End User License Terms

Table of Contents

• EULA
• BREACH; CUSTOMER INDEMNITY
• INTELLECTUAL PROPERTY
• CONFIDENTIALITY AND DATA
• WARRANTY
• DISPUTE RESOLUTION AND GOVERNING LAW
• REGULATORY AND NOTICES

These End User License Terms (“EULA Terms”) apply to any and all Products, including but not limited to those contained in, packaged with, or supplied in connection with physical media, hardware, Products, Services, or Specified Work Products (each as defined in the Agreement). Customer acknowledges and agrees that it shall not receive under the Agreement, or by implication, any right, title or interest in, or any license to, Avid’s Confidential Information (defined below) or any intellectual property rights therein, except to the extent expressly set forth in the Agreement.

 

LIMITED RIGHTS TO INSTALL AND USE THE SOFTWARE. The Software is licensed, not sold. Avid may grant you one or more of the following rights as stipulated in the applicable Quote and/or SOW, and in accordance with your purchase of the corresponding Subscription including software license (if applicable) and the applicable terms and conditions in the Agreement. The Agreement only gives you certain rights to use the Software, which may be revoked if you do not follow all terms of the Agreement. Avid and its suppliers reserve all rights not expressly granted to you in the Agreement. The Software is protected by copyright and other intellectual property laws and treaties.

 

Subscription-Based Licenses. For Software licenses granted on a subscription basis (“Subscription-Based Licenses”), you are permitted to access the most current version of the Software tier to which you subscribe during the term of your Subscription for your (a) personal enjoyment or (b) internal commercial use excluding resale, sublicensing, hosting, or making the Software available to third parties (“Internal Business Use”), as permitted by and subject to the restrictions of the applicable license set forth in the Quote and the Agreement. Upon expiration of the subscription period or non-payment of the subscription fee, the Software may become inactive without notice and may not be reactivated until the subscription is renewed, payment is received, or a new subscription is purchased. If your license limits the number of hardware devices on which you may install and/or use the Software, you may transfer your licensed copy of the Software between devices, provided that you completely remove the Software from the former device and never exceed the total allotted hardware devices under your license.

 

Device License. For Device Licenses or “node-locked licenses”, you may install one (1) copy of the Software on one (1) hardware device and run the Software on only that device for your Internal Business Use or your personal enjoyment.

 

Volume License. For Volume Licenses, you may install one (1) copy of the Software on one hardware device and use the Software on only that device for your Internal Business Use or personal enjoyment. You may deactivate licensed devices and redeploy your purchased volume licenses to different devices within your internal computer network using the administration tools provided to you by Avid.

 

Concurrent User License. For Concurrent User or “floating licenses”, you may install one or more copies of the Software on hardware devices within your local computer network for your Internal Business Use or personal enjoyment. The Software may be used concurrently by a number of individuals equal to or less than the number of concurrent user licenses you have purchased.

 

Commuter License. For Commuter Licenses, you may install one or more copies of the Software on hardware devices within your internal computer network for your Internal Business Use or personal enjoyment. The Software may be used concurrently by a number of individuals equal to or less than the number of Commuter User licenses you have purchased. In addition, licenses may be assigned to individual hardware devices for use outside of your internal computer network. When a license is assigned to an individual deviceʢ that license is no longer available for use by concurrent users on your computer network.

 

Virtualization License. Any installation and use of Software in an environment where the host operating system is virtualized (“Virtualized Environments”) requires purchase of or subscription to a “Virtualization License”. You may not install, deploy or use the Software in a Virtualized Environment except subject to a Virtualization License. You may install one or more copies of the Software in Virtualized Environments on hardware devices within your internal computer network for your Internal Business Use or within an AWS environment maintained by you for your Internal Business Use, provided that you identify Avid as your Digital Partner-of-Record on your AWS account and otherwise deploy the Software as instructed by Avid. The Software may be used concurrently by a number of individuals equal to or less than the number of virtualization licenses you have purchased.

 

Hardware Key License. For Hardware Key or “dongle” licenses, you may install such Software on multiple hardware devices for your Internal Business Use or personal enjoyment, but you may only use the Software on one hardware device at a time, and only in connection with your properly authorized hardware key. Licenses offered on this basis require a special hardware key to function (such as the PACE iLOK USB key).

 

Free Download License. For Free Download Licenses, you may download, install, and use such Software for your Internal Business Use or your own personal enjoyment subject to any additional terms that apply to the Software, but you may not redistribute the software or make use of the Software available to others.

 

Avid Storage Suite Software License. AirSpeed software, Avid NEXIS software, and other Avid Storage Suite software (“Storage Suite Software”) is licensed solely for your Internal Business Use or personal enjoyment in connection with genuine Avid servers and other Hardware as configured and provided by Avid (“Storage Suite Hardware”). You may only install Storage Suite Software on your Storage Suite Hardware. Your use of Storage Suite Software is limited to the storage capacity of your Storage Suite Hardware as configured and provided by Avid. Your use of Storage Suite client software is limited to the number of seats licensed to you by Avid.

 

Pre-Release Product License. Pre-Release or beta Software and/or Hardware that has not been made available to the public (“Pre-Release Products”) are licensed solely for the purpose of previewing, testing and discussing certain Avid unreleased technology (the “Purpose”) as detailed in the SOW or the Product beta test agreement or technology preview agreement. The Pre-Release Product, and all information relating thereto (including its existence, features, performance, test results, documentation, and any observations or analyses), are deemed Avid’s Confidential Information (as defined below in the “Confidentiality and Data” section) for purposes of this Agreement. Installation, evaluation and use of the Pre-Release Product is further subject to the requirements and limitations delineated in the SOW describing the proof-of-concept engagement. In exchange for providing the license to use a Pre-Release Product, you will provide Avid with Feedback (as defined below). You further agree that Avid shall be the sole owner of Feedback and may freely use, disclose, reproduce, license, distribute and otherwise commercialize the Feedback in any Product, Service, specification or other documentation, including but not limited to the Pre-Release Product. You will not disclose, publish, benchmark, or otherwise make available to any third party any information regarding the Pre-Release Product without Avid’s prior written consent. You also acknowledge that the Pre-Release Product may have defects or deficiencies that make it unsuitable for use in any type of critical production application where failure of the Pre-Release Product to function properly could cause any form of loss to You or any third party (“Production Situation”). You agree not to apply the Pre-Release Product in any Production Situations. While Avid’s current intent is to develop and generally release a commercial version of the Pre-Release Product, Avid does not commit, promise, or agree to finally release and/or offer for sale a commercial version of the Pre-Release Product. Avid reserves the right to unilaterally cease and abandon any efforts to release a commercial version of the Pre-Release Product at any time and for any reason, without any obligation or liability whatsoever. In the event of such cessation, your participation under this Agreement does not constitute an obligation or commitment to the purchase/license any commercial version of the Pre-Release Product if ever finally released or offered for sale by Avid.

 

LIMITED RIGHTS TO MEDIA ELEMENTS. The Software may include certain pictures, animations, sounds, music and video clips provided by Avid (“Media Elements”) for your use within the Software and in accordance with the Agreement. You may create your own works integrating these Media Elements, and copy, modify, distribute, display, and perform your derivative works. You may not sell, license or distribute the Media Elements by themselves or as part of any collection, product or service that derives value from the Media Elements themselves. This section does not apply to royalty-bearing or commercially licensed pictures, animations, sounds, music and video clips, including but not limited to Splice content available within Pro Tools.

 

LICENSE CONDITIONS:

 

Location. All rights associated with licenses granted under any Quote, SOW, and/or the Agreement are limited to the country in which you acquire the license, unless you acquire the license in the European Union or the European Free Trade Association, in which rights associated with this license are limited to the member countries of the European Union and the European Free Trade Association.

 

Technical Protections. Avid Products, including Software, may include technological measures designed to prevent or detect unlicensed or other unlawful use of the Software. Circumvention of these technological measures is prohibited to the maximum extent permissible under applicable law. Any attempt to circumvent technical limitations may render the Software or certain features unusable or unstable, may prevent you from updating or upgrading the Software, and such attempt constitutes immediate grounds for termination of the license at the sole discretion of Avid.

 

Reverse Engineering and Copying. You are prohibited from, and agree not to reverse engineer, decompile or disassemble the Software to the maximum extent permissible under applicable law. If the Software is distributed with third party components licensed under the terms of the GNU Lesser General Public License (LGPL), you may reverse engineer the Software for the sole purpose of debugging permitted and lawful modifications to the LGPL software. However, modified software is not covered by your limited warranty. Undertaking any of the above will disentitle the Software from Support Plan coverage. Additional information is available in the section titled “Exclusions from Warranty”. You shall not copy, translate, port, modify, enhance, or make derivative works of the Products. You may copy the Software only to the extent necessary for backup or archival purposes in support of your use of the Software in strict compliance with these UTCs and the terms of the Agreement. You must include all copyright and other legal notices appearing on the Software in any copies that you make.

 

No Software Hosting or Rental. You may not make the Software available for anyone to download, copy or use. You may not use the Software or functionality of the Software to offer hosted services to the public. You may not rent the Software to anyone.

 

APIs. Except as provided in this Agreement, you may not use, call or otherwise interact with an Avid API or endpoint. In case a separate agreement to this effect exists, it shall be subject to the limitation of liability stipulations provided under these UTC.

 

No Reconfiguration. The Software is licensed for installation and use only in the manner it was provided to you, as configured by an automated installation program provided with the Software. You may not separate the components contained in the Software or otherwise reconfigure the Software (i) to circumvent technical protections or limitations on the use of the Software, (ii) to exceed the scope of the license you have purchased or subscribed to, or (iii) for any other reason or use inconsistent with this Agreement or applicable law.

 

Academic Use. If the Software is designated or specially-priced as an "Academic" or "Education" version in the Quote or other ordering document, it is licensed only for educational, non-commercial use by students, faculty, and staff of an educational institution.

 

Evaluation Use. If the Software is designated or specially-priced as an “Evaluation,” “Trial,” "Not for resale" or "NFR" version in the Quote or other ordering document, you may only use the Software for demonstration, testing, or evaluation purposes, and not for commercial purposes.

 

Trial Use. If the Software is designated or specially-priced as a time-limited “Evaluation,” “Loan,” “Trial,” “Rental,” or "Temporary" version in the SOW, the rights granted to you by Avid expire at the end of the time period.

 

Internet Access. Software requires an internet connection for activation, validation, and renewal of the Software. The Software may become inactive without notice in the event the Software cannot access the Internet or an activated license is not detected.

 

Fonts. Certain Avid products may include propriety or third-party fonts (“Fonts”). Fonts may be used solely within the Avid products that include such Fonts.

 

Third Party Software. Software may be distributed with components from other vendors that are subject to different terms. Your installation and use of those components is subject to those terms, which are included with the installers for Avid Products or noted in the documentation. Nothing in this Agreement limits rights granted to you by third parties, which may include rights under free software or open source software licenses.

 

Third Party Information. Avid may include information about third party products and services, including links to web sites run by others. Avid is not responsible for, and does not endorse or sponsor, this third-party information.

 

Modifications and Updates. Avid reserves the right, in its sole discretion, to alter or update the Software at any time with or without notice, including, without limitation, features, specifications, capabilities, functions, licensing terms, release dates, general availability or other characteristics. You agree to be bound by subsequent changes to licensing terms which can be found at https://www.avid.com/legal/end-user-license-terms and acknowledge that Avid shall have no liability to you as a result of any such changes to the Software, as detailed in the Warranty section of these UTC.

BREACH; CUSTOMER INDEMNITY

 

Breach:

Avid may suspend or terminate (a) provision of Products and/or Services; and/or (b) the agreement between you and Avid immediately upon notice in the event of breach of the Agreement, including without limitation, failure to pay fees when due.

 

In such event, you may lose access to your Customer Content until all fees due are paid.

 

CUSTOMER INDEMNITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CUSTOMER AGREES TO DEFEND, INDEMNIFY, AND HOLD HARMLESS AVID AND ITS SUBSIDIARIES, AGENTS, LICENSORS, MANAGERS, AND OTHER AFFILIATED COMPANY, AND THEIR EMPLOYEES CONTRACTORS, AGENTS, OFFICERS, AND DIRECTORS, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, OBLIGATIONS, LOSSES, LIABILITIES, COSTS, OR DEBT, AND EXPENSES (INCLUDING BUT NOT LIMITED TO LEGAL FEES) ARISING FROM ANY NEGLIGENT ACT OR OMISSION, WILLFUL MISCONDUCT, VIOLATION OF LAWS, RULES, OR REGULATIONS, OR BREACH OF THE AGREEMENT BY CUSTOMER, ANY USE OF THE PRODUCT(S), SERVICES, OR SPECIFIED WORK PRODUCTS AND/OR THE USE OF THE SAME BY ANY OTHER PERSON USING CUSTOMER’S AUTHORIZED USER INFORMATION.

INTELLECTUAL PROPERTY

 

DEFINITION. “Intellectual Property” means any confidential information as well as ideas, know-how, techniques, methods, processes, research, developments, improvements, software in whatever form, documents, apparatus, work products, content or expressions, having either patent, copyright, trade secret or any other proprietary right, whether statutory or common law, as associated therewith.

 

OWNERSHIP. Avid shall be and remain the owner of all Intellectual Property rights owned by Avid on or prior to the commencement of any work hereunder, all Intellectual Property rights owned by Avid independent of this Agreement, and all Intellectual Property rights arising from or in connection with the Products, Services, Specified Work Products, and Media Elements provided under the Agreement. Customer shall be and remain the owner of all Intellectual Property rights owned by Customer on or prior to the commencement of any work hereunder, and all Intellectual Property rights owned by Customer independent of the Agreement.

 

LICENSE TO CUSTOMER CONTENT. By using the Product and/or Services, you hereby grant access to any and all data, content, media, files, projects, session data, audiovisual works, musical compositions, digital audio files, images, text, metadata, and other materials that are uploaded to, processed by, stored in, transmitted through, or created using the Products or Services by or on your behalf (“Customer Content”) connected to Products or Services 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 Product and/or 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 Product and/or Services, you grant Avid (and its third-party service providers) a worldwide, royalty–free license to use, host, display, distribute, 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.

 

FEEDBACK. To the extent that Avid receives from Customer or any of its users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Products, Services, Specified Work Products, or any other products or services (“Feedback”), Avid may use, disclose and exploit such Feedback without restriction, including to improve the Products, Services, Specified Work Products and to develop, market, offer, sell and provide other products and services.

 

RESTRICTIONS. Customer represents and warrants that it shall not itself or permit or enable any third party to:

• use Products, Services, or Specified Work Products in any illegal or unlawful manner or for any illegal or unlawful purpose;
• perform any act which is intended to harm Avid or its Products, Services, or Specified Work Products;
• use the Products, Services, or Specified Work Products to defraud, defame, abuse, harass, stalk, threaten, or infringe on the right so privacy or other Intellectual Property rights of others;
• attempt to gain unauthorized access to any Products, Services, or Specified Work Products or its related systems or networks;
• modify, adapt, translate, make alterations, or make derivative works based upon the Products, Services, or Specified Work Products;
• reverse engineer, decompile or disassemble or otherwise attempt to discover the source code of any of the Products, Services, or Specified Work Products provided or otherwise made available by Avid;
• copy the Products, Services, or Specified Work Products or distribute copies of the Products, Services, or Specified Work Products to any third party;
• rent, loan, sub-license, lease, distribute or attempt to grant any rights to the Products, Services, or Specified Work Products to third parties; or
• use the Products, Services, or Specified Work Products to act as a service bureau or application service provider, or to permit access to the Products, Services, or Specified Work Products of any kind to any third party.

The Products, Services, and Specified Work Products are intended for use with content that you own, license, or obtain from the public domain. You shall not use Products, Services, and Specified Work Products: (a) to build a competitive marketplace, product or service or to otherwise copy the features, functionality or user interfaces of the Products, Services, and Specified Work Products; (b) in any manner that interferes with, damages, accesses or uses in any unauthorized manner the Hardware, Software, Services, Specified Work Products, networks or technologies of Avid, its service providers, or of any end user or any other person or entity; or (c) for any purpose that is not authorized by the Agreement.

CONFIDENTIALITY AND DATA

 

CONFIDENTIALITY. You acknowledge that the Products and Services contain proprietary and confidential property of Avid or Avid’s suppliers. During the term of the Agreement, Customer may receive or obtain access to Avid’s Confidential Information. As used herein, “Confidential Information” means all non-public, confidential, proprietary, or secret information disclosed by or on behalf of Avid, in any form, including without limitation: know-how, trade secrets, business plans, personnel information, financial information, product and pricing information, customer information, components, drawings, data, programs, specifications, techniques, technology, processes, algorithms, inventions, mask works, building plans, computer systems, system logic, software (including source code), and related documentation, correspondence, or other materials relating to Avid’s Products, Services, Specified Work Products, business, finances, or plans. Confidential Information includes information designated as confidential or proprietary (including by marking, labeling, or written notice) or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure. Confidential information includes Pre-Release Product(s). The Customer shall, upon written request by Avid, promptly return to Avid or destroy, per such request, all Confidential Information received by the Customer from Avid (and all reproductions thereof) to the extent not previously returned or destroyed. In addition, the Customer shall promptly destroy (i) any notes, reports or other documents prepared by the Customer that contain Avid’s Confidential Information; and (ii) any of Avid’s Confidential Information that is in electronic form or is otherwise incapable of being returned to Avid. Confidential Information may only be used by the Customer in connection with performance hereunder and may not be copied or reproduced without Avid's prior written consent. For the avoidance of doubt, it is hereby clarified that the Customer may reproduce a commercially reasonable number of copies of the Documentation solely as necessary to support and use the Software and/or Hardware purchased or licensed hereunder. The Customer agrees to protect Avid’s Confidential Information in the same manner that it protects its own proprietary and confidential information of like kind, but in no event will it exercise less than best efforts. Access to the Confidential Information shall be restricted to Customer employees, contractors and agents with a need to know and who are engaged in a use permitted hereby, provided that any such employees, contractors or agents are bound by a written agreement with the Customer to protect such Confidential Information no less protective than this Agreement. Customer’s nondisclosure obligation shall not apply to information which the Customer can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Customer; (iii) is rightfully obtained by the Customer from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Customer without use of or reference to such information. Notwithstanding the foregoing, Customer may disclose Confidential Information to the extent it is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance written notice to Avid). Customer acknowledges that any violation or threatened violation by the Customer of any of the terms set forth in this section could cause irreparable injury, that the remedies at law for any violation or threatened violation thereof would be inadequate, and that Avid will, in addition to and not in limitation of any rights or remedies available at law or in equity, be entitled to seek specific performance and other injunctive or equitable relief without the posting of bond or other security in addition to whatever other remedies it might have at law.

 

CONSENT TO USE OF DATA. Avid may collect and process information relating to your use of the Products and Services, including device, technical, usage, and interaction data, as further described in Avid’s Privacy Policy [https://www.avid.com/legal/privacy-policy-statement]. Such information may include personal information where applicable. Avid processes this information for purposes including providing, operating, maintaining, securing, and improving the Products and Services; delivering support; analyzing performance and usage; and developing new features and functionality. Where required by applicable law, Avid will obtain your consent for specific processing activities (such as certain analytics, cookies, or marketing), and you may withdraw such consent at any time. Otherwise, Avid processes such information in accordance with applicable legal bases, including performance of a contract, legitimate interests, and legal obligations. Avid may use aggregated or de-identified information for analytics, research, and product improvement purposes. Avid may share personal information with service providers, partners, and third parties as described in the Privacy Policy, including to support analytics, functionality, and integrations, and subject to appropriate contractual, technical, and organizational safeguards. Avid does not sell personal information for general data broker purposes. Certain Products or Services may include analytics or similar tools (including third-party analytics providers) to help Avid understand how Products and Services are used and to improve performance and functionality. You can learn more about how such third parties process data in their respective privacy policies. The Products and Services may include security features designed to detect unauthorized use, misuse, or copying, and may transmit relevant information to Avid for security and compliance purposes. The Products and Services may connect to the internet as necessary to provide functionality, updates, security features, and support. Your use of the Products and Services is subject to Avid’s Privacy Policy, as updated from time to time. Where required, Avid will provide notice of material changes and obtain consent as applicable. If you do not consent to these practices, do not use the Products or Services.

 

Data Privacy. For Customers based in the European Union, please note that the information you provide to Avid, its parent or its subsidiaries, its affiliates or its branches, may be transferred outside the European Economic Area, for purposes of processing by Avid Technology, Inc., a company located in Burlington, Massachusetts, USA, or its affiliates or subsidiaries, or its authorized partners, located worldwide, including in countries which do not provide a level of protection equivalent to that required in the European Union, in order to provide you with Products and Services. You are particularly advised that the U.S. uses a sectoral model of privacy protection based on a mix of legislation, governmental regulation and self-regulation. You are further advised that the Council of the European Union believes that this model does not provide an adequate level of protection as referred to in Article 25 of the European Union’s Data Directive 95/46/EC, OJ 1995 (L281) 31. Article 26 of this Directive allows for transfer of personal data from the European Union to a third country if the individual has unambiguously consented to the transfer of personal information, regardless of the level of protection applied by third countries. By accepting the Agreement, you and your staff agree to the transfer of such information and the processing of such information as provided herein and the terms under Avid’s DPA.

 

NO PUBLICITY. Nothing set forth herein shall be construed to grant the Customer the right, without prior written consent of Avid in each instance, to (a) use in advertising, press releases, publicity, articles, websites, marketing, promotional or sales collateral materials or otherwise use the name of Avid or any of its affiliates, or any partner or employee of Avid or its affiliates, nor any trade name, trademark, service mark, logo, trade device or simulation thereof owned by Avid or its affiliates; or (b) represent, directly or indirectly, that any product or any service provided by the Customer has been approved or endorsed by Avid or its affiliates. Nothing herein shall be construed to alter or rescind any existing or hereafter granted permission for such uses granted by the Customer or its affiliates to Avid.

 

AUDIT. During the term of the Agreement and for two (2) years after termination, Avid may, on reasonable prior notice and no more than once per year, audit your books, records, and computing devices strictly to determine your compliance with the agreement and verify your payment of applicable license fees, if any. Audits shall be conducted during normal business hours and in a manner that minimizes disruption. In the event that any such audit reveals an underpayment by you of more than five percent (5%) of the license fees due to Avid in the period being audited, then, in addition to any other rights and remedies Avid may have, you agree to reimburse Avid for the costs of the audit and promptly pay any underpayment. The foregoing audit provision does not apply to you if you are a Customer using the Products for personal use. 

WARRANTY

 

IMPORTANT. BY USING THE PRODUCTS AND/OR SERVICES, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THE WARRANTY (“WARRANTY”) AS SET OUT BELOW.

 

DO NOT USE PRODUCTS OR SERVICES UNTIL YOU HAVE READ THE TERMS OF THE WARRANTY. IF YOU DO NOT AGREE TO THE TERMS OF THE WARRANTY, DO NOT USE THE PRODUCT OR SERVICE, AND IN THE CASE OF PRODUCTS, RETURN IT WITHIN THE PERIOD STATED IN THE RETURN POLICY TO AVID OR THE AUTHORIZED DISTRIBUTOR WHERE YOU PURCHASED IT FOR A REFUND.

 

IF YOU HAVE LICENSED AVID SOFTWARE, IT MAY INCLUDE LOCKED SOFTWARE THAT YOU MAY CHOOSE TO LICENSE AND ACTIVATE IN THE FUTURE. IF YOU CHOOSE TO DO SO, THESE TERMS WILL APPLY, UNLESS OTHER TERMS ARE PRESENTED TO YOU WHEN YOU LICENSE AND ACTIVATE THE SOFTWARE.

 

HOW CONSUMER LAW RELATES TO THIS WARRANTY. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE (OR BY COUNTRY OR PROVINCE). OTHER THAN AS PERMITTED BY LAW, AVID DOES NOT EXCLUDE, LIMIT OR SUSPEND OTHER RIGHTS YOU MAY HAVE, INCLUDING THOSE THAT MAY ARISE FROM THE NONCONFORMITY OF A SALES CONTRACT. FOR A FULL UNDERSTANDING OF YOUR RIGHTS YOU SHOULD CONSULT THE LAWS OF YOUR COUNTRY, PROVINCE, OR STATE.

 

WARRANTY LIMITATIONS SUBJECT TO CONSUMER LAW. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS WARRANTY AND THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED. AVID DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES AND CONDITIONS, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AGAINST HIDDEN OR LATENT DEFECTS OR VIRUSES, TO THE EXTENT PERMITTED BY LAW. IN SO FAR AS SUCH WARRANTIES CANNOT BE DISCLAIMED, AVID LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THIS EXPRESS WARRANTY AND, AT AVID'S OPTION, THE REPAIR OF THE PRODUCT(S) OR REPLACEMENT SERVICES DESCRIBED BELOW. SOME STATES (COUNTRIES AND PROVINCES) DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY (OR CONDITION) MAY LAST, THUS THE LIMITATION DESCRIBED ABOVE MAY NOT APPLY TO YOU.

 

WARRANTY RECIPIENT. The limited warranty described in this document applies only to genuine Product when sold by Avid or an Avid system integrator, distributor, or dealer. If the first user of the Product transfers it, per Avid's applicable transfer procedures, the remainder of the warranty term will apply to the recipient.

 

TERM OF WARRANTY.

 

1. Software. Avid warrants that the Software, as delivered by Avid, will conform in all material respects to the applicable specifications set forth in the Documentation. The limited warranty covers the Software for ninety (90) days after it has been acquired by the first user. The laws of your country, province, or state may require a warranty term longer than ninety (90) days, in which case Avid will provide the minimum warranty term required by applicable law. If you receive supplements, updates, or replacement Software during the term of the limited warranty, they will be covered for the remainder of the term. If Customer notifies Avid that Software is nonconforming within the warranty term, Avid will repair or replace such nonconforming Software (or a component thereof) at no charge. If Avid cannot repair or replace it, Avid will refund the amount shown on your receipt for the Software. You must deactivate and uninstall and return the Software and other associated materials to Avid with valid proof of purchase to obtain a refund. If you purchased the Product as part of a system bundled with Software and other Hardware Products, you must return the entire system inclusive of all included Software and Hardware to obtain a refund. YOU AGREE THAT THE FOREGOING REMEDY IS YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING WARRANTY.

 

2. Hardware. Avid warrants that the Hardware, as delivered by Avid, will conform in all material respects to the applicable specifications set the Documentation in all material respects. The limited warranty covers Hardware (excluding accessories, which includes cables and computer keyboards) for one (1) year after it has been acquired by the first user or accessories for ninety (90) days after purchase. The laws of your country, province, or state may require a warranty term longer than one (1) year, in which case Avid will provide the minimum warranty term required by applicable law. Avid will repair or replace nonconforming Hardware (or a component thereof) that is returned to Avid within the warranty term at no charge. If Avid cannot repair or replace it, Avid will refund the amount shown on your receipt for the Hardware. You must deactivate and uninstall and return the Hardware and other associated materials to Avid with valid proof of purchase to obtain a refund. If you purchased the Hardware as part of a system bundled with Software and other Hardware Products, you must return the entire system inclusive of all included Software and Hardware to obtain a refund. YOU AGREE THAT THE FOREGOING REMEDY IS YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING WARRANTY. Consumable/expendable items such as batteries are not covered by this warranty. This limited warranty does not cover cosmetic defects. Hardware replacement parts may have minor cosmetic defects such as scratches or dents, as long as the defects do not interfere with the functional performance of the part or assembly.

 

3. Replacements. Avid warrants Hardware replacement parts will perform to the same material standards as the original parts for the longer of the remainder of the original warranty period or ninety (90) days from date of shipment from Avid. Avid Hardware replacement parts are refurbished to meet all functional specifications as required by Avid manufacturing quality documentation (ISO 9001). For Customers who have invested in an Avid Advantage service contract, Avid will provide replacement faders as follows: (i) in case of failure within the first three (3) years, no Hardware charge to apply; (ii) in case of failure after three (3) years, replacement faders will be chargeable but a 30% discount will apply; and (iii) in case of multiple faders reported defective, Avid may request additional evidence of the failures before processing an RMA.

 

4. SaaS Platform. Avid warrants that during the applicable Subscription Term the SaaS Platform will conform in all material respects to the applicable specifications set forth in the Documentation when used in accordance with this Agreement. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE SAAS PLATFORM IS PROVIDED “AS IS,” AND AVID DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Avid does not warrant that the SaaS Platform will be uninterrupted or error-free. The foregoing warranty does not apply to: (i) issues caused by Customer’s misuse or unauthorized modifications, (ii) third-party products or services not provided by Avid, or (iii) downtime or performance issues resulting from scheduled or emergency maintenance or events outside Avid’s reasonable control.

 

Customer’s sole and exclusive remedy for any breach of this warranty will be for Avid to use commercially reasonable efforts to correct the nonconformity.

 

5. Professional Services. Avid warrants that Professional Services and, if applicable, that Specified Work Products, as and when delivered by Avid, will conform in all material respects to the description of services and/or specifications set forth in the SOW. Avid shall re-perform, or offer partial credits against, any Professional Services not in compliance with this warranty, provided that such material non-compliance is brought to its attention within a reasonable time (not to exceed thirty (30) business days), after the Professional Services are performed. YOU AGREE THAT THE FOREGOING REMEDY IS YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH OF THE FOREGOING WARRANTY. This warranty gives you specific legal rights but you may also have other rights which vary from state to state and country to country.

 

NOT COVERED BY THIS WARRANTY. This limited warranty covers Avid branded Products or Services, which are configured with Avid qualified and Avid certified third party components, as sold by Avid or an authorized Avid reseller, system integrator, distributor, or dealer. Should you choose to use non-qualified or non-certified third-party components with the Avid branded Products or Services, then this limited warranty shall not apply. Non-Avid branded products that ship with Avid Product, as part of a bundle or solution, are not covered by this limited warranty, except when explicitly stated in documentation that ships with the bundle or solution. Manufacturers, suppliers, or publishers, other than Avid, may provide their own warranties to you – please contact them for further information. Software distributed by Avid with or without the Avid brand (including but not limited to system software) is not covered by this limited warranty. Please refer to the licensing agreement accompanying the Software for details of your rights with respect to its use.

 

Avid, its suppliers, and service providers do not warrant that the operation of the Products or Services will be uninterrupted, fault tolerant, free from viruses, or error-free. Avid is not responsible for damage arising from failure to follow instructions relating to the use of Products, Specified Work Products, or Services. This warranty does not cover problems caused by your acts (or failures to act), the acts of others, or events beyond Avid's reasonable control. This warranty also does not cover Products, Specified Work Products, or Services that have been modified by anyone other than Avid or an authorized Avid reseller or service provider. This limited warranty does not cover defects, damage, or service issues caused by Customer’s failure to install updates, critical patches, or fixes that Avid reasonably requires Customer to apply; such failure shall void Avid’s warranty obligations with respect to the affected functionality. This warranty does not apply to expendable components and is void if the product serial numbers have been removed from the product. Avid has no obligation under this warranty to repair or replace Products, Specified Work Products, or Services damaged or noncompliant as a result of (i) normal wear and tear (e.g. faders); (ii) improper or unauthorized use or repair; (iii) Customer’s fault or negligence; (iv) natural or manmade disaster; or (v) causes external to the Products, Specified Work Products, or Services, including, but not limited to, exposure to moisture, extreme temperatures, power outages, excessive dust or foreign particles, or other Customer site conditions; (vi) Products that are lost or damaged in transit; and (vii) the contraction of a virus or malware.

 

WARRANTY PROCEDURES AND CONTACTS. For information regarding your warranty and/or to process a warranty claim, please visit www.avid.com where you can find contact information for your local Avid office, sales representative or authorized reseller and the Avid support team. You may be required to provide proof-of­ purchase to validate your claim. The Customer is required to provide true, accurate and complete information relating to the warranty claim including product serial number.

 

Hardware warranty is return-to-factory, and Customer is responsible for properly packing and labelling any warranty product returns for shipment to Avid. Customer is responsible for any damage or loss incurred due to improper packaging or labelling. Within the EU, Avid is responsible for the return shipping and will facilitate a returns shipment using its freight agent. In certain jurisdictions, such as the United States, Customer is required to pay shipping/handling one way for warranty product returns and applicable custom duties, V.A.T. and other associated taxes and charges for international service. Avid accepts no liability for items that were not authorized for return such as option cards, power supplies, media drives, product accessories, etc.

 

Product registration may be required to process a warranty claim or to activate the Software or other complimentary support packages included with some Products. Pre-registering your Product will help expedite any warranty claims. Products can be registered at www.avid.com.

 

Customer is responsible for backing up and removing their media and any other sensitive data prior to returning any Product to Avid. Product repair or replacement is subject to lead time, which will be communicated during the warranty claim process.

 

Avid takes its employees' health and safety very seriously. Prior to returning your Product for warranty service, please clean the Product and ensure that all surfaces are free of foreign debris, spillages and any other potential contaminants. Any Product received by Avid that is deemed to be unsanitary or unsafe will be rejected and returned to the customer, and the RMA process will need to be restarted.

 

Avid offers many support options to increase the investment protection provided by this limited warranty. Please visit us at www.avid.com.

 

DISCLAIMER. THE LIMITED WARRANTY IS YOUR ONLY WARRANTY FROM AVID. TO THE EXTENT PERMITTED BY LAW, AVID AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, GUARANTEES, TERMS OR CONDITIONS, EXPRESS, IMPLIED, ARISING BY COURSE OF DEALING, OR OTHERWISE, INCLUDING WARRANTIES THAT THE HARDWARE IS FAULT-TOLERANT OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE OR UNINTERRUPTED PERFORMANCE, OR THAT THE THAT THE SOFTWARE IS ERROR-FREE, VIRUS-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, TITLE, AND NONINFRINGEMENT. IF YOUR LOCAL LAWS GIVE YOU ANY IMPLIED WARRANTIES, GUARANTEES OR CONDITIONS, DESPITE THIS EXCLUSION, YOUR SOLE AND EXCLUSIVE REMEDIES ARE DESCRIBED IN THIS WARRANTY SECTION, TO THE EXTENT PERMITTED BY YOUR LOCAL LAWS. 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 DISCLAIMS ANY REPRESENTATION THAT IT WILL BE ABLE TO REPAIR ANY AVID PRODUCT UNDER THIS WARRANTY OR REPLACE THE PRODUCT WITHOUT RISK TO OR LOSS OF INFORMATION STORED IN THE PRODUCT. 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.

 

AVID GIVES NO WARRANTY FOR THIRD PARTY SOFTWARE OR SOFTWARE PROVIDED BY AVID FREE OF CHARGE, INCLUDING PRE-RELEASE PRODUCT, SOFTWARE DESIGNATED AS “NOT FOR RESALE (NFR),” “LIMITED RELEASE,” “PRE-RELEASE,” “LOAN,” “BETA,” OR “TEST” (THE “EXCLUDED PRODUCT(S)”). THE EXCLUDED PRODUCT(S) ARE PROVIDED “AS IS” AND WITH ALL FAULTS, AND AVID DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THAT THE EXCLUDED PRODUCT(S)ARE VIRUS FREE OR WILL OPERATE WITHOUT INTERRUPTION OR ERROR. THE EXCLUDED PRODUCT(S) MAY NOT BE SUITABLE FOR USE IN A PRODUCTION ENVIRONMENT. ANY USE OF THE EXCLUDED PRODUCT(S) IS AT CUSTOMER’S OWN RISK.

LIMITATION ON AND EXCLUSION OF DAMAGES.

 

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL AVID OR ANY OF ITS RESELLERS, SUPPLIERS, ONLINE SERVICE PROVIDERS, DISTRIBUTORS OR LICENSORS BE LIABLE OR RESPONSIBLE FOR ANY DIRECT, SPECIAL, GENERAL, ECONOMIC, PUNITIVE, INCIDENTAL, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES OF OR RELATING TO THE AGREEMENT, THE PRODUCTS, SERVICES, OR SPECIFIED WORK PRODUCTS, WHETHER BASED UPON ANY BREACH OF WARRANTY OR CONDITION, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR UNDER ANY OTHER LEGAL THEORY, INCLUDING BUT NOT LIMITED TO LOSS OF USE (INCLUDING WITHOUT LIMITATION “DOWNTIME”); LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS (INCLUDING LOSS OF ACTUAL OR ANTICIPATED PROFITS ON CONTRACTS); LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS OF BUSINESS; BUSINESS INTERRUPTION; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; LOSS OF REPUTATION; LOSS OF, DAMAGE TO, COMPROMISE OR CORRUPTION OF DATA; UNAUTHORIZED ACCESS OF DATA; OR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED, INCLUDING, BUT NOT LIMITED TO, THE REPLACEMENT OF GOODS, SERVICES, EQUIPMENT AND/OR PROPERTY, ANY COSTS OF RECOVERING, PROGRAMMING, OR REPRODUCING ANY PROGRAM OR DATA STORED IN OR USED WITH THE PRODUCT OR ANY FAILURE TO MAINTAIN THE CONFIDENTIALITY OF INFORMATION STORED ON THE PRODUCT, OR ARISING FROM THE PROVISION OF ANY SERVICES OR ANY FAILURE OR DELAY IN PROVIDING SUCH SERVICES HEREUNDER, EVEN IF AVID OR ANY OF ITS RESELLERS, DISTRIBUTORS OR LICENSORS HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AVID’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF THE AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR OTHERWISE, EVEN IF AVID HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES, SHALL NEVER EXCEED THE ACTUAL PAYMENT MADE BY YOU UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE CLAIM (OR FIRST CLAIM IN A SERIES OF RELATED CLAIMS).

 

SOME STATES (COUNTRIES AND PROVINCES) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

 

This limitation applies to Product(s), Services, Specified Work Products, and any related components or materials, including without limitation any services provided in connection with the Product, any Software provided with or installed on hardware, any third-party content (including programs and information), and all claims or causes of action arising in contract, warranty, guarantee, condition, strict liability, negligence, or other tort, to the maximum extent permitted by applicable law. This limitation applies regardless of whether repair, replacement, reperformance, or a refund for the Product, Service, or Specified Work Products does not fully compensate you for any losses; or whether Avid knew or should have known about the possibility of the damage.

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 THE 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; (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; (C) 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, AND (D) YOU WILL BRING ANY LEGAL PROCEEDINGS ONLY IN CONSONANCE WITH THE DISPUTE RESOLUTION CLAUSE IN THE AGREEMENT.

MISCELLANEOUS

 

REGULATORY APPROVAL. You are responsible for obtaining any regulatory approvals and for compliance with all applicable federal, state and local laws and regulations relating to Products, Services and the Specified Work Products, including but not limited to securities, antitrust, labor, local zoning, environmental and consumer protection laws.

 

COMPLIANCE WITH LAWS; EXPORT CONTROLS AND SANCTIONS. Customer shall comply with all applicable laws, regulations and governmental orders in performing its obligations under the Agreement, including, without limitation, laws relating to export/import controls, economic sanctions, customs, anti-corruption, anti-money laundering and data protection and privacy. Products, Services, technical data, and Specified Work Products provided under the Agreement are subject to export, re-export, import and sanction controls of the United States (including the Export Administration Regulations and related rules), the European Union (including the EU Dual-Use Regulation) and other applicable jurisdictions, which may restrict destinations, end users, end uses and transfers (including “deemed exports” and “deemed re-exports"). Customers shall not, and shall ensure its end users do not, export, re-export, transfer or use any Product, Service, Specified Work Products, or related data in violation of Export Laws or for prohibited end uses (including, without limitation, nuclear, chemical or biological weapons proliferation and missile technology). Customer represents that it and its end users are not listed on any applicable sanctions, denied-party, debarment or restricted-export lists, and shall obtain and maintain, at its expense, all permits, licenses and authorizations required for purchase, shipment, importation, installation, operation or re-export. Customer shall provide copies of such permits or other evidence of availability upon Avid’s request. Avid may require end-user, end-use and destination information, screen parties against restricted-party lists, and suspend, withhold, cancel or refuse performance or delivery where required by export laws or if Customer fails to provide required information or authorizations. Customer shall maintain records sufficient to demonstrate compliance with this clause for the period required by applicable law or, if longer, for a commercially reasonable period, and shall, on reasonable notice, permit Avid to inspect records directly relevant to compliance. For the avoidance of doubt, Hardware is subject to applicable export-control and sanctions laws by reason of their nature, and Customer acknowledges that additional documentation, licensing, or record-keeping requirements may apply. This clause survives termination or expiry of the Agreement.

 

NOTICE. You consent to receive all notices and official communications relating to this Agreement at the email addresses provided in the Quote or SOW or otherwise provided by you. All legal notices under this Agreement to Avid shall be in writing and deemed effective upon receipt, and sent to the address set out below, with a simultaneous copy sent by email.

 

Avid Technology, Inc.

Attn: Legal Department

75 Blue Sky Drive

Burlington, MA 01803

Email: [email protected]

DISPUTE RESOLUTION AND GOVERNING LAW.

 

(a) Negotiation. In the event of any dispute, controversy, or claim arising out of or relating to the Agreement, including any question regarding its existence, validity, interpretation, performance, breach, or termination (a “Dispute”), the party asserting the Dispute shall give the other party written notice thereof describing in reasonable detail the nature of the Dispute. Following such notice, the parties shall confer and attempt in good faith to resolve the Dispute through negotiation between representatives of each party with authority to settle the matter. The parties shall use commercially reasonable efforts to resolve the Dispute within thirty (30) days after the date of such written notice (the “Negotiation Period”).

(b) Agreement to Arbitrate. If the Dispute has not been resolved by the expiration of the Negotiation Period, the Dispute shall be finally and exclusively resolved by binding arbitration. The arbitration shall be conducted by a sole arbitrator appointed by the mutual consent of the parties. The parties expressly waive any right to have such Dispute decided by a court or jury, except as expressly provided in this Clause.

(c) Seat, Law, and Rules. The seat (legal place) of arbitration shall be Boston, Massachusetts, U.S.A. The arbitration shall be conducted in English. The procedural law of the arbitration, and any court proceedings in support of or in connection with the arbitration (including enforcement of any award), shall be the law of the United States of America (including, without limitation, the Federal Arbitration Act), together with, to the extent not inconsistent therewith, the laws of the Commonwealth of Massachusetts, in each case without giving effect to any choice or conflict of law principles that would result in the application of the laws of any other jurisdiction. The arbitration shall be conducted in accordance with the American Arbitration Association Commercial Arbitration Rules then in effect, except as modified by this Clause.

(d) Powers of the Arbitrator; Award. The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction in Boston, Massachusetts could have awarded under the substantive law applicable to the Dispute, including specific performance and injunctive relief, but shall have no authority to award punitive or exemplary damages unless such damages would be available under the applicable law before a court of competent jurisdiction. Any award of the arbitrator shall be in writing, shall state the reasons upon which the award is based, and shall be final and binding on the parties. Judgment upon the award may be entered, and enforcement may be sought, in any court of competent jurisdiction.

(e) Confidentiality and Costs. The existence of the arbitration, the proceedings, all filings and submissions, and the arbitral award shall be kept confidential by the parties and the arbitrator, except to the extent disclosure is required by law, regulation, or court order, or is necessary for purposes of enforcement of the award. The arbitrator shall have the power to allocate the costs of the arbitration (including the arbitrator’s fees and the reasonable legal and other professional fees of the prevailing party) between the parties in such manner as the arbitrator deems appropriate, taking into account the relative success of the parties on their respective claims and defenses.

 

LEGAL EFFECT. The Agreement describes certain legal rights. You may have other rights under the laws of your state or country. You may also have rights with respect to the reseller from whom you acquired the Product or Services. The Agreement does not change your rights under the laws of your state or country if the laws of your state or country do not permit it to do so.

 

SURVIVAL. All definitions, any confidentiality obligations, indemnification obligations, warranty disclaimers, limitations of liability, obligations to pay amounts that are due and owing but unpaid as of the date of termination, and any other provisions which by their nature should survive, shall survive termination of the Agreement.

 

FORCE MAJEURE. Neither party shall be considered in default in performance of its obligations or liable if performance of such obligations (excluding payment obligations) is prevented or delayed due to causes beyond their control, including, but not limited to, acts of God or government, natural disasters; war; riots; terrorism; rebellions; acts of civil disorder; strikes, lockouts, or other labor disputes; work stoppages; prolonged shortages of energy, labor, or materials; failure or delay of transportation; embargoes; fires; earthquakes; floods; epidemics or pandemics; government regulations or orders; failures or disruptions of internet, telecommunications systems or equipment, internet backbone outages, or denial-of-service attacks; failures of third-party software, services, suppliers, or other dependencies; or any other similar causes beyond a party’s reasonable control. The party exercising this clause must provide notice to the other party as soon as practicably possible after becoming aware of the Force Majeure event.

 

REMEDIES. Except as expressly provided otherwise herein, the remedies contained herein are cumulative and in addition to any other remedies at law or equity.

 

PERFORMANCE BY AFFILIATES, AUTHORIZED PARTIES, SUB-PROCESSORS, AND SUB-SUPPLIERS. Avid conducts its business operations through entities it owns or controls, as well as through authorized third parties. It is understood and agreed by the parties that Services to be performed under the Agreement may be conducted by and through such controlled entities and authorized third parties, rather than by Avid directly. A list of sub-suppliers and/or sub-processors, which forms part of Avid’s Confidential Information, may be made available to the Customer upon request.

 

ASSIGNMENT. Customer shall not assign, nor in any manner transfer its rights or obligations or any part thereof, without the prior written consent of Avid.

 

EQUITABLE RELIEF. Each party acknowledges that the provisions of the Agreement are necessary and reasonable for the protection of the business and goodwill of Avid. Customer agrees that any breach of the Agreement may cause Avid substantial and irreparable injury and, therefore, in the event of any breach, in addition to other available remedies, Avid shall have the right to seek specific performance and other injunctive or equitable relief without posting of bond or other security.

 

RELATIONSHIP OF THE PARTIES. Each party contracts as an independent contractor, and not as an agent or partner of the other for any purpose whatsoever, and nothing in the Agreement creates or shall be deemed to create a partnership, joint venture, agency, employment, fiduciary or other similar relationship between you and Avid or authorizes 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. Except as may be specified in writing, neither party has the authority to bind the other party or make any commitments of any kind for or on behalf of the other party.

 

NON-SOLICIT. Customer agrees that it shall not, either alone or in association with others until twelve (12) months after expiration or termination of the Agreement, (i) solicit, directly or indirectly, any employee of Avid to leave the employ of Avid, or (ii) solicit for employment, hire, or engage as an independent contractor any person who was employed by Avid at any time during the term of the Agreement. The foregoing restriction shall not limit Customer’s rights to recruit employees or contractors generally (for example, by placing ads or engaging a placement consultant).

 

SEVERABILITY. If any provision of the Agreement is legally invalid, the Agreement shall endure except for the invalid provision unless held otherwise by a competent court. However, if a court determines that any provision is invalid, the court may limit the provision, delete specific words or phrases, or replace the invalid provision with a provision that is valid and that comes closest to expressing the intent of the invalid provision.

 

COUNTERPARTS. The Agreement may be executed in one or more counterparts, including by facsimile or electronic transmission, each of which shall be deemed an original for all purposes.

 

AUTHORIZATION. Each party represents and warrants that the execution, delivery, and performance of the Agreement has been duly authorized by the persons required to give such authorization, and the undersigned has the complete and unrestricted power and authority to execute the Agreement on behalf of such party. Each party has taken all corporate and legal action necessary to enter into, execute and deliver the Agreement, to perform all of its obligations hereunder, and to perform to the fullest extent all transactions contemplated herein.

 

ENTIRE AGREEMENT. The Agreement and any additional terms provided with supplements, updates, online services and support services that you use or purchase, form the entire agreement for the Product(s), Services, and Specified Work Products. All prior agreements and understandings, including purchase orders, oral communications, prior writings or other communications, between the parties related to the Product, Services, or Specified Work Products shall be null and void unless the same shall be agreed to in writing by your authorized representative(s) and Avid.

 

MODIFICATION AND WAIVER. No provision of the Agreement may be waived or modified except by a written instrument signed by the party against whom enforcement is sought, except as provided below.

 

(a) Transactions directly with Avid (Part A).

Unless otherwise agreed to in writing by Avid, Avid may update these UTC from time to time by providing reasonable advance notice, including by email, in-product notification, or posting an updated version at www.avid.com. Unless otherwise stated, updates will become effective at the start of the Customer’s next renewal term or, if the Customer continues to use the Services after the effective date, upon such continued use. If the Customer does not agree to the update, the Customer’s sole remedy is to stop using the Products, Services, and/or Specified Work Products and not renew the subscription.

 

(b) Transactions through Resellers, Marketplaces, or Third-Party Sellers (Part B – License Terms).

Where the Products and/or Services are obtained from an authorized reseller, distributor, marketplace, or other third party and Avid is not the commercial seller of record, Part B constitutes the license terms governing use of the Software or Services in lieu of any separate end user license agreement. Avid may update Part B from time to time by posting an updated version at www.avid.com and providing notice within the Product and/or Service where reasonably practicable. Such updates will apply prospectively to continued use of the Product and/or Service after the effective date of the update.

 

CONCLUDING PROVISIONS. The Agreement: (a) shall be binding upon the respective successors, trustees and permitted assigns of you and Avid; (b) is the product of negotiation and shall not be deemed to have been drafted by you or Avid; (c) contains article and section headings which are for convenience of reference only; and (d) 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.  

REGULATORY AND NOTICES

 

NOTICE TO U.S. GOVERNMENT END USERS. The software is a “commercial item,” as that term is defined in 48 C.F.R. 2.101 (Oct. 2005), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 2005). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 2005), all U.S. Government End Users acquire the software with only those rights set forth herein. All software provided to the U.S. Government pursuant to solicitations issued prior to December 1, 1995 is provided with "Restricted Rights" as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987) or DFAR, 48 CFR 252.227-7013 (OCT 1988), as applicable. This provision does not apply to you if you are not affiliated with the government of the United States of America

 

MPEG-2. MPEG-2 technology may be included with the software. MPEG LA, L.L.C. requires this notice:

ANY USE OF THIS PRODUCT OTHER THAN CONSUMER PERSONAL USE IN ANY MANNER THAT COMPLIES WITH THE MPEG-2 STANDARD FOR ENCODING VIDEO INFORMATION FOR PACKAGED MEDIA IS EXPRESSLY PROHIBITED WITHOUT A LICENSE UNDER APPLICABLE PATENTS IN THE MPEG-2 PATENT PORTFOLIO, WHICH LICENSE IS AVAILABLE FROM MPEG LA, L.L.C., 250 STEELE STREET, SUITE 300, DENVER, COLORADO 80206.

 

H.264/AVC. H.264/AVC technology may be included with the software. MPEG LA, L.L.C. requires this notice:

THIS PRODUCT IS LICENSED UNDER THE AVC PATENT PORTFOLIO LICENSE FOR THE PERSONAL USE OF A CONSUMER OR OTHER USES IN WHICH IT DOES NOT RECEIVE REMUNERATION TO (i) ENCODE VIDEO IN COMPLIANCE WITH THE AVC STANDARD (“AVC VIDEO”) AND/OR (ii) DECODE AVC VIDEO THAT WAS ENCODED BY A CONSUMER ENGAGED IN A PERSONAL ACTIVITY AND/OR WAS OBTAINED FROM A VIDEO AVID LICENSED TO PROVIDE AVC VIDEO. NO LICENSE IS GRANTED OR SHALL BE IMPLIED FOR ANY OTHER USE. ADDITIONAL INFORMATION MAY BE OBTAINED FROM MPEG LA, L.L.C. SEE HTTP://WWW.MPEGLA.COM.

 

Microsoft Windows for Embedded Systems. Microsoft Windows for Embedded Systems may be included with the software. If so, Microsoft requires that you not access or use desktop functions of the operating system (such as email, word processing, spreadsheets, database, network/Internet browsing, scheduling, and personal finance) other than through, in support of and operating as a part of, the Avid software.

 

IntervalZero. Software of IntervalZero, Inc. may be included with the software. IntervalZero, Inc. requires this notice:

This system contains software from IntervalZero, Inc. (“IntervalZero”) that serves as an extension to the Windows operating system and that allows this system to have a deterministic operating system.

 

You agree that you will use IntervalZero Software for your own internal business use only. You agree not to assign, copy, transfer or transmit the IntervalZero Software to any third party. YOU AGREE NOT TO USE OR EXPLOIT INTERVALZERO SOFTWARE, EXCEPT AS EXPRESSLY PERMITTED HEREIN.

 

You agree that your non-exclusive license to use the IntervalZero Software will terminate if you violate these restrictions. If your license terminates, you agree to cease any and all use of the IntervalZero Software. IntervalZero reserves all rights in the IntervalZero Software, including all ownership rights. You agree that IntervalZero may enforce its rights under this Agreement against you directly in its own name.

 

The IntervalZero Software is licensed to you "AS IS". No warranty is made that the IntervalZero Software is error-free or that the functioning of your application will be uninterrupted. INTERVALZERO AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILIIY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. IntervalZero and its suppliers do not warrant the results that will be obtained by your use of the IntervalZero Software. IN NO CASE WILL INTERVALZERO OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES OR FOR ANY LOST PROFITS OR LOST REVENUES. IN NO CASE WILL INTERVALZERO OR ITS SUPPLIERS BE LIABLE IN EXCESS OF THE AMOUNT OF MONEY YOU PAID FOR THIS APPLICATION.