Terms & Conditions
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- GENERAL: These standard terms and conditions and VIVID’s written specifications, quotations or proposals to which these standard terms and conditions are attached (hereinafter all of the foregoing shall be collectively referred to as the “Purchase Agreement”) shall apply to and are automatically incorporated in, all quotations, orders, agreements and contracts for goods (including without limitation, software products and parts, and design service deliverables) (collectively, the “Product”) and services (including without limitation, services training, programming, design, consulting, maintenance, parts and repair services) (collectively, the “Service”) purchased or received by any and all customers or recipients (collectively, the “Purchaser”) from Vivid Emerald, LLC. (“VIVID”). No addition to or modification of the Purchase Agreement will be accepted by or binding upon VIVID unless consented to in writing and signed by an authorized VIVID representative (and such consent may be withheld by VIVID for any reason or no reason). Any and all terms and conditions that may be proposed by the Purchaser or appear in any Purchase Order (“PO”) and/or any document or instrument from the Purchaser, shall automatically be deemed to be objected to and not accepted by VIVID unless consented to in writing and signed by an authorized VIVID representative (and such consent may be withheld by VIVID for any reason or no reason), and the Purchase Agreement shall take precedence, prevail, control and solely govern in all instances. The Purchase Agreement contains the entire understanding and agreement of VIVID and the Purchaser concerning the subject matter thereof, and there are no promises, agreements, conditions, understandings, warranties or representations (oral or written, express or implied) regarding the subject matter of the Purchase Agreement other than as set forth in the Purchase Agreement. Any and all prior agreements with respect to the subject matter of the Purchase Agreement are hereby revoked and forever terminated. The Purchase Agreement is, and is intended by VIVID and the Purchaser to be, an integration of any and all prior agreements or understandings (oral or written) with respect to the subject matter of the Purchase Agreement, and the Purchase Agreement shall not be amended or modified except upon the written agreement of VIVID. The Purchase Agreement shall survive the delivery and/or completion of the Product and any Services described in the Purchase Agreement. THE PURCHASER ACKNOWLEDGES THAT IT HAS READ THE PURCHASE AGREEMENT, UNDERSTANDS THE PURCHASE AGREEMENT, AND AGREES TO BE BOUND BY THE PURCHASE AGREEMENT.
- ACCEPTANCE: Any and all transactions and agreements between VIVID and the Purchaser are limited to and conditioned upon the Purchaser’s acceptance of the Purchase Agreement. POs are not binding upon VIVID until accepted by an authorized VIVID representative. VIVID reserves the right to refuse service, terminate accounts or cancel orders in its sole discretion. VIVID may also modify these standard terms and conditions from time to time without notice.
- CANCELLATION: If after VIVID’s acceptance of the Purchaser’s PO or other order or request from the Purchaser for Product or Services the Purchaser terminates or cancels such purchase or reduces the quantities or scope of Product or Service for such purchase, then in addition to (and not in limitation of) any and all rights and/or remedies provided in the Purchase Agreement, at law or in equity, the Purchaser shall be liable for and shall promptly pay and reimburse VIVID for, all costs incurred by VIVID associated with such purchase, including but not limited to: materials purchased that are non-returnable and non-cancelable, back-charges from vendors, labor expended including time spent in the process of terminating the project, NRE costs, liabilities and obligations incurred by VIVID, plus cancellation charges equal to fifteen percent (15%) of the cancelled portion of the project cost, in relation to such purchase.
- SCOPE CHANGES: The purchase price and delivery cost charged by VIVID to the Purchaser for the Product or Services ordered by the Purchaser, may be increased by VIVID as a result of the Purchaser’s changes to the requirements, specifications, or assumptions set forth in VIVID’s written specifications, quotation, or order acknowledgement, and the Purchaser shall pay such increased purchase price and costs within thirty (30) days of the date of VIVID’s invoice therefor.
- DELIVERY: Shipping dates are merely estimates, but every reasonable effort will be made to ship according to schedule. Delivery times do not include time for Purchaser to provide technical or requirements data or information necessary for VIVID’s performance, nor time for Purchaser’s review and approval of interim milestone deliverables. Delivery times may vary depending on service availability. Purchaser agrees that VIVID shall not be responsible or liable for any damages arising out of or related to any failure to deliver Product within the time prescribed therefor. The Product and Services described in the Purchase Agreement shall be deemed to be inspected and accepted by Purchaser two (2) days after the date of the Purchaser’s receipt thereof.
- LIMITATION OF LIABILITY: VIVID’S LIABILITY ON ANY ACTIONS, CLAIMS, OR CAUSES OF ACTION ARISING FROM OR RELATED TO THE PURCHASE AGREEMENT, THE PERFORMANCE OR BREACH OF THE PURCHASE AGREEMENT OR CONNECTED IN ANY MANNER WITH THE SUPPLYING OF ANY PRODUCTS OR SERVICES HEREUNDER, THE DESIGN, THE SALE, RESALE, OPERATION OR USE ALLOCABLE TO SUCH PRODUCTS, OR SERVICES THEREOF INVOLVED IN THE CLAIM, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NELIGENCE AND FOR PROPERTY DAMAGE, PERSONAL INJURY AND DEATH) OR OTHER GROUNDS, SHALL NOT IN ANY EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT, PARTS OR SERVICES INVOLVED IN THE CLAIM, REGARDLESS OF CAUSE OR FAULT. IN NO EVENT SHALL VIVID BE LIABLE FOR CLAIMS BASED UPON BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED WARRANTY, OR NELIGENCE FOR ANY DAMAGES, WHETHER DIRECT, IMMEDIATE, OR FORESEEABLE FOR ANY EXPENSES INCURRED BY REASON OF THE USE OR MISUSE, DESIGN, SALE OR PRODUCTION OF THE PRODUCT, THE COMPONENTS THEREFOR, OTHER PRODUCTS OR SERVICES, WHICH DO OR DO NOT COMFORM TO THE PURCHASE AGREEMENT. VIVID SHALL NOT BE RESPONSIBLE TO PURCHASER OR ANY THIRD PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUES, SALES, DATA, BUSINESS, GOODWILL OR USE, EVEN IF VIVID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION IN ANY OTHER AGREEMENT OR DOCUMENT. Any cause of action against VIVID must be instituted within one (1) year from the date of purchase or provision of the Products or Services.
- FORCE MAJEURE: VIVID shall not be liable or responsible for any losses or damages caused by any detentions, delays or failures to perform resulting in whole or in part from accidents, fires, Acts of God, severe weather conditions, labor disruptions, government decrees or controls, insurrections, war, risks, shortages, inability to procure or ship product or obtain permits and licenses, insolvency or other inability to perform by the manufacturer or supplier, delay in transportation, any other commercial impracticability and/or any circumstances beyond the control of VIVID in its business operations.
- USE OF PRODUCT: The parties understand and agree that the Purchaser is solely responsible to determine the suitability of the Product for the Purchaser’s intended use and, except as otherwise provided in this paragraph, the Purchaser shall indemnify and hold VIVID harmless from any claims or consequential damages or costs arising from or related to any and all uses of the Product. The parties understand that VIVID may require Purchaser to sign a Product Acceptance and Release Agreement prior to the beginning the production of Service in volumes beyond the marketing prototype level.
- INTELLECTUAL PROPERTY RIGHTS:
a) Unless otherwise expressly agreed between the parties, all ownership, rights, title and interest to or in all rights, title or interest for or associated with the Product or Services (including but not limited to intellectual property therefor; collectively, the “IP Rights”) shall be the sole and exclusive property of VIVID. Upon the Purchaser’s payment in full to VIVID of the total purchaser price and related project costs incurred by VIVID, VIVID will assign all such IP Rights exclusively and royalty-free to the Purchaser. VIVID shall retain its rights to the underlying marketing knowledge, design practices, technology, processes, etc. that were utilized by VIVID in creating the Product per the specifications of Purchaser. The Products offered for sale by VIVID may be subject to patent, trademark, copyright, design and other rights of third parties. VIVID shall in no event whatsoever be responsible or liable in the event of any claim of infringement of any such rights.
b) Purchaser will indemnify, defend and hold VIVID and its affiliates, agents, officers, directors, employees and subcontractors harmless from and against all claims, damages, losses and reasonable expenses (including but not limited to reasonable attorneys’ fees), to the extent arising out of or resulting in whole or in party from i) any claim that the design of the products provided by Purchaser infringe a third party patent, copyright, trademark, trade secret or other intellectual property right, or ii) any claims arising out of the design of the product provided by Purchaser for death, personal injury, property damage, product liability or violation of environmental, health or safety standards.
- WARRANTY. Subject to Section 7, VIVID provides the following warranties:
a) Software portions of the Product that were purchased by VIVID and re-sold to Purchaser may be covered by warranties originating with the original manufacturer. Such warranties, in whatever form they may exist, shall be transferred (to the extent transferable) by VIVID to the Purchaser upon the Purchaser’s full payment to VIVID of the purchase price invoiced by VIVID to the Purchaser for or related to the Product. Copies of any applicable warranties will be supplied upon written request by the Purchaser.
b) VIVID shall carry out the Services in a workmanlike and professional manner. If the Purchaser notifies VIVID in writing, within thirty (30) days from the date of VIVID’s shipment of the Product to the Purchaser, of any claimed defect in the Services, and such claim by Purchaser is verified by VIVID after VIVID’s appropriate inspection, Purchaser’s sole and exclusive remedy shall be limited to VIVID’s correction of the claimed defect at the design and documentation level, excluding repair or replacement of materials.
c) Production of Product beyond the marketing prototype level shall be free from defects in workmanship for a period of ninety (90) days from the date of VIVID’s shipment of the Product to the Purchaser, excluding defects in the design or marketing of the Product. Purchaser’s sole and exclusive remedy shall, at the sole discretion of VIVID, be limited to either: i) repair or replacement of the defective Product, or ii) refund of the purchase price in exchange for return of the defective Product.
d) EXCEPT AS EXPRESSLY PROVIDED HEREIN, VIVID MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESSLY OR IMPLIEDLY, CONCERNING THE PRODUCT, ANY COMPONENTS RESOLD BY VIVID TO THE PURCHASER, ANY DOCUMENTATION FOR THE FOREGOING, ANY MAINTENANCE SERVICES OR OTHER SERVICES TO THE FOREGOING. VIVID SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. VIVID DOES NOT WARRANT THAT THE PRODUCT WILL MEET THE REQUIREMENTS OF THE PURCHASER OR WILL OPERATE IN THE MANNER THAT MAY BE SELECTED FOR USE BY THE PURCHASER OR THAT THE OPERATION OF THE PRODUCT AND/OR COMPONENTS WILL BE UNINTERRUPTED. No warranty will apply if the Products are in any way altered or modified after delivery by VIVID.
- AGENCY CERTIFICATION AND APPROVAL: VIVID makes no claims, representations or warranties with respect to agency certifications or approval unless otherwise specifically stated in VIVID’s proposal or quotation; such filings or agency approval are the sole and exclusive responsibility and obligation of Purchaser.
- TERMS OF PAYMENT: Payments are to be made in United State Dollars through a method of wire, ACH, credit card, check, or cash, unless otherwise indicated on VIVID’s quotation. Unless otherwise noted, the Purchaser agrees to pay VIVID directly for any fee assessed to VIVID that is related to his or her payment. This includes but is not limited to wire fees, ACH fees, and credit card processing fees. Terms are thirty (30) days net from date of VIVID’s invoice to the Purchaser, unless otherwise indicated on VIVID’s quotation. The INITIAL payment is required day of to begin the PRODUCT or SEVICE Overdue accounts will be assessed a late charge of one and a half percent (1.5%) per month on unpaid balances (eighteen percent (18%) per annum), or the largest amount allowed by the law of the State of Ohio, whichever is less. Accounts more than sixty (60) days overdue may be assigned by VIVID to outside collection, all work will be halted after (15) days of unpaid invoices; Purchaser agrees to pay all charges associated with any such collection procedures (including but not limited to reasonable attorneys’ fees). Notwithstanding any claim, demand or judgments that the Purchaser may have against VIVID, the Purchaser is prohibited from setting off any such amount from the amounts due to VIVID under the Purchase Agreement without a court order for same. VIVID shall have the right of set-off and deduction for any sums owed.
- TAXES. VIVID prices and/or quotations do not include sales, use, excise or similar taxes. All applicable taxes must be paid by Purchaser to VIVID, or Purchaser shall provide VIVID with a tax-exempt certificate acceptable to the appropriate taxing authorities.
- GOVERNING LAW: The Purchase Agreement and all agreements between VIVID and the Purchaser, shall each be governed by, and construed in accordance with, the laws of the State of Ohio without regard to conflicts of law rules. The Purchaser and VIVID do each hereby agree that they shall submit themselves to the venue and jurisdiction of the competent courts of the Cuyahoga County, Ohio, or the United States District Court for the Northern District of Ohio, Eastern Division, in connection with any and all claims, allegations, causes of action or legal proceedings related to or arising from the Purchase Agreement, all agreements between VIVID and the Purchaser, the Product, the components therefor and/or any equipment or Services sold or provided by VIVID to the Purchaser, expressly waiving their rights to any other jurisdiction or venue which might correspond to them due to their domiciles or legal residence. The parties expressly exclude the application of the 1980 United Nations Convention of Contracts for the International Sales of Goods, if otherwise applicable.
- RESTRICTIVE COVENANTS: For a period of three (3) years commencing on the date of the Purchase Agreement (as set forth in written specifications, quotations or proposals to which these standard terms and conditions are attached), the Purchaser agrees and covenants to VIVID that the Purchaser shall not hire, employ, contract with, retain, or otherwise induce (or attempt any of the foregoing) any employee or independent contractor of VIVID (collectively, “Worker”) to leave or terminate such Worker’s employment, relationship or service with or to VIVID or directly or indirectly assist any other person or entity in requesting or inducing any Worker to leave or terminate the employ, relationship or service of or with VIVID. If the Purchaser breaches any of the foregoing provisions of this Section, then the Purchaser shall promptly pay to VIVID liquidated damages equal to fifty percent (50%) of such Worker’s then-current annual salary or compensation. This provision for liquidated damages shall be in addition to, and not in limitation of, any and all rights and/or remedies provided in the Purchase Agreement, at law or in equity (including but not limited to VIVID’s right to injunctive relief).
- ASSIGNMENT: Neither the Purchase Agreement nor any interest herein shall be assignable by the Purchaser without the prior written consent of VIVID (which consent may be withheld for any or no reason).
- SEVERABILITY: If any provision or provisions of the Purchase Agreement shall be held to be invalid, illegal or unenforceable, such provision(s) shall be enforced to the fullest extent permitted by applicable law, and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- WAIVER: VIVID’s failure to insist on performance of any term or condition contained in the Purchase Agreement, or failure to exercise any of VIVID’s rights hereunder, shall not constitute a waiver of any of VIVID’s rights or remedies under the Purchase Agreement.
- NO THIRD PARTY BENEFIT: The provisions set forth in the Purchase Agreement are for the sole benefit of the parties hereto, and confer no rights, benefits or claims upon any person or entity not a party hereto.
- MARKETING MATERIALS: VIVID reserves the right to use any SERVICE or PRODUCT for VIVID’S marketing promotion in a positive way unless otherwise agreed upon within the contract.
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