Applicability. These terms of service (these “Terms”) are the only terms that govern the sale of the goods (the “Goods”) and/or provision of services (the “Services”) by Management Information Systems, Company (“MIS”) to the client (“Client”) specified on the applicable quote, sales order or other purchase order document (each, a “Sales Order”). The accompanying Sales Order and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Sales Order, these Terms shall govern, unless the Sales Order expressly states that the terms and conditions of the Sales Order shall control. These Terms prevail over any of Client’s general terms and conditions regardless of whether or when Client has submitted its request for proposal, order, or such terms. Provision of Goods and Services to Client does not constitute acceptance of any of Client’s terms and conditions and does not serve to modify or amend these Terms. For the avoidance of doubt, all Sales Orders not accepted by Client are subject to expiration at the applicable manufacturer’s discretion.
Delivery of Goods and Performance of Services. MIS shall deliver the Goods within a reasonable time after receipt of Client’s Sales Order and in accordance with the terms of the Sales Order. MIS shall not be liable for any delays, loss, or damage in transit. MIS shall deliver the Goods to the delivery point specified in the Sales Order using MIS’ standard methods or packaging and shipping such Goods. MIS reserves the right to charge Client for all shipping, freight and other transportation costs, whether or not such costs were included in any quotes provided by MIS. Title and risk of loss pass to Client upon delivery of the Goods to the delivery point specified in the Sales Order. MIS shall provide the Services to Client as described in the Sales Order in accordance with these Terms. MIS shall use reasonable efforts to meet any performance dates specified in the Sales Order or its corresponding confirmation, and any such dates shall be estimates only.
Obligations of the Parties.
Client shall: (i) cooperate with MIS in all matters relating to the Goods and Services and provide such access to Client’s premises, and such office accommodation and other facilities as may reasonably be requested by MIS, for the purposes of performing the Services; (ii) respond promptly to any MIS request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for MIS to perform the Services in accordance with the requirements of this Agreement; (iii) provide such Client materials or information as MIS may reasonably request to carry out the Services in a timely manner and ensure that such Client materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start. Actions and expenses necessary to provide MIS access, including but not limited to, building structure alteration, repair, or movement/replacement of equipment, are the sole responsibility of Client. If MIS’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, MIS shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
Neither during the term of this Agreement, nor for the period of one (1) year after its termination, will Client knowingly solicit or hire as an employee or engage as a contractor, whether part-time or full-time, any MIS Personnel. Client stipulates and admits that hiring or engagement of any MIS Personnel is likely to cause irreparable damage to MIS that would be difficult to impossible to ascertain or prove and for which the amount of damages would be difficult or impossible to prove. Accordingly, Client agrees that any breach of this Section 3(b) shall obligate Client to pay to MIS on demand, as liquidated damages, an amount equal to 100% of that MIS Personnel’s most recent annual salary. Client again agrees that this provision is fair and not excessive. “MIS Personnel” for the purposes of this Agreement shall mean all personnel employed or otherwise utilized by MIS, including without limitation the personnel of MIS’ affiliates and approved sub-vendors, who provide the Services.
MIS reserves the right to place materials on Client’s premises that are to be used in providing the Services. Client hereby acknowledges that such materials remain the property of MIS and shall not take any action that jeopardizes MIS’ rights of ownership in such materials. If MIS materials placed on Client property are damaged, destroyed or stolen due to the intentional acts, negligence, or failure to act of Client, its employees, agents, or invitees, Client shall reimburse MIS for such loss in an amount equal to the full replacement value of such materials. MIS shall remove any MIS materials placed on Client premises within a reasonable time, not to exceed thirty (30) days, after the cancellation or completion of the Services.
Fees; Payment Terms. Client shall purchase the Goods and Services from MIS at the prices set forth in the Sales Order. Client will be responsible for payment of any additional amounts needed to pay any shipping, freight, transportation or other taxes, however designated or levied, applicable to any Goods and Services provided hereunder exclusive, however, of taxes based on the net income of MIS. Client agrees to reimburse MIS for all reasonable travel and out-of-pocket expenses incurred by MIS in connection with the performance of the Services. Fees will be billed by MIS to Client after shipment of the Goods or prior to the completion of the Services, or as may otherwise be provided for in the Sales Order. Payment terms shall be net 30 after receipt of MIS’ invoice. Payment shall be made in United States Dollars. Payments not received when due shall be subject to a late payment charge of one and one-half percent (1 1/2%), or the maximum charge allowed by law. Client shall reimburse MIS for any costs incurred in collecting past due sums or any other amounts owed by Client for any reason whatsoever, including but not limited to court costs and attorneys’ fees. MIS reserves the right to pass through any processing fees incurred as a result of credit card payments by Client.
Intellectual Property. As used in this Agreement, the term “Work Product” shall mean all reports, drawings, models, specifications, notes, analysis, memoranda, designs, computer software, documentation, Inventions (as defined below), discoveries, works of authorship, deliverables and other materials and work products created or made by or on behalf of MIS in the performance of its obligations under this Agreement. MIS shall retain ownership of any idea, design, concept, technique, process, invention, discovery, or improvement, whether or not patentable, made by MIS during the term of this Agreement (“Invention”). To the extent any Work Products are not Inventions or works of authorship prepared for Client under this Agreement, MIS hereby grants to Client a perpetual, irrevocable, non-exclusive, worldwide, royalty-free license to use such Work Products as set forth herein or in the Sales Order. Notwithstanding anything contained in this Section 5 to the contrary, MIS makes no claims on Client’s trade secrets; business, technical, manufacturing, marketing, sales, financial, and other confidential information; and know-how (hereinafter collectively, “Client Data”). Client hereby grants to MIS a royalty-free right and license to the Client Data solely to perform the Services.
Confidential Information. All non-public, confidential or proprietary information of MIS, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to clients, pricing, and marketing (collectively, “Confidential Information”), disclosed by MIS to Client, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the sale of Goods and/or provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Client without the prior written consent of MIS. Confidential Information does not include information that is: (i) in the public domain; (ii) known to Client at the time of disclosure; or (iii) rightfully obtained by Client on a non-confidential basis from a third party. Client agrees to use the Confidential Information only to make use of the Services and any corresponding deliverables. MIS shall be entitled to injunctive relief for any violation of this Section.
Limited Warranty.
Subject to the limitations set forth below, for a period of sixty (60) days from the date of delivery of the Goods and/or completion of the Services, MIS warrants only that the Goods and the Services will conform to the requirements of the Sales Order and the written specifications contained or referenced therein. MIS will use reasonable efforts to protect the Services against viruses, worms, Trojan horses, and other harmful elements designed to disrupt the orderly operation of or impair the integrity of the Services. MIS hereby assigns, and represents that it has the authority to assign, to Client all manufacturer’s warranties, express or implied, representations, service agreements, and other indemnities, if any, applicable to any products sold to Client by MIS. Notwithstanding the foregoing, nothing contained in a Sales Order related to anti-virus or ransomware mitigation services shall be interpreted to be a warranty against any virus or ransomware and Client acknowledges as such. Unless otherwise specified in the Sales Order, to the extent that Client’s systems become infected or otherwise compromised by any virus or ransomware, any MIS services requested by Client to mitigate or remove any such virus or ransomware shall be subject to MIS’ then-prevailing rates for any such services.
FOR THE LIMITED WARRANTY IN SECTION 7(a) TO BE VALID, CLIENT MUST PAY THE FULL AMOUNT OF FEES DUE FOR ANY AND ALL GOODS AND SERVICES. THE LIMITED WARRANTY IN SECTION 7(a) IS THE ONLY WARRANTY MADE BY MIS AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANITES REGARDING NON-INFRINGEMENT, MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, MIS DOES NOT WARRANT THAT THE GOODS AND/OR SERVICES PROVIDED HEREUNDER WILL MEET CLIENT'S REQUIREMENTS OR WILL OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY CLIENT, OR THAT OPERATION OF THE GOODS AND/OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DATA STORED BY THE GOODS AND/OR SERVICES WILL NOT BE LOST. ALL THIRD PARTY SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. THIS WARRANTY COVERS ONLY THOSE SERVICES PROVIDED BY MIS TO THE CLIENT. IN NO EVENT SHALL MIS BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR DAMAGES IN EXCESS OF THE ORIGINAL CHARGES PAID BY THE CLIENT FOR THE GOODS AND/OR SERVICES. THIS WARRANTY MAY NOT BE ALTERED OR EXTENDED FOR ANY PURPOSE UNLESS OTHERWISE AGREED BY THE PARTIES IN WRITING.
Client’s sole and exclusive remedy, and MIS’ entire liability, for any breach of the limited warranty in Section 7(a) shall be to use commercially reasonable efforts to provide Client with an error-correction or work-around which corrects the reported non-conformity, or if MIS reasonably determines such remedies to be impracticable within a reasonable period of time, to terminate the Services and refund a pro rata portion of fees for the Goods and/or Services paid to the extent in excess of amounts attributable to work already performed.
Indemnification; Limitation of Liability.
Client will indemnify, defend and hold harmless MIS, its subsidiaries, officers, directors, agents, employees, successors, and assigns from and against all losses, costs, damages, expenses (including reasonable attorneys’ fees), suits, claims, demands, or other liabilities, directly or indirectly (collectively, “Losses”) arising out of or relating to: (i) any breach of any representation, warranty or covenant of this Agreement by Client; (ii) any negligent or intentional acts or omissions or willful misconduct of Client; or (iii) any failure of Client to comply with or observe any applicable law.
MIS shall indemnify, defend and hold harmless Client, its subsidiaries, officers, directors, agents, employees, successors, and assigns from and against all Losses arising out of or relating to: (i) any breach of any representation, warranty or covenant of this Agreement by MIS; (ii) any negligent or intentional acts or omissions or willful misconduct of MIS; or (iii) any failure of MIS to comply with or observe any applicable law.
IN NO EVENT SHALL MIS BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT MIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, ANY SALES ORDER OR ANY OTHER DOCUMENT SIGNED BETWEEN THE PARTIES REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, MIS’ LIABILITY FOR LOSSES, IF ANY, WHETHER IN AN ACTION IN CONTRACT OR BASED ON WARRANTY, IN LAW OR EQUITY SHALL NOT EXCEED THE LESSER OF $50,000 OR THE TOTAL AMOUNT OF FEES PAID TO MIS BY CLIENT UNDER A PARTICULAR SOW DURING THE PRECEDING THREE (3) MONTHS FROM THE EVENT CAUSING ANY LOSSES.
Term; Termination. This Agreement shall commence on the date of the Sales Order and continue for the term as specified in the Sales Order, unless earlier terminated as provided herein. In addition to any remedies that may be provided under this Agreement, MIS may terminate this Agreement with immediate effect upon written notice to Client, if Client: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
Waiver. No waiver by MIS of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by MIS. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Force Majeure. MIS shall not be liable or responsible to Client, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond MIS’ control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (i) acts of God; (ii) flood, fire, earthquake, epidemic, pandemic, quarantine, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or action (including the imposition of or changes to tariffs, duties, quotas, or trade barriers); (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (viii) other similar events beyond the control of MIS.
Assignment. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of MIS. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
Relationship of the Parties. The relationship between the parties 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.
Governing Law; Venue. The laws of the State of Indiana (without giving effect to conflicts of law principles thereunder) govern all matters arising out of or relating to this Agreement and the Services furnished hereunder. The Parties irrevocably and unconditionally submit to the exclusive jurisdiction of the United States District Court of the Southern District of Indiana and/or any state court situated in Marion County, Indiana, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby or thereby, or for recognition or enforcement of any judgment. The Parties irrevocably and unconditionally agree that all claims in respect of any such action or proceeding may be heard and determined in such Indiana state court or, to the extent permitted by applicable law, such federal court.
Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Sales Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (i) upon receipt of the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidentiality, Governing Law, Venue, and Survival.
Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.