The following terms and conditions govern the sale of "The
Business Builder's Help Desk™" (otherwise referred to as "TBBHD") and Management
Information Systems Solutions & Initiatives (hereinafter
referred to as "MISSI") Products and Services.
"Products" means hardware, Software, documentation, accessories, supplies, parts,
and upgrades that are determined by MISSI/TBBHD to be available from MISSI/TBBHD upon receipt
of Customer's order.
"Custom Products" means Products modified, designed or manufactured to meet Customer's
specific Requirements regardless of the original source of any such product or
"License Fee" means the fee or fees designated by MISSI/TBBHD for Use of Software.
Different License Fees may apply to particular Software if more than one Software
License is available for that Software.
"Software" means one or more programs capable of operating on a controller, processor
or other hardware Product ("Device"), and related documentation. Software is
either a separate Product, included with another Product ("Bundled Software"),
or fixed in a Device and not removable in normal operation ("Firmware").
"Software License" means the Software license grant and general license terms
set forth herein. Each Software License has a corresponding License Fee.
"Support" means hardware maintenance and repair, Software updates and maintenance;
training and other standard support services provided by MISSI/TBBHD.
"Custom Support" means any agreed non-standard Support, including consulting
and custom project services.
"Use" means storing, loading, installing, executing, or displaying Software on
"Specifications" means a document that provides information specific to a Product.
"Attachments" means attachments that describe or otherwise apply to the sale
or license of the Product or Support. If there are any conflicts between the
various documents, those of an Attachment prevail over those of this Agreement.
Customer accepts and is bound by the terms of the Agreement and the applicable
Attachments by accepting delivery of the Product or Service.
The amount payable for Product or Service typically will
be based upon one or more of the following types of
One-time and/or recurring charges, time and materials
charges, and/or contract fixed price.
Additional charges may apply under certain circumstances
such as when special handling and/or travel and subsistence
related expenses may be incurred in the course of completing
a contract to order.
Whenever additional charges apply to a contract, MISSI/TBBHD
will inform Customer in advance.
Prices are valid for the period quoted by MISSI/TBBHD for the
applicable purchase agreement ordering period, whichever
Product prices for an order remain valid for ninety (90)
days from the original order date unless otherwise quoted
In teh event of changes to existing orders where that
change results in the extention of the previously agreed
delivery date beyond the above referenced validity periods
will be deemed to automatically become new orders at
prices in effect when MISSI/TBBHD receives such changes to
Support prices, except for Custom and prepaid Support,
may be changed by MISSI/TBBHD upon sixty (60) days written
notice. An increase applies on the first day of the invoice
or charging period on or after the effective date specified
by MISSI/TBBHD in the notice.
Prices are exclusive of, and Customer will pay applicable
sales, use, consumption, goods and service, value added
or like taxes wherever applicable under the relevant
jurisdiction unless Customer has provided MISSI/TBBHD with
an appropriate exemption certificate for the delivery
All orders are subject to acceptance by MISSI/TBBHD. Product
orders must specify Delivery within ninety (90) days
from order date, unless otherwise agreed or quoted
MISSI/TBBHD will make reasonable efforts to meet Customer's
Delivery requirements. If MISSI/TBBHD is unable to meet
Customer's Delivery requirements, alternative arrangements
may be agreed. In the absence of such agreement, Customer's
sole remedy is to cancel the order.
5. Shipping, Risk of Loss or Damage, and Title:
MISSI/TBBHD will ship according to MISSI/TBBHD's standard commercial
practice, and risk of loss or damage and title will
pass from MISSI/TBBHD to Customer upon delivery to the MISSI/TBBHD
designated carrier for shipment to Customer or its
designated location. Thereafter, Customer assumes
the risk of loss or damage and title will pass to
Customer. Shipping and handling are additional unless
otherwise expressly indicated at time of sale. If
Customer requested special packing, or shipping instructions
are agreed to by MISSI/TBBHD, charges will be billed separately
to Customer. Customer must notify MISSI/TBBHD within ten
(10) days of the date of the invoice if any part of
the purchase is incorrect or damaged.
6. Installation and Acceptance:
Product installation information is available with Products,
on quotations or upon request. Installation by MISSI/TBBHD,
when included in the purchase price, is complete when
the Product passes MISSI/TBBHD's standard installation and
For Products without installation included in the purchase
price, acceptance by Customer occurs upon shipment from
MISSI/TBBHD. For Products with installation included in the
purchase price, acceptance by Customer occurs upon completion
of installation by MISSI/TBBHD. If customer schedules or delays
installation by MISSI/TBBHD more than thirty (30) days after
delivery, Customer acceptance of the Product(s) will
occur on the 31st day after Delivery. [need to review
for revenue recognition. Intent is to bundle pricing
for standard installation and unbundled for custom installation]
Payment terms are subject to MISSI/TBBHD credit approval. Unless
otherwise stated, payment is due thirty (30) days
from MISSI/TBBHD's invoice date. MISSI/TBBHD may invoice parts
of an order separately. Invoices for contractual support
services and maintenance will be issued in advance
of the Support period. MISSI/TBBHD may discontinue performance
if Customer fails to pay any sum due, or fails to
perform under this or any other MISSI/TBBHD agreement if,
after ten(10) days written notice, the failure has
not been cured. Amounts delinquent beyond the payment
due date are subject to a 1.5% per month late fee
prorated for the number of days past due.
MISSI/TBBHD warrants that for a period of one (1) year from
the date of MISSI/TBBHD's shipment of Hardware, including any related integrally installed Software if any such is supplied in direct combination therewith, to Customer,
its Hardware, and any such aforementioned integral Software, to be free from defects in material and
workmanship and conforms to agreed Specifications. Some newly
manufactured MISSI/TBBHD Products may contain, and MISSI/TBBHD
Support may use or replace with, remanufactured parts which are equivalent
to new in performance. The warranty period for Hardware
is a specified, fixed period commencing on its date
of Delivery, or the date of installation if installed
by MISSI/TBBHD. MISSI/TBBHD warrants for a period of ninety (90)
days from the date of MISSI/TBBHD's shipment of Software
to Customer, that Software will not fail to execute
its programming instructions due to defects in materials
and workmanship when properly installed and used on
the Device designated by MISSI/TBBHD. MISSI/TBBHD further warrants
that MISSI/TBBHD owned standard Software will substantially
conform to Specifications. MISSI/TBBHD does not warrant
that Software will operate in hardware and software
combinations selected by Customer, or meet requirements
specified by Customer. MISSI/TBBHD does not warrant that
the operation of Products will be uninterrupted or
error free. If MISSI/TBBHD receives notice of defects or
non-conformance to hardware Specifications, or substantial
non-conformance to MISSI/TBBHD owned standard Software Specifications
during the warranty period, MISSI/TBBHD will, at its option,
repair or replace the affected Products. The warranties
provided herein will apply only to those Products
and Support which are branded by MISSI/TBBHD with a MISSI/TBBHD
trademark ("MISSI/TBBHD Branded"). What about MISSI/TBBHD Technologies
Software products? MISSI/TBBHD will resell those products.
MISSI/TBBHD does not warrant any third party Products or
Support even if included with other MISSI/TBBHD Branded
Products or Support. Furthermore, MISSI/TBBHD provides all
such third party Products and Support AS IS. However,
the original manufacturers or suppliers may provide
their own warranties as specified in the documentation
accompanying such third party Products and Support.
The above warranties do not apply to defects resulting
1) Improper or inadequate maintenance by Customer;
2) Customer or third party supplied software;
3) Unauthorized modification;
4) Improper use or operation outside of the Specifications
for the Product;
5) Abuse, negligence, accident, loss, or damage in transit;
6) Improper site preparation;
7) Unauthorized maintenance or repair.
THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY,
WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. TO
THE EXTENT PERMITTED BY LAW, MISSI/TBBHD SPECIFICALLY DISCLAIMS
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT.
Customer may order Support from MISSI's or TBBHS's then current
Support offering respectively per the production origin of the issue under warranty. Some Support (and related Products)
may not be available in all countries. Orders for
Support are subject to the terms of the Support Exhibit
or quotation in effect on the date of order. To be
eligible for Support, Products must be at current
specified revision levels and, in MISSI/TBBHD's reasonable
opinion, in good operating condition. Support does
not cover any damage or failure caused by: 1) Use
of non-MISSI media, supplies, and other products or
2) Site conditions that do not conform to MISSI/TBBHD's
site specifications or 3) Neglect, improper use, fire
or water damage, electrical disturbances, transportation
by Customer, work or 4) Modification by people other
than MISSI employees or by subcontractors, or by any
other causes beyond MISSI/TBBHD's control.
Customer may delete Products under Support or cancel
Support orders upon thirty (30) days written notice unless
otherwise agreed in a Support agreement.
MISSI may cancel Support orders or delete Products no
longer included in MISSI/TBBHD's Support offering upon sixty
(60) days written notice unless otherwise agreed in a
In return for the License Fee, MISSI/TBBHD respectively depending upon the origin of the subject matter, grants Customer
a non-exclusive license to Use the object code version
of the Software listed in Customer's order in conformance
1) The terms set forth herein; and
2) Use restrictions and authorizations for the Software
specified by MISSI/TBBHD in its quotation, invoice or terms
that accompany the Software; and
3) MISSI/TBBHD's third party suppliers' terms that accompany
Unless otherwise specified, in return for the applicable
License Fee, MISSI/TBBHD grants Customer a license to Use one
copy of the Software on one Device at any one time. Unless
otherwise specified, all Software Licenses will be perpetual
Software is owned and copyrighted by MISSI/TBBHD or by third
party suppliers. Customer's Software License confers
no title or ownership and is not a sale of any rights
in the Software. Third party suppliers may protect their
rights in the Software in the event of any infringement.
Unless otherwise permitted by MISSI/TBBHD, Customer may only
make copies or adaptations of the Software for archival
purposes or when copying or adaptation is an essential
step in the authorized Use of the Software on a backup
Device, provided that copies and adaptations are used
in no other manner and provided further that the Use
on the backup Device is discontinued when the original
or replacement Device becomes operable.
Customer must reproduce all copyright notices in or on
the original Software on all permitted copies or adaptations.
Customer may not copy the Software onto any public or
Bundled Software or Firmware provided to Customer may
only be used when operating the associated Device in
configurations as sold or subsequently upgraded by MISSI/TBBHD.
Customer may transfer Firmware only upon transfer of
the associated Device.
Updates, upgrades, or other enhancements are available
under MISSI/TBBHD Support agreements. MISSI/TBBHD reserves the right
to require additional licenses and fees for Use of the
Software on upgraded Devices.
Customer will not modify, disassemble, or decompile the
Software without MISSI/TBBHD's prior written consent. Where
Customer has other rights under statute, Customer will
provide MISSI/TBBHD with reasonably detailed information regarding
any intended disassembly or decompilation. Customer will
not decrypt the Software unless necessary for legitimate
use of the Software and then only after receiving written
agreement from MISSI/TBBHD.
Customer's Software License is transferable subject to
MISSI/TBBHD's prior written authorization and payment to MISSI/TBBHD
of any applicable fee(s). Upon transfer of the Software
License, Customer will immediately deliver all copies
of the Software to the transferee. The transferee must
agree in writing to the terms of Customer's Software
License. All Software License terms will be binding on
involuntary transferees, notice of which is hereby given.
Customer's Software License will automatically terminate
MISSI/TBBHD may terminate Customer's or any transferee's or
sublicensee's Software License upon notice for failure
to comply with any applicable Software License terms.
Immediately upon termination, the Software and all copies
of the Software will be destroyed or returned to MISSI/TBBHD.
Copies of the Software that are merged into adaptations,
except for individual pieces of data in Customer's or
transferee's or sublicensee's database, will be removed
and destroyed or returned to MISSI/TBBHD. With MISSI/TBBHD's written
consent, one copy of the Software may be retained subsequent
to termination for archival purposes.
11. Intellectual Property Rights:
MISSI/TBBHD will defend or settle any claim against Customer
that MISSI/TBBHD Branded Products or Support (excluding
Custom Products and Custom Support), delivered under
these MISSI/TBBHD Terms and Conditions of Sale and Service,
that infringe a patent or copyright, trade secret
or trademark in the country where Products are used,
sold or receive Support, provided Customer: 1) promptly
notifies MISSI/TBBHD in writing; and 2) cooperates with
MISSI/TBBHD in, and grants MISSI/TBBHD sole control of the defense
If a claim is made or appears likely to be made, customer
agrees to permit MISSI/TBBHD to enable Customer to continue
to use, modify or replace the Product with one that is
functionally equivalent. If MISSI/TBBHD determines that none
of these alternatives is reasonably available, MISSI/TBBHD
will refund Customer's purchase price upon return of
the Products at the Product's then net book value.
MISSI/TBBHD has no obligation for any claim of infringement
1) MISSI/TBBHD's compliance with Customer's designs, specifications
2) MISSI/TBBHD's use of technical information or technology
provided by Customer;
3) Product modifications by Customer or a third party;
4) Product use prohibited by Specifications or related
application notes; or
5) Product use with products that are not MISSI/TBBHD Branded.
These terms state MISSI/TBBHD's entire liability for claims
of intellectual property infringement.
12. Limitations of Liability and Remedies:
To the extend that MISSI/TBBHD is held legally liable to a
Customer, MISSI/TBBHD's total liability is limited to no
more than 1) payments referred to in the Intellectual
Property Rights section above;
2) damages for bodily injury, direct damages to tangible
property of up to $1 million or,
3) the amount of any other actual direct damages up to
the lesser of $1 million or the charges for the Product
or Service that is the subject of the Claim.
Notwithstanding the Section 11 above, in no event will
MISSI/TBBHD or its affiliates, subcontractors or suppliers
be liable for any of the following: Incidental, special
or consequential damages including downtime costs or
1) The Parties hereby agree that they may do business
electronically, including contract formation, order
placement and acceptance. Any orders placed by Customer
and accepted by MISSI/TBBHD on any MISSI/TBBHD website or MISSI/TBBHD/Customer
extranet site will create fully enforceable obligations
that will be subject to the terms hereof. Such orders
and acceptances will be deemed for all purposes to
a) Business records originated and maintained in documentary
b) A "writing" or "in writing,"
d) An "original" when printed from electronic files or
The Parties further agree not to contest the validity
or enforceability of such transactions under the provisions
of any applicable law relating to whether certain agreements
are to be in writing or signed by the Party to be bound
thereby and will be admissible if introduced as evidence
on paper in any judicial, arbitration, mediation, or
administrative proceeding to the same extent and under
the same conditions as other business records originated
and maintained in documentary form. In addition, the
Parties agree that transactions may be conducted through
Electronic Data Interchange or other electronic methods,
as agreed by the Parties.
Customer and MISSI/TBBHD will adopt commercially reasonable
security measures to limit access to passwords and to
limit access to unauthorized use of the sites or issuance
of messages caused by the failure of its security measures.
2) MISSI/TBBHD will not be liable for performance delays or
for non-performance, due to causes beyond its reasonable
3) If either party becomes insolvent, is unable to pay
its debts when due, files for bankruptcy, is the subject
of involuntary bankruptcy, has a receiver appointed,
or has its assets assigned, the other party may cancel
any unfulfilled obligations.
4) Customer may not assign any rights or obligations
hereunder without prior written consent from MISSI/TBBHD.
5) Customer who exports, re-exports or imports Products,
technology or technical data purchased hereunder, assumes
responsibility for complying with applicable laws and
regulations, and for obtaining required export and import
authorizations. MISSI/TBBHD may suspend performance if Customer
is in violation of applicable regulations.
6) Disputes arising in connection with these MISSI/TBBHD Terms
and Conditions of Sale and Service will be governed by
the laws of the country and locality in which MISSI/TBBHD accepts
7) Provisions herein which by their nature extend beyond
the termination of any sale or license of Products or
Support will remain in effect until fulfilled.
8) If any term or provision herein is determined to be
illegal or unenforceable, the validity or enforceability
of the remainder of the terms or provisions herein will
remain in full force and effect.
9) These MISSI/TBBHD Terms and Conditions of Sale and Service
and any Attachments constitute the entire agreement between
MISSI/TBBHD and Customer, and supersede any previous communications,
representations or agreements between the parties, whether
oral or written, regarding transactions hereunder. Customer's
additional or different terms and conditions will not
10) Customer's purchase or license of Products and Support
will constitute Customer's acceptance of these MISSI/TBBHD
Terms and Conditions of Sale and Service, which may not
be changed subsequently except by agreed amendment signed
by an authorized representative of each party.