Advent Terms & Conditions
Version 1.0, updated August 14, 2024
1. Procedures, Changes in Scope and Payment. Advent, LLC (“Advent”) will use commercially reasonable efforts to deliver this project in a way that faithfully expresses Client’s design objectives. If there needs to be a change in scope, Advent will submit a change order that lists the additions or deletions, as well as the impact of the change on deadlines and the Fee. If the change order is approved by Client in writing, it will be added or subtracted from the work product to be delivered (the “Deliverables”), work to be performed, or scope of the project, and any changes in deadlines or to the Fee will be honored by all parties. Unless otherwise agreed upon by Advent in writing, each month, Advent shall provide Client an invoice for work performed in the preceding month and Client shall pay all invoiced amounts upon receipt of such invoice, but in no event later than seven (7) days from the date of invoice. Client shall pay all invoiced amounts without setoff, recoupment or withholding of any kind. Client further understands and agrees that there may be certain portions of the work or Deliverables which Advent is not obligated to commence, complete or provide unless and until Client has paid up front for such work or Deliverables or otherwise made a deposit. Advent reserves the right to suspend performance of any work or Deliverable under this Agreement if Client is past-due on any invoiced amounts.
2. Shipping; Defective Deliverables.
a. Unless otherwise agreed by Advent in writing, the Deliverables shall be delivered F.O.B. destination to the site identified by Client. Advent shall invoice Client, and Client shall pay, for all charges related to packaging, shipping, handling and insurance, as applicable.
b. Unless otherwise agreed in writing by Advent, Client shall have one (1) week after delivery of any Deliverable to inspect such Deliverable and notify Advent of any defects upon delivery. If Client notifies Advent within such one (1) week period of the delivery of a defective Deliverable, then Client may return to Advent, at Advent’s expense, such defective Deliverable and Advent shall, as its sole and exclusive liability and Client’s sole and exclusive remedy for delivery of defective Deliverable, either repair or replace the defective Deliverable with a conforming Deliverable or issue a credit equal to the full price of the defective Deliverable, in each case as determined by Advent in its sole discretion.
3. Term and Termination.
a. The term of this Agreement shall commence as of the last date signed (the “Effective Date”) and shall continue through the completion of the provision of all completed Deliverables to Client (“Term”) unless earlier terminated as provided herein.
b. Client, in its sole discretion may terminate this Agreement at any time after a 60 day notice to Advent and will have no further obligations or liabilities, provided however, Client agrees to compensate Advent for work performed and Deliverables received up to and including the date of termination, as well as any and all nonrefundable or noncancellable third party commitments or purchases which have been incurred in the course of this Agreement prior to the effective date of such termination.
c. Further, either party may terminate this Agreement immediately upon written notice to the other party if the other party breaches this Agreement and does not make best attempts to cure the breach within ten (10) business days or if either party voluntarily or involuntarily becomes subject to any proceeding under any domestic or foreign bankruptcy or insolvency law, is dissolved or liquidated or takes any corporate action for such purpose, makes a general assignment for the benefit of creditors, or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
4. Confidentiality. Advent and Client agree that each party may obtain (directly or indirectly) certain proprietary information, verbal or written, not generally known to the public, including without limitation, information about the other party’s and its affiliate’s business operations and strategies, goods and services, customers, pricing, marketing, security information, engineering/architectural drawings and descriptions of building layouts, emergency recovery or response plans, the specific terms and conditions of this Agreement and other sensitive and proprietary information (“Confidential Information”). Neither party shall at any time disclose, permit the disclosure of, release, disseminate, or transfer, whether orally or by any other means, any part of the Confidential Information to any other person or entity, whether corporate, governmental, or individual, without the express written consent of the other party except as required by applicable law in connection with legal process. If either party is required to disclose any terms or conditions of this Agreement or any Confidential Information in accordance with the preceding sentence, then such party shall provide immediate notice to the other party and shall, if possible, give such party the opportunity to determine a way to maintain such information in confidence while still allowing the disclosing party to comply with applicable law.
5. Insurance (see attached). Advent acknowledges that provision of the services is contingent upon Advent’s participation in Client’s vendor insurance program(s), with the insurance requirements set forth in this Agreement and Exhibit A, or as otherwise agreed to by the parties in writing by amendment for an alternate property or location. During the Term, Advent agrees to maintain insurance as is reasonable for a business of its size and operations. Advent shall ensure that such policies shall include the additional insured and waiver of subrogation clause in favor of Client.
6. Indemnification.
a. Advent agrees to defend, indemnify and hold harmless Client, and its directors, officers, subsidiaries, affiliates, owners, joint venturers, partners, employees, agents and representatives from and against any and all claims, demands, obligations, causes of action (including pre-lawsuit court orders), losses, lawsuits and all other damages, liabilities (determined by verdict, judgment or good faith settlement of a claim), fines, judgments and reasonable costs and expenses associated therewith (including the payment of reasonable attorney fees and disbursements) of defending a claim (whether such claim is valid or found invalid) of liability (“Losses”) to the extent such Losses arise out of: (1) the negligent performance of services or actions taken by Advent, or those acting under it, in connection with this Agreement; (2) any material breach by Advent of any representation and warranty herein; (3) actual or alleged patent, copyright, or trademark infringements of any IP Rights (as defined herein), misappropriation of trade secrets, in each case related to or involving this Agreement, the Deliverables, the services, or Advent (except to the extent such infringement results from information, materials, logos or instructions of Client). Notwithstanding the foregoing, Advent shall have no indemnity obligation to the extent the Losses result from the negligent acts or omissions of Client.
b. Client agrees to defend, indemnify and hold harmless Advent and its directors, officers, affiliates, owners, joint venturers, partners, employees, agents and representatives from and against any and all Losses to the extent such Losses arise out of: (1) any material breach by Client of any representation and warranty herein; (2) the failure of Client, or those acting under it, to comply with the terms and conditions of this Agreement, (3) any personal injury (including death), or property damage arising out of Client’s negligence or unsafe conditions in Client’s facilities where Client will perform the work, (4) Client’s negligence or use of the work or Deliverables in a manner that is inconsistent with Advent instructions or otherwise contemplated by this Agreement, or (5) actual or alleged patent, copyright or trademark infringements, misappropriation of trade secrets, in each case to the extent attributable to Client’s information, materials, logos or instructions.
c. Within thirty (30) calendar days after its receipt of notice of the commencement of any third-party legal proceeding, a party seeking indemnification in accordance with this Section (the “Indemnitee”) will notify the other party (the “Indemnifying Party”). The Indemnifying Party is relieved from its indemnity obligation to the extent the Indemnifying Party has suffered actual prejudice resulting from a failure to notify in accordance with the time period set forth herein. The Indemnifying Party will assume, at its own expense, the defense of any such third-party legal proceedings with reputable counsel reasonably acceptable to the Indemnitee and is entitled to settle any such third-party legal proceedings with the Indemnifying Party’s written consent, not to be unreasonably withheld, conditioned or delayed. The Indemnitee, at the Indemnifying Party’s cost, will reasonably cooperate with the Indemnifying Party in the defense of such action as the Indemnifying Party reasonably requests. The Indemnifying Party will pay any and all damages assessed against the Indemnitee, subject to any limitations of liability set forth in this Agreement.
d. The obligations to defend and indemnify contained in this section shall survive the expiration or termination of this Agreement.
7. Representations and Warranties.
a. Each party represents, warrants and covenants that: (a) it has the full right and legal authority to enter into and fully perform this Agreement; (b) it can and will perform under this Agreement in accordance with its terms without violating the rights of any other person or entity; (c) each person signing this Agreement on behalf of a party hereto represents and warrants that he or she has full authority to do so and that this Agreement is binding upon the entity on whose behalf he or she is acting; (d) it will perform its contractual obligations set forth herein; (e) its performance of this Agreement does not violate or conflict with any agreement to which it is a party; (f) there is no pending or threatened litigation that would have a material adverse impact on its performance under this Agreement; (g) it shall comply with all applicable laws; and (h) it has and will maintains all government licenses, permits or other authorizations necessary to conduct its business as well as the requisite insurance policies and coverages set forth in this Agreement. Advent further warrants that all work provided pursuant to this Agreement shall be conducted in (i) a good, workmanlike manner and free from defects, (ii) in conformity with the standards of care employed by leading venders in the services industry for projects similar to the kind and scope of the Project, and (iii) compliance with all applicable laws. Advent’s sole and exclusive liability and Client’s sole and exclusive remedy for nonconforming work shall be, in Advent’s discretion, either the repair or reperformance of such affected work.
b. Client represents and warrants that it has the right and authority to permit Advent to enter into any premises where work is to be performed or Deliverables are to be provided and Client shall not permit or cause any interruption or disruption in the performance of any work or provision of any Deliverables by Advent. Client shall ensure that Advent has unobstructed access to any facilities or premises as necessary in order for Advent to perform its obligations under this Agreement. Advent shall in no event be liable for any delays due to Client’s failure to comply with the terms of this Section or otherwise due to Client’s failure to cooperate or perform any of its duties under this Agreement. Client further warrants that it has full right, title and interest in and to the Client Marks and Client Background IP (as defined below) (or, as applicable any and all necessary third party consents with respect thereto) and that Advent’s use of such Client Marks as permitted by this Agreement shall not violate or infringe upon the intellectual or other property rights of any third party. Client warrants that the premises or facilities where work is to be performed or Deliverables to be provided are fit and suitable for such work and Deliverables and shall be prepped and ready for such work and Deliverables and, throughout the Term, maintained in a safe condition.
c. EXCEPT AS EXPRESSLY SET FORTH HEREIN, ADVENT MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, WHETHER ARISING OUT OF COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, AND ALL SUCH OTHER REPRESENTATIONS AND WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. FOR CLARITY, ADVENT MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING OUTCOME, FUNCTIONALITY OR EFFECTIVENESS OF THE PROJECT OR DELIVERABLES, NOR DOES ADVENT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE WORK OR DELIVERABLES WILL BE ERROR FREE. IN ADDITION TO THE FOREGOING DISCLAIMER, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, ADVENT MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY PRODUCTS (INCLUDING SOFTWARE PRODUCTS) MANUFACTURED OR SUPPLIED BY A THIRD PARTY THAT ARE CONTAINED IN, INCORPORATED INTO, ATTACHED TO, OR PACKAGED TOGETHER WITH, THE DELIVERABLES, INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
8. Intellectual Property.
a. Client is, and shall be, the sole and exclusive owner of all right, title, and interest in and to the work performed and Deliverables provided as a direct result of this Agreement and , including all intellectual property rights therein. Advent agrees, and will cause its personnel to agree, that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. § 101, such Deliverables are hereby deemed a “work made for hire” for Client. To the extent that any of the Deliverables do not constitute a “work made for hire”, Advent agrees to and does hereby irrevocably assign, and shall cause its personnel to irrevocably assign to Client, in each case without additional consideration, all right, title, and interest throughout the world in and to the Deliverables, including all intellectual property rights therein. Advent shall cause its personnel to irrevocably waive, to the extent permitted by applicable Law, any and all claims such personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables.
b. Upon Client’s request and at Client’s expense, Advent shall promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist Client to prosecute, register, perfect, or record its rights in or to any Deliverables.
c. Advent shall own any and all rights, title and interest in and to its pre-existing creative ideas, designs, developments, inventions, works of authorship, work results, technology, materials, documents, or know-how (“Advent Background IP”) in the Deliverables, (including any improvements or modifications thereto or derivations thereof), as well as any and all intellectual property created or developed by or on behalf of Advent to the extent not created as a direct result of the work performed or Deliverables provided under this Agreement. To the extent Advent includes any of its Background IP or other IP in any Deliverable or work, Advent hereby grants Client an irrevocable, perpetual, fully paid-up, royalty-free, worldwide license to use, display, reproduce, and otherwise exploit the Advent Background IP or other IP to the extent incorporated in, or combined with the Deliverable, and which is necessary for Client’s own internal use of the Deliverables. For the avoidance of doubt, the foregoing does not permit Client to use or otherwise exploit any Advent Background IP or other Advent IP on its own, separate and apart from its use of the Deliverables.
d. Advent provided software product(s) are subject to a separate annual software licensing agreement (LINK).
e. To the extent Client contributes any of its pre-existing technology, software, materials, documents or know-how (“Client Background IP”) or any of Client’s trademarks, logos, service marks or branding (“Client Marks”) with respect to the work, instructions, specifications or Deliverables, Client hereby grants to Advent an irrevocable, fully paid-up, royalty-free, worldwide license to use, copy, display, reproduce and create derivative works with respect to the Client Background IP and Client Marks, solely as necessary to perform the work and provide the Deliverables contemplated by this Agreement or otherwise to exercise any right or remedy under this Agreement.
f. If any Deliverables or parts thereof become, or are likely to become, the subject of an IP Rights infringement, violation or misappropriation, then Advent shall (except to the extent the Deliverables include or are based upon Client Background IP or other property), at its own expense, promptly take the following actions in the listed order of priority: (a) secure the rights necessary to continue using the Deliverables and any parts thereof; or (b) replace or modify such Deliverables or parts thereof to make them non-infringing, such that the replacement or modification will not degrade the performance or quality of the Deliverables.
9. Force Majeure. If performance of all or any part of this Agreement (except for payment obligations) is prevented, restricted or interfered with by an act of God, inclement weather, public emergency, war, military mobilization, riot, terrorist attack (foreign or domestic) or threatened terror attack (foreign or domestic), epidemic, pandemic, quarantine, enactment of federal, state or local laws, rules and regulations (including voluntary compliance therewith), inability to obtain necessary equipment, materials, utilities, labor or transportation, or a cause beyond the reasonable control of either party (each a “Force Majeure Event”), the party whose performance is impacted, upon giving prompt notice to the other party, shall be excused from its obligations under this Agreement for the duration of the Force Majeure Event. The suspension of performance shall not be longer than is reasonably required by the Force Majeure Event and, for the avoidance of doubt, the other party shall likewise be excused from its obligations under this Agreement for the duration of the Force Majeure Event.
10. Governing Law; Limitation of Liability.
a. Each party agrees it will comply with all statutes, ordinances and regulations of all federal, state, county and municipal or local governments, and of any and all of the departments or bureaus thereof applicable to the carrying on of its business. This Agreement is subject to and shall be construed in accordance with the laws of the State of Tennessee without regard to its choice or conflict of law provisions. Venue for any legal action or proceeding shall be exclusively within the federal and state courts located in Davidson County, Tennessee, and each party irrevocably consents to the exclusive jurisdiction of such courts.
b. If Advent commences any legal proceeding in order to recover any unpaid fees which are required by this Agreement, Client shall be responsible for Advent’s reasonable attorneys’ fees and court costs.
c. Notwithstanding anything herein to the contrary and to the maximum extent permitted by applicable law, Advent’s liability for damages shall be limited to the lesser of (i) the total amount to be paid by Client with respect to the Project or (ii) one million dollars ($1,000,000). Under no circumstances shall Advent be liable for any special, indirect, consequential, incidental, exemplary, speculative or punitive damages, including loss of profits, use, revenue, productivity, goodwill, sales, income, savings, data or business opportunity, regardless of the nature of the claim and whether or not such damages were foreseeable or all other remedies have failed of their essential purpose.
11. Miscellaneous
a. The relationship between the parties hereto is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
b. This Agreement, together with all other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. There are no other terms and conditions applicable to the work or Deliverables and any different or conflicting terms or conditions proposed by Client in any work order, purchase order or other communication, are hereby expressly rejected and Advent’s performance of the work and provision of the Deliverables is governed by these Terms and Conditions. THIS AGREEMENT EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS OF THIS OFFER AND ADVENT HEREBY OBJECTS TO ANY DIFFERENT OR ADDITIONAL TERMS CONTAINED IN ANY WRITING OR COMMUNICATION OF CLIENT.
c. Neither party may assign or transfer any or all of its rights or obligations under this Agreement without the prior written consent of the other party; provided that Advent may assign this Agreement, or any part thereof, in connection with a reorganization, merger or sale of all or substantially all of its assets or business. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void.
d. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
e. The expiration or termination of this Agreement will not affect the terms of this Agreement that expressly provide that they will survive expiration or termination or which out of necessity must survive expiration or termination.
f. Any amendment, modification, waiver, or discharge of this Agreement is only valid if it is in writing and signed by an authorized representative of the party against which such amendment, modification, waiver, or discharge is sought to be enforced and specifically references this Section. No waiver of any breach, or the failure of a party to enforce any of the terms of the Agreement, will affect such party’s right to enforce the terms of this Agreement. Any modification, amendment, or waiver of any provision of this Agreement that does not conform to the requirements set forth in this Section is null and void.
12. Publicity and Usage Rights:
a. Client grants Advent the right to publicize the work undertaken for Client (at any stage during the work), which may include, but is not limited to, “case studies”, project descriptions, outcomes, and visuals (including photographs and video walk-throughs) (collectively, the “Project Information”). Project Information may include details such as Project objectives, processes, results and Client’s name and logo. This publicity may be disseminated through various channels in Advent discretion, including but not limited to Advent website, social media channels, and other marketing and promotional materials, as well as be included in internal documentation and pre-sales and sales materials. Advent agrees to use the Project Information in a manner that is accurate and does not misrepresent the Client’s involvement or the results of the project.