This Avid On Demand Services Agreement (“Agreement”) governs your (“Customer” or “you”) use of Avid On Demand Services, including but not limited to Avid | Edit On Demand and Avid NEXIS | Cloudspaces (the “Services”). This Agreement is between you and Avid Technology, Inc., a Delaware corporation with offices at 75 Network Drive, Burlington, MA 01803 (“Avid” or “we” or “us”). This Agreement is effective as of the date indicated in your Avid sales quote (“Sales Quote”) for the Services (“Effective Date”).
Term and Termination. The term of this this Agreement begins on the Effective Date and continues until the end of the Services term indicated on the Sales Order or until terminated in accordance with this Section 5.
Disclaimer of Warranties. To the extent permitted by law, Avid and its suppliers and online service providers give no warranties or guarantees with respect to the Services, including but not limited to warranties that the Services are error-free, fault-tolerant, or uninterruptable. Where allowed by your local laws, Avid excludes implied warranties, terms and conditions of merchantability, satisfactory quality, fitness for a particular purpose and non-infringement. In the event that Avid offers support contracts covering the Services and you purchase such a support contract, Avid will respond to support inquiries as set forth in the terms of the support contract. Avid may interrupt the Services to perform planned or unplanned maintenance. Avid will, when practical, notify customers in advance when interrupting services for planned maintenance.
Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AVID OR ITS SUPPLIERS AND ONLINE SERVICE PROVIDERS BE LIABLE TO ANY PERSON FOR ANY DIRECT, INDIRECT, SPECIAL, GENERAL, ECONOMIC, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, OR BUSINESS INTERRUPTION), OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF DATA, UNAUTHORIZED ACCESS OF DATA OR LOSS OF ANTICIPATED PROFITS, IN ANY WAY RELATED TO USE OF OR INABILITY TO USE THE SERVICES OR ACCESS CUSTOMER CONTENT, OR OTHERWISE IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IF AVID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE SOLELY TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
Force Majeure. If the performance of this Agreement or of any obligation hereunder is prevented, restricted or interfered with by reason of any cause beyond the reasonable control of the affected party, such party, upon prompt written notice to the other party, shall be excused from such performance to the extent of the aforementioned prevention, restriction or interference, provided that the party so affected shall use its commercially reasonable efforts to avoid or remove such causes of nonperformance and shall continue performance hereunder with the utmost dispatch whenever such causes are removed.
Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. These export laws govern the use of the Services (including technical data) and any Services deliverables provided under this Agreement. You agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). No data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
Concluding Provisions. This Agreement: (a) shall not be assigned by you without Avid’s prior written consent; (b) may be assigned by Avid without consent; (c) shall be binding upon the respective successors, trustees and permitted assigns of you and Avid; (d) is the product of negotiation and shall not be deemed to have been drafted by you or Avid; (e) contains article and section headings which are for convenience of reference only; (f) does not create a partnership, joint venture, agency, employment, fiduciary or other similar relationship between you and Avid or authorized you to waive any right, or assume or create any contract or obligation of any kind in the name of, or on behalf of, Avid; (g) shall not be construed as giving any person or entity, other than you and Avid and our respective successors and permitted assigns, any right, remedy or claim under or in respect of this Agreement or any provision hereof; (h) shall remain valid and enforceable despite the holding by any court or arbitrator that any specific provision is invalid or unenforceable, except for such specific provision; and (i) constitutes the entire agreement and understanding of you and Avid with respect to its subject matter and supersedes all oral communications and prior writings with respect thereto. No provision of this Agreement may be waived orally, but only by a written instrument signed by the party against whom enforcement of such waiver is sought. Avid may amend this Agreement by posting the amended Agreement at www.avid.com/legal/terms-of-use. You consent to receive all notices and official communications relating to this Agreement at the email addresses provided in the Sales Quote or otherwise provided by you.
- Services Subscription, Fees. Services are offered on an annual, monthly, or weekly subscription basis. Fees for the Services are set forth on the Sales Quote and Services invoices and may include (a) a one-time activation fee; (b) subscription fees; (c) usage and bandwidth charges; and (d) storage and download fees. Payment terms are as set forth on the Sales Quote or applicable invoice. If your actual seat, bandwidth, or storage or download usage exceeds the limits for which you have pre-paid, upon subscription renewal, you may be required to renew at a higher subscription level at additional cost if you wish to remain subscribed. We may suspend or cancel your Services if you materially or repeatedly exceed your pre-paid hourly limits, bandwidth, storage or download usage. Pre-paid Services subscriptions must be activated within ninety (90) days of purchase. In the event of expiration or termination of your Services subscription, no fees will be refunded, and any unused pre-paid Services will be forfeited. We may suspend or cancel your Services in the event of non-payment of fees. In such event, you may lose access to your Customer Content until all fees due are paid. Upon expiration or termination of your subscription, Avid will delete your Customer Content. Fees are subject to change. Upon renewal of your subscription, the fees in effect at the time of renewal will apply.
- Changes to Services. Avid may improve, update or replace the Services at any time without notice or liability. New Services features and functionality may be subject to different terms and conditions and require additional fees. Avid may discontinue Services at any time.
- License to Customer Content. By using the Services, you grant access of your media, metadata, and other content that you upload to the Services (“Customer Content”) to Avid. You represent and warrant that you or your licensors own all right, title and interest in and to your Customer Content and that you have all necessary rights to authorize Avid to provide the Services. You are solely responsible for managing your Customer Content in compliance with all applicable laws and regulations. You retain ownership of any intellectual property rights that you have in your Customer Content. When you use the Services, you grant Avid (and its third-party service providers) a worldwide, royalty–free license to use, host, store, reproduce, and modify your Customer Content. This license grant is for the limited purpose of operating the Services. Certain Services may require Avid to access cloud resources provisioned by Avid that reside on Customer’s network for the purpose of operating the Service, and you consent to such access by Avid.
- Prohibited Uses. You shall not use Services: (a) to build a competitive marketplace, product or service or to otherwise copy the features, functionality or user interfaces of the Services; (b) in any manner that interferes with, damages, accesses or uses in any unauthorized manner the hardware, software, networks or technologies of Avid, its service providers, or of any end user or any other person or entity; (c) for any purpose that is not authorized by this Agreement; (d) in any way that violates applicable law.
- Nexidia. Nexidia audio analysis and dialogue search technology may be provided by some Services, including but not limited to Avid | Illuminate on Demand. You agree not to use or permit the use of Services containing Nexidia technology for the following prohibited purposes: (i) Call Center Speech Analytics, (ii) Language Assessment, (iii) Legal Discovery, (iv) National Security and Defense, and (v) Speech Analytics (all as defined below).
- “Call Center Speech Analytics” shall mean all call center speech analytics excluding normal rich media processing with the software; provided, however, under no circumstance will you use, or authorize a third party to use, the software to index, search, and/or analyze call center customer voice interactions.
- “Language Assessment” shall mean the application of the software to measure and rate a speaker’s ability to meet defined standards of competency in accent or pronunciation of any given language.
- “Legal Discovery” shall mean the application of the software for search, review and extraction of rich media content, including audio and video, to support legal investigations in either civil, criminal, or regulatory matters.
- “National Security and Defense” shall mean the application of the software by any military, law enforcement, or government intelligence agency worldwide for the purpose of monitoring and identifying topics of interest.
- “Speech Analytics” shall mean the application of the software to generate data from spoken interactions between customers and agents, and to use this data to improve agent performance, drive better business processes, deliver market intelligence, or manage compliance with business or regulatory requirements.
- Either party may terminate this Agreement for convenience by providing notice of termination, such termination to occur at the end of the current monthly subscription. Any unused pre-paid program hours remaining upon termination will be forfeited.
- Either party may terminate this Agreement for cause if the other party materially breaches this Agreement and does not remedy such breach within ten (10) days after its receipt of written notice of such breach. Additionally, Avid may suspend or terminate the Services and/or this Agreement immediately upon notice in the event of breach of Sections 3 or 4 or for failure to pay fees when due.
- It is your sole responsibility to download any Customer Content you wish to retain prior to termination of this Agreement.
- The termination of this Agreement shall not affect any of the provisions of this Agreement which are expressly or by implication to continue in force after such termination or expiration, including any obligation to pay for Services and Sections 6-10.
- Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts without giving effect to (a) any choice or conflict of law provision; (b) the United Nations Convention on Contracts for the International Sale of Goods; and (c) the Uniform Computer Information Transaction Act. The exclusive venue for any action or proceeding arising out of or relating to this Agreement shall be the federal courts in the Commonwealth of Massachusetts located in Boston; provided, that the state courts of the Commonwealth of Massachusetts located in Boston shall be the exclusive venue if any such action or proceeding lacks federal subject matter jurisdiction.
- Jurisdiction. Each party irrevocably (a) consents to the exercise of personal jurisdiction by such courts, (b) waives any claim of inconvenient forum or other challenge to venue, and (c) agrees that all legal process, summons, notices and documents which may be served in any action or proceeding in such court may be made by sending a copy thereof by recognized express courier service to the party to be served at the address set forth on the first page of this Agreement (in the case of notice sent to Avid) and to your address provided in your Sales Order (in the case of notice sent to you), with such service to be effective upon receipt.
- Limitations on Your Remedies. To the extent permitted by law, you agree that (a) no lawsuit or any other legal proceeding against Avid relating to or arising out of this Agreement shall be brought or filed by you or your representatives more than one (1) year after the incident giving rise to the claim occurred; and (b) you will not bring any class action lawsuit (or authorize your representatives bring any class action lawsuit) against Avid or be a representative plaintiff or plaintiff class member in any such lawsuit. YOU AGREE TO WAIVE YOUR RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT.