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Avtex General Terms & Conditions

  1. The following terms and conditions apply to the business relationship unless specified in writing or by subsequent written Agreement between Avtex Solutions, LLC. (“Avtex”) and You (the “Client”).
  2. By reading these Terms and Conditions, Client shall have agreed to and be bound by these Terms and Conditions (“Agreement”). This shall constitute the entire Agreement between Avtex and Client with respect to the subject matter hereof and cancels and supersedes any prior understanding and Agreements between the parties hereto with respect thereto. There are no representations, warranties, forms, conditions, undertakings or collateral Agreements, oral or written, express, implied or statutory, between Avtex and Client other than as expressly set forth in this Agreement.
  3. Client hereby hires Avtex and Avtex hereby agrees to provide, the product, design, development and/or other consulting services to Client. Avtex is and shall remain an independent contractor of Client for all purposes related to this Agreement, and this Agreement shall not be deemed to create a partnership, joint venture, or employment or agency relationship between the parties.
  4. Avtex and Client may execute a Statement of Work for product, design, development and/or other consulting projects that Avtex agrees to undertake for Client. The provision of Services covered by a Statement of Work will be subject to the terms of this Agreement and the additional terms, conditions and limitations set forth in the Statement of Work. All Statement of Work shall be detailed in writing and signed-off by both Client and Avtex.
  5. Avtex will perform all Solutions in a professional manner, and in accordance with each applicable Statement of Work. Solutions will be provided within the time reasonably necessary for the completion thereof in the ordinary course of business, and in substantial conformity with any schedule incorporated in any Statement of Work or otherwise agreed upon in writing by Client and Avtex.
  6. If applicable, Client will supply Avtex personnel working at Client’s premises with suitable facilities, office space and access to telephones, Client’s computers and servers, and the internet, for use in connection with Avtex's performance of the Solutions.
  7. Client will perform those tasks and assume those responsibilities specified in this Agreement and each applicable Statement of Work and any applicable exhibits or addenda. Client acknowledges that the success of its engagement of Avtex depends on Client's timely and effective satisfaction of its responsibilities under this Agreement and such Statement(s) of Work, as well as timely responses from Client to requests for information, decisions, testing, and approvals. Avtex will rely on the decisions and approvals of Client in connection with Avtex's performance under this Agreement. Client is responsible for abiding to the project timeline as determined during the Envisioning Phase or Project Kick Off. Should the Client’s delay alter this timeline, then Avtex has the right to change the timeline to match Avtex resource availability.
  8. Changes to the proposal of Solutions covered by a Statement of Work shall be in a written change order signed by both Avtex and Client. Avtex will not be obligated to commence or continue work in connection with or affected by a change order until the change order is signed by both Avtex and Client and any additional fees are paid, in accordance with the change order.
  9. Unless specified in a Statement of Work, Avtex shall be paid according to the following schedule (all amounts at then current Avtex rates for Professional Services):
    1. For Professional Services at Time and Material (“T&M”): Client shall be invoiced monthly for actual hours incurred.
    2. For Professional Services at Fixed Bid: Client shall be invoiced 50% upon signature and the remaining 50% upon completion of the project.
    3. For Managed Services, Maintenance and Support Contracts are 100% due upon signature.
    4. For software and any applicable hardware are 100% is due upon signature.
    5. For any out-of-pocket expenses shall be billed to Client at cost (without any markup) or at the applicable IRS rate.
  10. All invoices shall be paid to Avtex within thirty (30) days of receipt by Client. Any invoices not paid within 30 days may be subject to an interest charge of 1.5% or the highest rate allowed by law.
  11. In consideration for payment in full, Avtex grants to Client: (a) A non-exclusive perpetual, world-wide, royalty free license to use all installed Software developed for this Agreement (or proposal), including any pre-existing hardware and/or software designs, and implementation included in this Agreement (or proposal), as necessary for Client’s internal business purposes; and (b) A non-exclusive, non-transferable right and license to use the software and related documentation of Avtex installed standard products only with the software version that it is licensed and intended to be used, as necessary for Client’s internal business purposes, and provided Client has paid for sufficient user or seat licenses.
  12. Client acknowledges that Avtex may incorporate or utilize its technical knowledge, methodologies, certain computer code, methods, inventions, concepts and know-how (“Avtex Expertise”) into any source code, compiled code, custom software or other programming or design work provided by Avtex to Client (“Work Product”), which were not or will not be created solely for use in or with such Work Product. Client acknowledges that Avtex Expertise will not become the property of Client, and remain the sole and unencumbered property of Avtex, without any claim of Client thereto.
  13. Upon written acceptance of any final Work Product detailed in a Statement of Work by Client, Client shall own the final Work Product, including customized software (or the latest iteration thereof), manuals, text and graphics, in their final form, subject to the retained rights for Avtex Expertise; any copyright for any of the Work Product that is registered by Client shall only relate to and cover the final Work Product, manuals and user instructions in their final form, as a compilation, and shall in all respects be subject to the rights retained by Avtex.
  14. Client expressly acknowledges that existing proprietary software of Avtex, and software of third parties, which is provided by Avtex for use in conjunction with any Work Product (including subsequent versions of proprietary software of Avtex or third-party software, and enhancements thereof provided by Avtex), is and shall remain the sole and exclusive property of Avtex or such third parties. Client will agree to any applicable third-party End User License Agreements for the software.
  15. Project is deemed to be complete and accepted after the date of completion of the statement of work or provision of the final Work Product.
  16. With respect to Avtex services, no other warranty, whether written or oral, is expressed or implied for any service provided hereunder, and all implied warranties are disclaimed, including but not limited to any implied warranty of utility, merchantability or fitness for a particular purpose.
  17. Any claim of warranty must be made by written notice to Avtex within thirty (30) days after discovery of the issue, and in no event more than ninety (90) days after the date of acceptance of the Solutions or provision of the final Work Product.
  18. With respect to Avtex licensed software, the sole liability of Avtex is limited to providing programming services to attempt to correct any substantial nonconformity. This must be brought to Avtex’s attention, in writing, during the 90-day warranty period.
  19. Avtex does not warrant that the operation of Goods will be uninterrupted or error free.
  20. Avtex warrants that the final Work Product provided by Avtex will substantially conform to generally accepted industry standards for similar work.
  21. Client expressly represents and warrants to Avtex that it does, and will continue to, regularly perform back-ups of Client’s data, and that in no event will Avtex be liable for recovery or restoration of data.
  22. Avtex’s maximum liability to Client shall not exceed the amount paid by Client to Avtex under the applicable Statement of Work by which the liability arose.
  23. Avtex assumes no responsibility or liability for third-party software or hardware and are provided “AS-IS”. Further, Avtex assumes no responsibility or liability for any materials procured directly by Client for the solution.
  24. Avtex assumes no responsibility for consequential, incidental or special damages (including, without limitation, claims for lost profits or revenue, business interruption or similar claims) arising out of or related to the provision of any solutions or work product pursuant to this Agreement or any statement of work.
  25. Client will not disassemble or decompile object code. Client will not decrypt the Software. Client has no right to duplicate, resell, sublicense, or transfer any work product or license granted hereunder. If it is determined that Client has engaged in any of the foregoing activities, Avtex shall consider Client in breach of this Agreement.
  26. Either party may terminate this Agreement without cause by giving Avtex not less than 60 business days’ written notice of the effective date of termination. Avtex will continue to perform the project work at the staffing levels, existing at the time of receipt of such notice of termination, until the specified effective termination date.
  27. Upon termination of this Agreement, either by breach or non-cause (§ 23 and 24), Avtex shall (a) cease all work being performed hereunder, (b) revoke any licenses issued to client, and (c) be entitled to payment for all amounts outstanding for services performed up to and including the date of the breach as well as all amounts for hardware and software. Immediately upon termination, the Software and all copies of the Software will be destroyed or returned to Avtex. Copies of the Software that are merged into adaptations, except for individual pieces of data in the Client’s data base, will be removed and destroyed or returned to Avtex.
  28. Updates, upgrades or other enhancements are provided under separate Avtex support or maintenance Agreement.
  29. Both Avtex and Client agree that any information disclosed to the other regarding methodologies, projects, the Solutions and/or Work Product to be provided pursuant to this Agreement and applicable Statements of Work, information developed by a party and not generally known, and all other information disclosed by a party to the other which is designated (in writing) as "proprietary" or "confidential" at the time of its disclosure, will be considered "Confidential Information," and shall be held in confidence by the receiving party.
  30. All Information and necessary technical data for the operation of the system are proprietary in nature. Avtex retains exclusively for itself all proprietary rights (including manufacturing rights) in and to all Information, designs, consulting process details and other necessary technical data pertaining to projects or designs provided to the Client and to all discoveries, inventions, patent rights, products, designs and all other property rights arising out of work done solely by Avtex, or jointly with the Client, in connection with this Agreement. The Client agrees to perform all acts necessary to protect and maintain the proprietary rights and title of Avtex as herein provided.
  31. Client, at its sole cost, will, defend, indemnify and hold Avtex and its officers, directors, agents and employees harmless from and against all liability and costs (including court costs and reasonable fees of attorneys and other professionals arising out of (a) bodily injury or death of a person or damage to tangible property to the extent proximately caused by the negligence or willful misconduct of such party, (b) Client’s breach or default of this, or any other, Agreement, or (c) the infringement or misappropriation of any United States patent, copyright, trade secret or other intellectual property right by any materials provided by such party to the other party.
  32. The client agrees not to actively solicit the employees or independent contractors of Avtex during the term of this Agreement. If an employee or independent consultant is hired by the client, or one of its related companies, within a period of two (2) years following expiration or termination of this Agreement, the client agrees to pay Avtex 80% of the employee’s first year salary.
  33. No action shall be brought for any breach of this Agreement more than one year after the accrual of the cause of action thereof.
  34. No changes, amendments, revisions or alterations to any Statement of Work shall be valid or binding unless set forth in writing and duly executed by both parties.
  35. If any provision of this Agreement is determined to be invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision or part thereof and the remaining part of such provision and all other provisions hereof shall continue in full force and effect.
  36. The laws and regulations of the State of Minnesota and the United States of America shall govern the validity, performance, and construction of this Agreement and any Statement of Work. Both Avtex and Client stipulate, for the avoidance of doubt, that Article 2 of the Uniform Commercial Code and the United Nations Convention for the International Sale Goods shall not apply. Any and all disputes, claims or controversies, arising out of or in any way connected with this Agreement shall be subject to the State or Federal Courts sitting in Hennepin County, Minnesota, and the Parties hereby waive any objection to the exclusive jurisdiction thereof, including Forum Non Conveniens. The prevailing Party to any dispute shall be entitled to recovery of costs of the dispute, including attorney’s fees.