STANDARD TERMS AND CONDITIONS OF SALE


Any training quoted is delivered via the Web. If on-site training is desired, customer is responsible for travel, lodging and meals. Sample data and sample transactions may be requested from time to time to validate mappings -- customer acknowledges that delay in fulfilling such requests will delay the project deliverables. All labor is estimated. Customer acknowledges that unforeseen changes, hardware, operating system or ERP software issues may arise that may impact the actual labor incurred. BSI agrees to keep Customer informed as to labor used and needed to complete project. Server and network configuration are not included in the above and issue arising from these areas are above and beyond. By signing this order below, you (the “Signatory”) represent and warrant to BSI that: (1) you are duly authorized to execute and otherwise enter into this order on behalf of Customer; and (2) this order shall be deemed a binding purchase commitment by Customer from BSI with respect to the licenses, products and services described above. All orders are subject to acceptance by BSI.

This Agreement sets forth the terms and conditions under which the Customer identified above ("Customer") will license the Solutions identified in BSI-provided registrations.  This Agreement will become effective as of the date set forth above (the “Effective Date”) upon its endorsement by BSI following its execution by the Customer and continues until terminated as hereinafter provided.
 
1.    DEFINITIONS
    1.1        Solution means each computer software product in object code form proprietary to BSI or its licensors identified in a registration file provided by BSI to Customer, all documentation, printed materials and registration files for such product ("Documentation"), Cloud Managed Services provided by BSI, all Updates or Upgrades provided to Customer, and all related materials which are furnished to Customer under this Agreement.
    1.2        A Correction is a patch or other remedial measure in machine readable object code form prepared by BSI to bypass or remedy an error (as determined by BSI) in a Program.  An Update is the machine readable object code form of a Correction or a subsequent release of a Program which BSI determines at its sole discretion (regarding the content and timing of release) to make available without additional charge to its customers purchasing maintenance.   An Update is designated by a change in batch number. An Upgrade is an Update designated by a change in the release number (either whole number or number to the left of the decimal point) or product name, which BSI determines at its sole discretion (regarding the content and timing of release) to make available without additional charge to its customers purchasing maintenance.
    1.3        Registration means copying an BSI-supplied registration file (containing information identifying Customer, the Program(s) and the applicable Concurrent User Limit, Named User Limit or other license limit) onto a single Eligible Computer System on which the Programs have been installed.  Completing the registration process causes the Programs (or applicable license limit) on that Eligible Computer System to become "Registered".
    1.4        An Eligible Computer System means any single-user computer system or single multi-user computer system or network supported by BSI.
    1.5        The Concurrent User Limit is the maximum number of concurrent logins Registered for the Programs on an Eligible Computer System.  The Named User Limit is the maximum number of specific employees or contractors which may be designated by Customer to use the Programs Registered for the Programs on an Eligible Computer System, regardless of whether such individual may be actively using the Programs at any given time.  If a Named User Limit is not named in this agreement, then a limit to the number of users on the BSI Solution will not apply.
2.        LICENSE
    2.1        Subject to the terms of this Agreement, BSI grants to Customer a non-exclusive, non-transferable license to use the Solutions after they have been Registered, as follows:
        (a)        To use the Programs solely for Customer's internal information management and internal data processing purposes and solely on a single Eligible Computer System owned or controlled by Customer, subject to the Concurrent User Limit, Named User Limit or other license limit Registered for the Programs.  Customer may not Install the Programs on more than one server if the Eligible Computer System is a multi-user computer system or network.  Customer may not use the Programs for third-party training, commercial time-sharing, rental or service bureau use;
        (b)        To use the Documentation provided with the Programs in support of Customer’s authorized use of the Programs; and
        (c)        To make a reasonable number of backup copies of the Programs, provided Customer keeps the copies in its possession.
    2.2        Customer acknowledges that the Programs may have included within them logic or computer code designed to restrict usage of the Programs to that permitted under this Agreement (“Security Code”).  Customer shall not take any action designed to circumvent any such protection scheme, and will permit BSI to audit Customer’s compliance with this Section and Section 2.1.  In the event of any malfunction of the Security Code, BSI will, as Customer's sole remedy for any such malfunction, provide a corrected registration file or services to correct such code.
    2.3     Customer shall not translate, adapt, modify, decompile or reverse assemble the Programs (including specifically any Security Code), nor shall Customer analyze or otherwise examine any such software for reverse engineering purposes.    
    2.4 BSI or its suppliers shall retain all title, copyright and other proprietary rights in or related to the Programs and in all copies of all or any portion thereof.  Customer does not acquire any rights in the Programs other than those specified in this Agreement.
3.    LIMITED WARRANTIES AND DISCLAIMERS
    3.1        BSI warrants directly to Customer that, at the time of delivery and for a period of ninety (90) days thereafter (the "Warranty Period"), each unmodified Program will operate in substantial conformity with applicable Documentation when operated in a BSI-approved environment as specified in such Documentation.
    3.2        For any breach of the warranties set forth in Section 3.1, as Customer’s sole and exclusive remedy and BSI’s sole and exclusive liability, and so long as Customer has provided written notice of breach of warranty to BSI no later than ten (10) days after the end of the Warranty Period, BSI will provide a Correction for errors in such software which BSI can reproduce that cause breach of the warranty, or if BSI is unable to make Programs operate as warranted, Customer shall be entitled to recover the fees paid by Customer with respect to the non-conforming Program(s).
    3.3        EXCEPT AS EXPRESSLY STATED IN SECTION 3.1 ABOVE, THERE ARE NO WARRANTIES OR CONDITIONS (EXPRESS OR IMPLIED, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE) FOR THE PROGRAMS OR OTHER SERVICES OR GOODS FURNISHED HEREUNDER OR IN CONNECTION HEREWITH.  BSI, AND THEIR DIRECT AND INDIRECT SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR ANY PURPOSE, PARTICULAR, SPECIFIC OR OTHERWISE. BSI does not warrant that (i) the functions contained in the Programs will meet Customer's requirements or that the operation of the Programs will be uninterrupted or error-free or (ii) the Programs will appear precisely as described in the Documentation or that all errors will be corrected.  BSI is not responsible for problems caused by changes in the operating characteristics of hardware or operating systems which are made after the release of the Programs nor for problems in the interaction of the Programs with non- BSI-approved software.  BSI shall in no event be responsible for the consequences of changes or modifications to the Programs made by anyone other than BSI.

4.            LIMITATION OF LIABILITY
UNLESS FURTHER LIMITED ELSEWHERE IN THIS AGREEMENT, THE AGGREGATE LIABILITY FOR DAMAGES OF BSI AND THEIR DIRECT AND INDIRECT SUPPLIERS FOR ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE OR TORT, WILL NOT EXCEED THE TOTAL FEES AND CHARGES PAID BY CUSTOMER TO BSI  FOR THE PROGRAM(S) GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE CUSTOMER'S CAUSE OF ACTION ACCRUED.  IN NO EVENT SHALL BSI OR THEIR DIRECT OR INDIRECT SUPPLIERS BE LIABLE FOR (A) ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF BSI HAS BEEN ADVISED OF THE POSSIBILITY THEREOF INCLUDING BUT NOT LIMITED TO LOSS OF DATA OR INFORMATION OF ANY KIND, LOST PROFITS, LOST BUSINESS REVENUE OR FAILURE TO REALIZE EXPECTED SAVINGS AND REGARDLESS OF WHETHER ANY CLAIM FOR SUCH RECOVERY IS BASED UPON THEORIES OF CONTRACT, NEGLIGENCE OR TORT (INCLUDING STRICT LIABILITY), OR (B) ANY CLAIM AGAINST CUSTOMER BY ANY OTHER PERSON. CUSTOMER HEREBY WAIVES, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, ANY AND ALL CLAIMS FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.  BSI, its direct and indirect suppliers, including but not limited to BSI, are intended beneficiaries of this Section.
5.        CONFIDENTIAL INFORMATION
    5.1  Customer shall hold all portions of Programs in confidence for BSI and shall not use the Programs except as provided in this Agreement.   Customer further agrees that it shall not make any disclosure of any or all of the Programs to anyone, except to employees and contractors of Customer to whom such disclosure is necessary to the use for which rights are granted hereunder, provided that any such consultants first agree in writing to be bound by the provisions of Sections 2 and 5 of this Agreement.  
    5.2  Since unauthorized disclosure, use or transfer of the Programs may diminish substantially the value to BSI of the copyright, proprietary rights and/or trade secrets interests that are subject of this Agreement, if Customer breaches or threatens to breach any of its obligations with respect to limited use (or, where applicable, confidentiality) of the Programs, BSI shall be entitled to equitable relief to protect its interest therein, including, but not limited to injunctive relief as well as money damages.
6.        TERMINATION
    6.1        In the event Customer neglects or fails to perform or observe any material term or obligation hereunder and fails to remedy such neglect or failure within thirty (30) days following notice thereof from BSI, BSI may terminate this Agreement by written notice to Customer.  Notwithstanding anything to the contrary, termination of this Agreement, however occurring, shall neither relieve Customer of any accrued obligations to pay money to Reseller nor entitle Customer to any refund of fees for Program licenses.  The parties’ rights and obligations under Sections 3, 4, 5, 6.2, 7 and 8 shall survive termination of this Agreement. Customer acknowledges that non-payment of fees and payment made contrary to the agreed upon payment terms constitutes failure to perform under this agreement.
    6.2        Upon any termination of this Agreement, Customer shall immediately discontinue use of the Program(s), shall purge the Program(s) from its computer systems, storage media and other files, and shall destroy or return to BSI the Program(s) and all copies thereof.  Upon request, Customer shall certify in writing that Customer has complied with the provisions of this Section 6.2.
7.        MISCELLANEOUS PROVISIONS
    7.1        All notices required to be given under this Agreement shall be given in writing and shall be deemed to have been given when (i) mailed by prepaid registered or certified mail, return receipt requested, (ii) sent by commercial courier with written verification of the receipt, or (iii) sent by email, with a copy sent at the same time by registered or certified mail to each party at its addresses set forth herein or at such other address as a party may designate to the others by notice as required hereby.
    7.2        A party shall be excused for failures and delays in performance of respective obligations caused by catastrophes or other occurrences beyond the control and without the fault of such party.
    7.3        Without the prior written consent of BSI, which will not be unreasonably withheld, Customer may not assign or transfer (by operation of law, in bankruptcy or otherwise) all or any part of its rights or obligations under this Agreement, and any purported assignment or transfer without such consent shall be void.
    7.4        Customer agrees to comply fully with all relevant export laws and regulations of the United States to assure that neither the Programs nor any direct product thereof are (1) exported, directly or indirectly, in violation of the such laws; or (2) are intended to be used for any purposes prohibited by the such export laws.
    7.5        If any provision of this Agreement shall be found to be illegal or unenforceable this Agreement shall remain in full force and effect and such provision shall be deemed to be deleted.  Except as expressly provided in this Agreement, any failure or delay by a party in exercising any right or remedy will not constitute a waiver.
    7.6        This Agreement constitutes the final, complete and exclusive statement of the Agreement between the parties in respect of the subject matter hereof and supersedes all prior and contemporaneous written and oral negotiations, understandings and agreements between the parties in respect to the subject matter hereof, including specifically any Customer purchase order or other ordering document.  This Agreement shall also supersede the terms of any shrink-wrap or break-the-seal license agreement included in any Program package or “click-to-agree” license embedded in a Program. No other writings may become a part of this Agreement, nor may it be modified, unless signed by duly authorized representatives of BSI  and Customer.  No other act, document, usage or custom shall be deemed to amend or modify this Agreement.
    7.7        Customer acknowledges that BSI is an intended beneficiary of certain provisions of this Agreement, including, without limitation, those which address the protection of proprietary rights in the Programs and the scope of use of the Programs.  
    7.8       BSI may from time to time offer to provide maintenance and support for Programs.  All such maintenance and support will be provided, under the terms of a separate agreement between BSI and Customer and BSI’s then current maintenance and support plan terms.
8.        LAW AND JURISDICTION
    8.1        This Agreement shall be deemed to have been executed and performed in and shall be governed by, construed, interpreted, and the rights of the parties determined in accordance with the local laws of the state of Mo. 
    8.2        CUSTOMER HEREBY CONSENTS AND AGREES THAT JURISDICTION AND VENUE FOR ANY CLAIM OR CAUSE OF ACTION BROUGHT BY OR AGAINST BSI ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL BE PROPERLY AND EXCLUSIVELY IN THE STATE OR FEDERAL COURTS OF MO IN THE COUNTY OF RAY, AND EXPRESSLY WAIVE ANY AND ALL RIGHTS WHICH THEY MAY HAVE OR WHICH MAY HEREAFTER ARISE TO CONTEST THE PROPRIETY OF SUCH CHOICE OF JURISDICTION AND VENUE. FURTHER, CUSTOMER WAIVES ALL DEFENSES OF LACK OF PERSONAL JURISDICTION AND FORUM NON CONVENIENS.