provide from time to time, consistent with the developing nature of technology and Avid innovation.
“Force Majeure Event” means any act or event, whether foreseen or unforeseen, that (a) prevents a party from either performing its obligations under this Agreement or satisfying any conditions to the obligations of the other party under this Agreement, (b) is beyond the reasonable control of and not the fault of such nonperforming party, and (c) such nonperforming party has been unable to avoid or overcome by the exercise of reasonable diligence. Notwithstanding the foregoing, a Force Majeure Event does not include economic hardship or cost increases.
“Order Form” means the one or more signed order forms which reference or are incorporated into this Agreement.
“Permitted Unavailability” means unavailability of the Avid Services due to Planned Outages, a Force Majeure Event, any software, hardware, or telecommunication or digital transmission failures or interruptions, Internet slow-downs or failures, third party software, hardware, or service failures, or any actions or inactions of Customer or Customer’s vendors or service providers, such as Facebook®, Twitter®, and the like, that prevents, limits, or degrades the availability or use of some or all of the Avid Services.
“Planned Outages” means the period of time during which Avid conducts standard systems maintenance.
“Proprietary Information” means any and all proprietary information of Avid provided, transmitted, or otherwise disclosed to Customer in connection with this Agreement, including such proprietary information contained within any information and analysis provided by or on behalf of Avid to Customer in the performance of the Avid Services, such as the Construction Process Survey, the Homebuyer Experience Survey, the Registration Card Survey, the Warranty Process Survey, the Annual Homeowner Survey, the Avid Home Buyer Satisfaction database, the Avid Homebuilder database, the Benchmark Averages database, and the Avid Reports Reporting System
“Term End Date” means the date of the same title set forth in the applicable initial Order Form.
- General Provisions.
15.1 Notices. To be effective, any notice, consent, or communication required or permitted to be given in connection with this Agreement must be in writing and personally delivered or sent by messenger, fax, overnight courier, email, or certified mail and addressed to the address specified on the most recent Order Form, to the attention of the Chief Executive Officer. Each party shall promptly notify the other of any change to such party’s address or contact information. All notices, consents, and communications are deemed delivered and received by the receiving party (i) if personally delivered or delivered by messenger, on the date of delivery or on the date delivery was refused, (ii) if delivered by fax transmission, upon receipt of fax confirmation of the party transmitting such fax, (iii) if delivered by overnight courier or certified mail, on the date of delivery as established by the return receipt, courier service confirmation, or similar documentation (or the date on which the courier or postal service, as applicable, confirms that acceptance of delivery was refused or undeliverable), or (iv) if emailed, the date on which the email is confirmed through an acknowledgment of receipt by either the intended recipient or other third party confirmation of delivery service (with an automatic “read receipt” not constituting receipt of an email).
15.2 Amendments and Waivers. No amendment, rescission, or termination of this Agreement or any of its terms is effective unless it is in writing and signed by the party against whom enforcement is sought. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, operates as a waiver or estoppel of any right, remedy, or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose that it is given and is not to be construed as a waiver on any future occasion or against any other person. To the extent any course of dealing, act, omission, failure, or delay in exercising any right or remedy under this Agreement constitutes the election of an inconsistent right or remedy, that election does not either constitute a waiver of any right or remedy or limit or prevent the subsequent enforcement of any contract provision.
15.3 Assignment. Customer shall not assign, transfer, or delegate its rights or obligations under this Agreement without prior written consent of Avid. Avid may assign, transfer, or delegate its rights and obligations hereunder, as it deems appropriate by providing Customer notice. Any purported assignment of rights or delegation of performance in violation of this section will be void. This Agreement binds and inures to the benefit of the parties and their respective successors and permitted assigns.
15.4 Arbitration. Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, including any questions regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Australian Disputes Centre (ADC), or such other administrator as the parties shall mutually agree upon. The arbitration shall be conducted in New South Wales in accordance with the ADC Rules for Domestic Arbitration operating at the time the dispute is referred to ADC (Rules). The terms of the Rules are hereby deemed incorporated into this Agreement. This clause shall survive termination of this Agreement.
15.5 Governing Law. The laws of the State of New South Wales govern all matters arising out of or relating to this Agreement, including, without limitation, its interpretation, construction, performance, and enforcement, without giving effect to such state’s conflicts of law principles or rules of construction concerning the drafter hereof. The parties hereby irrevocably and unconditionally submit to the jurisdiction of the federal and state courts located in New South Wales, Australia for the purpose of any suit, action, or other proceeding arising out of or based upon this Agreement, which courts are the exclusive forum for any such suit, action, or other proceeding.
15.6 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this Agreement will not be affected or impaired.
15.7 Entire Agreement. This Agreement, together with the Order Forms and any other exhibits and attachments hereto and thereto, constitutes the entire and final agreement between the parties. It is the complete and exclusive expression of the parties’ agreement on the matters contained in this Agreement. All prior and contemporaneous negotiations, term sheets, letters, memoranda, and other discussions and agreements, either oral or in writing, between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. No provision of this Agreement may be explained, supplemented, or qualified through evidence of trade usage or a prior course of dealings. In entering into this Agreement, neither party has relied on any statement, representation, warranty, or agreement of the other party except for those expressly contained in this Agreement. In the event of a conflict between the body of this Agreement and any Order Form, Statement of Work, exhibit, or other attachment, the governing priority of the documents is as follows: (a) this Agreement, (b) Order Form(s), (c) Statement(s) of Work, and (d) exhibits or other attachments, unless (i) the conflicting provision expressly states that it amends or supersedes a document that is listed in this sentence as having higher governing priority, (ii) such document is signed or initialed by both parties, and (iii) such document is dated as of or after the document that it amends or supersedes.
15.8 Relationship of Parties. The parties to this Agreement are independent contractors; there is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf.
15.9 Force Majeure. Neither party shall be responsible for failure or delay in completing its obligations hereunder if, and to the extent, such failure or delay is due to labor disputes, strikes, fire, riot, war, acts of God, or any other causes beyond the reasonable control of such party. In the event that a party hereto is prevented from completing an obligation hereunder because of force majeure, it shall fulfill such obligation as soon as reasonably possible following the elimination of the event of force majeure. Neither party will have the right to claim damages or to terminate this Agreement as a result of a Force Majeure Event.
15.10 Affiliates, Subcontractors and Vendors. Some or all of the Avid Services, and any support and Professional Services, may be provided by Avid’s affiliates, agents, subcontractors, and information system vendors. The rights and obligations of Avid may be, in whole or in part, exercised or fulfilled by the foregoing entities. Avid shall ensure such entities comply with all relevant terms of this Agreement and any failure to do so shall constitute a breach by Avid.
15.11 Publicity. Avid may identify Customer as a client in its client listings, websites, and other promotional materials. In addition, Avid may issue a press release regarding the parties’ new relationship under this Agreement.
15.12 No Third Party Beneficiaries. Except for Avid’s suppliers and licensors, this Agreement shall not be construed to make any person or entity a third party beneficiary hereof.
15.13 Headings. The descriptive headings of the sections and subsections of this Agreement are for convenience of reference only. They do not constitute a part of this Agreement and do not affect this Agreement’s construction or interpretation.
15.14 Counterparts. If the parties sign this Agreement in counterparts, each counterpart constitutes an original, and all counterparts, collectively, constitute only one agreement. The signatures of all the parties need not appear on the same counterpart, and delivery of a signed counterpart signature page by fax or other electronic transmission is as effective as signing and delivering an original.