In this Agreement, AVID Products, Inc., a Rhode Island business corporation, is referred to as “AVID or “Seller” and the party to whom AVID’s order acknowledgement is addressed is referred to as “Buyer.” Unless otherwise specifically agreed to in writing by Seller, these AVID Terms and Conditions of Sale (the “Agreement”) shall apply to any and all orders placed by Buyer for products of AVID (the “Product” or “Products”).
ACCEPTANCE OF ORDERS. AVID’s acceptance of all orders and all offers and sales by AVID are subject to and expressly conditioned upon Buyer’s assent to the terms and conditions of this Agreement. The Agreement consists of these sales terms and conditions, AVID’s quotation, if any, and AVID’s order acknowledgement. Buyer’s acceptance of any offer by AVID must be made on such terms and conditions exactly as offered by AVID. Any of Buyer’s terms and conditions which are different from or in addition to those contained in this Agreement are objected to by AVID and shall be of no effect unless specifically agreed to in writing by AVID. Commencement of performance or shipment shall not be construed as acceptance of any of Buyer’s terms and conditions which are different from or in addition to those contained in the Agreement. If a contract is not earlier formed by mutual agreement in writing, acceptance by Buyer of Products shall be deemed Buyer’s assent to all of the terms and conditions of this Agreement.
CONFIDENTIALITY. All information, including quotations, specifications, drawings, prints, schematics, and any other engineering, technical or pricing data or information submitted by AVID to Buyer related to any order for Products are the confidential and proprietary information of AVID; and Buyer and its employees, agents or other parties for whom Buyer is responsible may not disclose AVID’s confidential and proprietary information to any third parties, or use AVID’s confidential and proprietary information for its own account or that of any third party, except in the performance of the order.
PAYMENT TERMS. AVID reserves the right to change prices for products at any time, and to correct pricing errors that may inadvertently occur. AVID accepts all major Credit Cards, prepayments with Checks, and Purchase Order Numbers. If Buyer is a tax-exempt customer, please provide us with a copy of Tax-Exempt Certificate. All payments shall be in U.S. dollars. Buyer shall pay for Products in cash upon delivery, unless an earlier or later time for payment is specified in the order acknowledgement (in which case payment shall be due at the time so specified). Each shipment shall be considered a separate and independent transaction and payment for each shipment shall be due accordingly.
AVID may, at its option, elect to extend credit to Buyer. If AVID extends credit to Buyer, invoices will be issued upon shipment and payment shall be due in full within thirty (30) days from the invoice date or such other date specified in the Agreement. AVID reserves the right to change the amount of or withdraw any credit extended to Buyer. Time is of the essence with respect to all payments.
Amounts not paid when due shall be subject to interest at the rate of one and one-half percent (1½%) per month until fully paid, or, the maximum rate permitted by applicable state law.
DELIVERY, TITLE AND RISK OF LOSS. Since the actual delivery of any order can be impacted by many events beyond AVID’s control once it leaves our facilities, AVID cannot be held liable for late deliveries. We will, however, work with the Buyer to ensure a smooth delivery. AVID ships via FedEx, UPS, or USPS. The ship-to address cannot be a PO Box. Unless otherwise agreed to in writing by AVID, Products shall be shipped EXW AVID’s facilities or inventory hub (Incoterms 2010) to any location designated by Buyer and shall be deemed delivered to Buyer when delivered to the transportation company at the shipping point. Unless otherwise agreed to in writing by AVID, all transportation charges and expenses shall be paid by Buyer, including the cost of any insurance against loss or damage in transit which AVID may obtain at Buyer’s written request. AVID reserves the right to ship Products freight collect.
Subject to the security interest reserved to AVID, title and risk of loss and/or damage to Products shall pass to Buyer upon delivery of the Products to the transportation company at the shipping point. Confiscation or destruction of or damage to Products shall not release, reduce or in any way affect the liability of Buyer. In the event Buyer rejects or revokes acceptance of any Products for any reason, all risk of loss and/or damage to such Products shall nonetheless remain with Buyer unless and until the same are returned at Buyer’s expense to such place as AVID may designate in writing.
All Products must be inspected upon receipt and claims filed by Buyer with the transportation company when there is evidence of shipping damage, either concealed or external.
PURCHASE MONEY SECURITY INTEREST. AVID reserves a Purchase Money Security Interest under the Uniform Commercial Code in the Products and in the proceeds derived from such Products. Buyer shall execute such documents as AVID may require, including, but not limited to: (i) a Security Agreement; and (ii) one or more Financing Statements. The Buyer agrees and hereby does appoint AVID as attorney in fact to do, at the option of AVID, all acts and things AVID may deem desirable to perfect and continue to perfect the Purchase Money Security Interest, including AVID’s authority to file financing statements naming Buyer as debtor and AVID as secured party without Buyer’s signature in those states where such filings are permitted. These interests shall be satisfied by payment in full of the price.
PERFORMANCE. AVID will make a reasonable effort to observe the dates specified herein or such later dates as may be agreed to by Buyer for delivery or other performance, but AVID shall not be liable for any delay in delivery or failure to perform due to acceptance of prior orders, strike, lockout, riot, war, fire, act of God, accident, delays caused by any subcontractor or supplier or by Buyer, technical difficulties, failure or breakdown of machinery or components necessary for order completion, inability to obtain or substantial rises in the price of labor or materials or manufacturing facilities, curtailment of or failure to obtain sufficient electrical or other energy supplies, or compliance with any law, regulation, order or direction, whether valid or invalid, of any governmental authority or instrumentality thereof, or due to any circumstances or any causes beyond its reasonable control, whether similar or dissimilar to the foregoing and whether or not foreseen.
Buyer agrees that any delay in delivery or failure to deliver or perform any part of this Agreement shall not be grounds for Buyer to terminate or refuse to comply with any provisions hereof and no penalty of any kind shall be effective against AVID for such delay or failure; provided, however, that if the delay or failure extends beyond six (6) months from the originally scheduled date either party may, with written notice to the other, terminate this Agreement without further liability for the unperformed part of this Agreement.
ACCEPTANCE. All Products delivered hereunder shall be deemed accepted by Buyer as conforming to this Agreement, and Buyer shall have no right to revoke any acceptance, unless written notice of the claimed nonconformity is received by AVID within thirty (30) days of delivery thereof. In the event that the Buyer gives such notice of nonconformity, Buyer shall afford AVID (i) reasonable opportunity to inspect the alleged nonconforming Products; and (ii) a reasonable opportunity to provide substitute conforming Products.
DEFAULT AND TERMINATION. Buyer may terminate this Agreement if AVID materially defaults in the performance of its obligations hereunder and fails to cure such default within sixty (60) days after written notice thereof from Buyer. Such termination shall be Buyer’s sole remedy in the event of a default by AVID.
Buyer shall be deemed in material default under this Agreement if Buyer fails to perform any of its obligations hereunder, fails to pay any amounts when due hereunder, cancels or attempts to cancel this Agreement prior to delivery or refuses delivery or otherwise fails to perform any of its obligations hereunder or fails to pay AVID any sums due under any other agreement or otherwise. In the event of a material default by Buyer, AVID may, upon written notice to Buyer, (1) suspend its performance and withhold shipments, in whole or in part, (2) terminate this Agreement, (3) declare all sums owing to AVID immediately due and payable and/or (4) recall Products in transit, retake same and repossess any Products held by AVID for Buyer’s account, without the necessity of any other proceedings, and Buyer agrees that all Products so recalled, taken or repossessed shall be the property of AVID, provided that Buyer is given credit therefor. Exercise of any of the foregoing remedies by AVID shall not preclude exercise of any of the others, and neither the existence nor exercise of such remedies shall be construed as limiting, in any manner, any of the rights or remedies available to AVID under the Uniform Commercial Code or other laws.
LIMITED WARRANTY. AVID’s liability and the sole remedy under this warranty is limited to the applicable warranty period for the Product and to repair or replacement of items determined by AVID to be defective AVID shall have no liability under this warranty unless the procedures of the Return Policy are followed, including the issuance of an RMA.
AVID is notified in writing within sixty (60) days after discovery of the defect and the defective items are promptly returned to AVID, freight prepaid, and received by AVID.
Only AVID products purchased by consumers directly from AVID or an authorized AVID distributor or reseller, carry our limited warranty. This limited warranty is extended only to the original end-use purchaser or the person receiving the product as a gift, and shall not be extended to any other person or transferee.
AVID warrants that this product, when delivered to Buyer in new condition, in original packaging, from AVID and used in normal conditions, is free from any defects in manufacturing, materials and workmanship for the following periods from the date of retail purchase by the original end-use purchaser:
Audio and Electronic Products – 1 Year after date of purchase; excludes limited use items.
Products may be discontinued at any time.
This warranty does not cover defects resulting from: improper or unreasonable use or maintenance; failure to follow operating instructions; accident; excess moisture; insects; lightning; power surges; connections to improper voltage supply; unauthorized alteration or modification of original condition; damages caused by inadequate packing or shipping procedures; loss of, damage to or corruption of stored data; damages caused by use with other products; product that requires modification or adaptation to enable it to operate in any country other than the country for which it was designed, manufactured, approved and/or authorized, or repair of products damaged by these modifications; and products purchased from unauthorized dealers.
During the warranty period, AVID will, at our sole option, repair or replace (using new or refurbished replacement parts) any defective parts within a reasonable period of time and free of charge.
Shipping and insurance for transportation from the customer to AVID, as well as import fees, duties and taxes, will be paid by the customer.
THE FOREGOING WARRANTY PROVISIONS ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY AGAINST INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Remedies for any breach of warranty are limited to those provided herein to the exclusion of all other remedies, including, without limitation, incidental or consequential damages. No warranty or agreement varying or extending the foregoing warranty and limitation of remedy provisions may be relied upon unless it is in writing and signed by the President of AVID. No representation or affirmation of AVID, whether by words or action, shall be construed as a warranty.
RETURN POLICY. If AVID determines that a Product is covered by the Limited Warranty, then Buyer must return product, with proof of purchase, in accordance with the following procedures:
- Please download the Return of Material Authorization (RMA) Request form or call 1-888-575-AVID to receive the form via email – No actual merchandise returns will be accepted without prior authorization and AVID issued RMA #.
- Fully complete the RMA form and submit via email to email@example.com
- AVID will review request and contact Buyer with any additional questions. Upon claim approval, AVID will issue Buyer the required RMA # for return and processing.
- Follow instructions on RMA form for the merchandise return and shipping instructions.
- Label and ship the product, freight prepaid, to the address provided on the RMA form.
- Please ensure the issued RMA # is prominently on the shipping label as instructed. -Cartons not bearing an RMA number may be refused and cause delays in processing the claim.
All product must be unused in original packaging, in resalable condition and include all components including manuals, cables, earpads, etc within 30 days of purchase. All returns must be authorized by an AVID representative before returned and are subject to individual customer contracts and agreements and disclosures.
All returns are subject to a 15% restocking fee.
LIMITATION OF LIABILITY AND CLAIMS. AVID’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE SHALL IN NO EVENT EXCEED THE AMOUNT, IF ANY, RECEIVED BY AVID HEREUNDER. IN NO EVENT SHALL AVID BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL LOSS OR DAMAGES OF ANY KIND, HOWEVER CAUSED, OR ANY PUNITIVE, EXEMPLARY OR OTHER DAMAGES. NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR PRODUCTS OR SERVICES FURNISHED BY AVID MAY BE BROUGHT BY BUYER MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUED.
TAXES. Unless expressly stated in AVID’s invoice, the purchase price for the Products furnished by AVID excludes all governmental or brokerage taxes, duties, fees, charges or assessments. AVID may elect to add any such taxes, duties, fees, charges or assessments to the invoice amount payable to AVID by Buyer. Buyer must provide AVID with documentation acceptable to AVID of any exemptions claimed from taxes, duties, permits, fees, charges or assessments in advance.
INDEMNITY. Buyer agrees to indemnify and hold harmless AVID and its vendors from any and all claims or liabilities asserted against AVID or its vendors in connection with the manufacture, sale, delivery, re-sale, or repair or use of any Product furnished under these governing Terms & Conditions arising in whole or in part out of or by reason of the failure of Buyer, its agents, servants, employees or customers to follow directions, instructions, warnings or recommendations furnished by AVID or its vendors in connection with such Products, or by reason of the failure of Buyer, its agents, servants, employees or customers to comply with all federal, state or local laws and regulations applicable to such Products, or by reason of the negligence of Buyer, its agents, servants, employees or customers.
ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties and supersedes all prior negotiations, proposals, agreements and understandings, whether oral or written, relating to the Products to be purchased hereunder or otherwise relating to the subject matter of this Agreement. Any representation, warranty, course of dealing or trade usage not expressly contained or referenced herein shall not be binding on AVID.
ATTORNEY’S FEES. In the event of default in payment of the purchase price or any part thereof, Buyer agrees to pay AVID’s expenses, including reasonable attorney’s fees and expenses, incurred by AVID in enforcing payment thereof, including all expenses incurred in connection with any arbitration or judicial proceeding.
ASSIGNMENT. Buyer shall not assign or transfer any rights or claims under this Agreement without the prior written consent of AVID, and any purported assignment made without such consent shall be void. This Agreement shall be binding upon and shall inure to the benefit of the successors and permitted assigns of the parties.