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Master Services Agreement - United States

PLEASE READ CAREFULLY. THIS AGREEMENT GOVERNS CUSTOMER ACQUISITION AND ALL USE OF AVID SERVICES. BY ACCEPTING THIS AGREEMENT, BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR, FOR FREE SERVICES (PROMOTIONAL OR OTHERWISE), BY USING SUCH SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL HEREAFTER REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU ARE HEREBY NOT PERMITTED AND MAY NOT USE AVID SERVICES OR PRODUCTS IN ANY MANNER.

Warning: You may not access the Services if you are a direct competitor of Avid Ratings, except with prior written consent. In addition, you may not access the 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 (this “Agreement”) is made and entered into as of the date of access or use (the “Effective Date”), by any customer, client, entity, or other interested party (hereafter “Customer”), of any Avid product, service, program, software, plan, application, tool, or other medium, item, article, or property, known or reasonably known to belong to Avid Ratings, Inc. (hereafter “Avid” and/or “Avid Ratings”). All capitalized terms used but not defined in this Agreement have the meanings attributed to them in Section 11.

1. Avid Services.

1.1 Avid Services License. Subject to the terms of this Agreement, 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, if permitted access to Avid Services by Customer, are subject to approval by Avid upon request, and Avid maintains the express right to deny access for any reason. Customer shall further ensure that Customer Affiliates comply with all relevant terms of this Agreement. 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 as long as such service providers and agencies use the Avid Services solely for Customer’s internal business purposes.

1.2 Appropriate Use of the Avid Services.

a.  Generally.  When using the Avid Services, Customer shall comply with all 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, or reverse engineer 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 not access or use the Avid Services, or monitor its availability, performance, or functionality.

b.  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.

a.  Uptime Commitment.  Avid offers a performance commitment that the key features of the Avid Services will be available for access and use by Customer at least 99% of the time per calendar quarter, excluding any period of Permitted Unavailability (the “Uptime Commitment”).  Absent unusual circumstances, Avid shall 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.

b. 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. The amount of the credit will be the greater of (i) 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:

Formula

c. Procedure. When a period of unavailability is detected by Customer, Customer shall 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 the time such unavailability was reported to Avid by Customer or the time such unavailability was detected by Avid’s monitoring tools.

d. 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) constitute Customer’s sole and exclusive remedy and Avid’s sole and exclusive liability for failure to achieve the Uptime Commitment.

e. Monitoring. Avid shall actively monitor the Avid Services for unavailability and proper operation 24 hours per day, 7 days per week, every day of the year.  Avid does not guarantee that remote monitoring will detect all problems or interruptions at the time they occur.

1.4 Ownership.

a. 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, Avid’s software and systems, Avid’s web apps, and the data, information, and other social media content Avid provides; these are Avid’s retained rights.  In the event that Customer makes improvements or other modifications to these Avid retained rights when using the Avid Services, Customer hereby grants to Avid a nonexclusive, royalty-free, fully paid-up, irrevocable, perpetual, worldwide license (with the right to assign and sublicense) to use, display, copy, distribute, modify, make derivative works of, sell, and import such modifications and improvements.  Nothing in the preceding sentence is to be construed as granting Avid any rights to Customer’s name, trade name, trade dress, logos, and the like.  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.

b. Work Product or Deliverables. Notwithstanding anything to the contrary in any other signed document between the parties, Avid shall retain all rights to any and all work product or deliverables provided by 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. 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. Avid grants to Customer a nonexclusive right 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.

c. Proprietary Information. Customer acknowledges that the information and analysis provided by Avid Ratings to Customer in the course of performing the Services includes proprietary information of Avid Ratings, including but not limited to, 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. Subject to all other restrictions and obligations contained in this Agreement, Customer may use the Service materials, including any Proprietary Information contained therein, for any and all internal purposes. Customer agrees it shall not disclose to any third parties, any of the Proprietary Information contained in these materials or otherwise disclosed by Avid Ratings to Customer, and shall take reasonable steps to maintain the confidentiality of all Proprietary Information included in such materials or otherwise disclosed by Avid Ratings to Customer. Customer further agrees it will not publish or publicly distribute any of the materials or deliverables, in whole or in part. Except for any Proprietary Information, Customer may republish excerpts from the materials, or refer to any of the information and analysis therein, for promotional or public relations purposes, provided however that Customer has received 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 Avid Ratings by applicable trade secrets laws. To the extent there is any conflict between this provision and any applicable trade secrets laws, the applicable trade secrets laws shall govern.

1.5 Customer Data.  Customer grants Avid the right to use, display, copy, distribute, and make derivative works of any and all data provided to Avid by or on behalf of Customer (including any text, graphic, audio, video, or other content) in relation to the Avid Services, pursuant to this Agreement, including information of Customer’s customers (the “Customer Data”).  Avid may use Customer Data for any purpose, including, but not limited to, enabling Avid to offer and perform the Avid Services, fulfill its obligations under this Agreement, comply with any applicable laws, and for Avid’s own sale or transfer of the Customer Data, in original, modified, or aggregated form, and whether combined or not combined with other data from other sources. Customer represents and warrants that (a) it has obtained all necessary authority, rights, consents, and permissions to make available Customer Data to Avid Services in accordance with the Agreement and to grant all rights under the Agreement to Avid with respect to the Customer Data, and (b) Customer’s use, copying, displaying, and distribution of the Customer Data complies with all laws and the terms and policies (including terms of use and privacy and security policies) of all websites from which the Customer Data originated and all websites to which the Customer Data is copied, distributed, displayed, or published using the Avid Services.  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) arising out of or relating to Customer’s breach of the foregoing warranty.  Avid may refuse to distribute or publish, and may remove, any Customer Data that Avid determines to be in violation of the foregoing, offensive, or inappropriate.  Avid may combine the Customer Data with other information it gathers, develops, or licenses from others in offering and performing its services and fulfilling its obligations.

1.6 Suspension of Access to Avid Services.  Avid may 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 as soon as 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 and 1.6 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 best efforts to remedy the breach or issue Customer a credit for the prepaid portion of the fee for the affected Avid Services.

1.8 Support.  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 for no additional charge.

2. Information Security.  Avid shall 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. Avid shall 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 CONFIDENTIAL INFORMATION) CANNOT BE ACCESSED BY UNAUTHORIZED PERSONS CAPABLE OF OVERCOMING SUCH SAFEGUARDS.  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 FROM THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT OF AVID.

3. Feedback.  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 without obligation of any kind.  Customer hereby grants Avid an irrevocable, non-exclusive, perpetual, royalty-free license to use, display, copy, distribute, modify, make derivative works of, sell, and import the Feedback in connection with Avid’s business, including enhancement of the Avid Services.

4. Consulting Services.  In the event that Avid is to provide additional professional or consulting services outside the scope of the Avid Services described on an Order Form, the parties shall describe such additional professional or consulting services in a separate statement of work (“Statement of Work”) and attach each such Statement of Work to this Agreement in Exhibit B.  Avid shall provide 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.

5. 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 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 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 12-month renewals.  The initial term and all subsequent renewal terms are referred to together as the “License Term.”

6. Termination. If Customer terminates this Agreement for any reason other than Avid’s 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), 3 (Feedback), 6 (Termination), 7 (Fees and Payment), 8 (Confidentiality), 9 (Disclaimer of Warranties), 10 (Limitation of Liability and Damages), 11 (Certain Definitions), and 12 (General Provisions).

7. 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.

8. Confidentiality.  Each party’s Confidential Information will remain the sole and exclusive property of that party. Each party shall treat such information as confidential and use measures that are reasonable, and at least as protective as those it uses to safeguard the confidentiality of its own 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 release any Confidential Information belonging to the other party without prior written consent. 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 may disclose the Confidential Information in connection with such legal proceeding, subpoena, investigative demand, or other similar process.  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. This section shall survive the termination of this Agreement.

9. Disclaimer of Warranties.  EXCEPT AS PROVIDED IN SECTION 1.7 (LIMITED WARRANTY) AND TO THE EXTENT PERMITTED BY LAW, AVID SERVICES, SUPPORT, TRAINING, AND ANY OTHER SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND.  AVID AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. CUSTOMER EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF AVID SERVICES IS AT CUSTOMER’S SOLE RISK.  NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AVID OR ITS AUTHORIZED REPRESENTATIVES CREATES ANY OTHER WARRANTIES OR IN ANY WAY INCREASES THE SCOPE OF AVID’S OBLIGATIONS UNDER THIS AGREEMENT.  THE AVID SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION, INCLUDING CONFIDENTIAL INFORMATION, OVER THE INTERNET.  CUSTOMER ACKNOWLEDGES AND AGREES THAT AVID AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT (A) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (B) UNAUTHORIZED THIRD PARTIES (e.g., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEBSITES, COMPUTERS, OR NETWORKS.  AVID WILL NOT BE LIABLE FOR ANY SUCH ACTIVITIES NOR WILL SUCH ACTIVITIES CONSTITUTE A BREACH BY AVID OF ITS OBLIGATIONS UNDER THIS AGREEMENT.  The Avid Services may include gateways, links, or other functionality that allows Customer and Customer Affiliates to access third party services (“Third Party Services”) and third party content and materials (“Third Party Materials”).  Avid does not supply and is not responsible for any Third Party Services or Third Party Materials, which may be subject to their own licenses, end-user agreements, privacy and security policies, and terms of use.  ALL THIRD PARTY MATERIALS ARE PROVIDED AS-IS, WITHOUT WARRANTIES OF ANY KIND. AVID MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, RELATING TO ANY PRESENT OR FUTURE METHODOLOGY EMPLOYED IN ITS GATHERING OR REPRODUCING OF ANY THIRD PARTY MATERIAL, OR AS TO THE ACCURACY, CURRENCY, OR COMPREHENSIVENESS OF THE SAME.

10. Limitation of Liability and Damages.  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, 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.

11. Certain Definitions.  As used in this Agreement, the terms below when capitalized have the following meanings:

Confidential Information” means all nonpublic information and material that from all the relevant circumstances should reasonably be assumed to be proprietary or otherwise confidential. 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 the Nonperforming 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 the Nonperforming Party, and (c) the 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 attached in Exhibit A.

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.

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, 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 the appropriate Customer Order Forms. 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.

12. General Provisions.

12.1 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 President. 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).

12.2 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.

12.3 Assignment.  Customer shall not assign, transfer, or delegate its rights or obligations under this Agreement without prior 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.

12.4 Governing Law.  The laws of the State of Wisconsin 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 Dane County, Wisconsin 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.

12.5 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.

12.6 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.

12.7 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.

12.8 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.

12.9 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.

12.10 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.

12.11 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.