Application Support Services
AGREEMENT AND TERMS AND CONDITIONS APPLY TO THE SERVICES
OFFERED BY M.S. DESIGN. UNDER ITS SOFTWARE APPLICATION
SUPPORT (“PROGRAM”). THE PROGRAM IS DESIGNED TO PROVIDE
FEE-BASED TECHNICAL AND TUTORIAL SUPPORT FOR USERS OF THE
DEFINED LIST OF SOFTWARE APPLICATIONS (“APPLICATIONS”). THE
PROGRAM OFFERS TECHNICAL AND TUTORIAL SOFTWARE APPLICATION
SUPPORT IN ADDITION TO THOSE SERVICES PROVIDED UNDER THE
LIMITED WARRANTY AND TERMS AND CONDITIONS AGREEMENT THAT WAS
SHIPPED WITH THE PRODUCT. THIS DOCUMENT CONTAINS A DISPUTE
RESOLUTION CLAUSE. PLEASE SEE PARAGRAPH 8 BELOW.
Technical support will be provided on request and not by
hours due to the amount of time we are out of the office.
Support is limited to the list of software applications
described in the program literature to be made available by
M.S. Design and provided on a “best efforts” basis. Support
does not include any third party hardware or software not
included on the list. Time or number of incidents does not
1. AGREEMENT AND
AUTHORIZATION TO PERFORM SERVICES.
purchase of and participation in the above-described Program
shall constitute Customer’s agreement to be bound by the
terms and conditions of this Agreement and the Program and
shall authorize M.S. Design to perform services in
accordance with this Agreement and the Program. The scope of
work performed under this Agreement may only be modified
with the express written approval of M.S. Design. M.S.
Design undertakes to use commercially reasonable efforts to
resolve the Customer’s issues. However, M.S. Design does not
guarantee that it will be able to resolve every issue. Any
warranty services provided as part of this Program shall be
in accordance with the Product Limited Warranty except as
otherwise provided herein.
2. LOST OR
ALTERED COMPUTER FILES.
Customer is responsible for backing up all files and
proprietary and confidential information on the Product and
for maintaining a procedure external to the hardware
products for the reconstruction of lost or altered files,
data or programs. M.S. DESIGN SHALL NOT BE LIABLE FOR
LOST OR ALTERED FILES, DATA OR PROGRAMS, EVEN IF CAUSED BY
THE NEGLIGENCE OF M.S. DESIGN OR ITS AGENTS OR EMPLOYEES.
DIAGNOSTIC AND REPAIR SERVICES ARE PROVIDED WITHOUT ANY
OBLIGATION OF CONFIDENTIALITY OR NONDISCLOSURE ON THE PART
OF M.S. DESIGN, ITS EMPLOYEES OR AGENTS. CUSTOMER SHALL
DELETE FROM THE PRODUCT ANY FILE OR DATA CONSIDERED TO BE
PRIVATE, CONFIDENTIAL OR PROPRIETARY.
WARRANTY; DISCLAIMER OF WARRANTIES.
warrants only that the services to be performed under this
Agreement shall be performed in a professional and
workmanlike manner. M.S. DESIGN DOES NOT WARRANT SOFTWARE OR
ANY PRODUCTS PROVIDED BY AN INDEPENDENT THIRD PARTY
SUPPLIER. Customer must refer to the warranty provided by
such independent third party supplier. The limited
warranties made hereunder are not transferable. ALL OTHER
EXPRESS WARRANTIES ARE HEREBY DISCLAIMED. ANY IMPLIED
WARRANTIES ARE LIMITED TO THE TERM OF THIS AGREEMENT. NO
INFORMATION OR ADVICE (WRITTEN OR ORAL) PROVIDED TO CUSTOMER
BY M.S. DESIGN, ITS AGENTS OR EMPLOYEES, EXCEPT AS PROVIDED
HEREIN, WILL CREATE A WARRANTY BY M.S. DESIGN, OR INCREASE
THE SCOPE OF THIS AGREEMENT. THIS AGREEMENT GIVES THE
CUSTOMER SPECIFIC LEGAL RIGHTS, AND THE CUSTOMER MAY ALSO
HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE. SOME STATES
DO NOT ALLOW LIMITATIONS ON HOW LONG IMPLIED WARRANTIES
LAST, SO THE ABOVE LIMITATION MAY NOT APPLY.
4. LIMITATION OF
LIABILITY. EXCEPT WHERE SUCH EXCLUSION IS CONTRARY TO PUBLIC
POLICY, IN NO EVENT SHALL M.S. DESIGN, ITS EMPLOYEES, AGENTS
OR CONTRACTORS, BE LIABLE UNDER THIS AGREEMENT FOR ANY
INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR INCIDENTAL
DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED
PROFITS OR REVENUE, ECONOMIC LOSS, LOSS OF DATA, LOSS OF USE
OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL,
COST OF SUBSTITUTE OR REPLACEMENT EQUIPMENT, FACILITIES OR
SERVICES, DOWN TIME, CUSTOMER TIME, THE CLAIMS OF THIRD
PARTIES, AND INJURY TO PROPERTY, REGARDLESS OF THE NATURE OF
THE CLAIM, INCLUDING BUT NOT LIMITED TO, BREACH OF WARRANTY,
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR STRICT
LIABILITY, AND EVEN IF M.S. DESIGN HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSS OR DAMAGE. SOME STATES DO NOT ALLOW
THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL
DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY.
IF ANY PORTION OF THIS SECTION IS HELD INVALID OR
UNENFORCEABLE, ANY LIABILITY OF M.S. DESIGN, AND ITS
SUPPLIERS AND SERVICE PROVIDERS UNDER THIS AGREEMENT IS
EXPRESSLY LIMITED TO THE FEES THE CUSTOMER HAS PAID FOR THE
SERVICE GIVING RISE TO THE CLAIM. THE CUSTOMER’S SOLE REMEDY
AGAINST M.S. DESIGN AND ITS SUPPLIERS AND SERVICE PROVIDERS
IN ANY DISPUTE UNDER THIS AGREEMENT SHALL BE TO SEEK
RECOVERY OF THE AMOUNTS THE CUSTOMER HAS PAID, UPON THE
PAYMENT OF WHICH M.S. DESIGN AND ITS SUPPLIERS AND SERVICE
PROVIDERS SHALL BE RELEASED FROM AND DISCHARGED OF ALL
FURTHER OBLIGATIONS AND LIABILITY TO THE CUSTOMER.
otherwise provided herein, this Agreement contains the
entire understanding of the parties and supersedes all
previous oral and written agreements with regard to the
subject hereof. No term or condition of any purchase order
issued by the Customer inconsistent with this Agreement will
be binding upon M.S. Design. M.S. Design personnel do not
have the authority to alter the terms and conditions of this
6. GOVERNING LAW.
Agreement is governed by the laws of the State of Illinois,
without giving effect to its conflicts of law rules.
You agree that any Dispute between You and M.S. Design will
be resolved exclusively and finally by arbitration
administered by the National Arbitration Forum (NAF) and
conducted under its rules, except as otherwise provided
below. The arbitration will be conducted before a single
arbitrator, and will be limited solely to the Dispute
between You and M.S. Design. The arbitration shall be held
at any reasonable location near your place of business by
submission of documents, by telephone, online or in person.
Any decision rendered in such arbitration proceedings will
be final and binding on each of the parties, and judgment
may be entered thereon in any court of competent
jurisdiction. Should either party bring a Dispute in a forum
other than NAF, the arbitrator may award the other party its
reasonable costs and expenses, including attorneys' fees,
incurred in staying or dismissing such other proceedings or
in otherwise enforcing compliance with this dispute
resolution provision. You understand that You would have
had a right to litigate disputes through a court, and that
You have expressly and knowingly waived that right and
agreed to resolve any Disputes through binding arbitration.
This arbitration agreement is made pursuant to a
transaction involving interstate commerce, and shall be
governed by the Federal Arbitration Act, 9 U.S.C. Section 1,
et seq. For the purposes of this section, the term
“Dispute” means any dispute, controversy, or claim arising
out of or relating to (i) this Agreement, its
interpretation, or the breach, termination, applicability or
validity thereof, or (ii) the purchase or use of any service
hereunder from M.S. Design; the term “M.S. Design” means
M.S. Design, its subsidiaries, affiliates, directors,
officers, employees, beneficiaries, agents or assigns; the
term “You” means You, the original purchaser, your agents,
beneficiaries, or heirs. Information may be obtained from
the NAF on line at www.arb-forum.com, by calling
800-474-2371 or writing to P.O. Box 50191, Minneapolis, MN,
If any provision contained in this Agreement is or becomes
invalid, illegal, or unenforceable in whole or in part, such
invalidity, illegality, or unenforceability shall not affect
the remaining provisions and portions of this Agreement.
A. CUSTOMER MAY
NOT ASSIGN THIS AGREEMENT OR ANY OF THE CUSTOMER RIGHTS
HEREUNDER WITHOUT THE EXPRESS WRITTEN CONSENT OF M.S.
PROVIDED BY M.S. DESIGN UNDER THIS AGREEMENT MAY BE
PROVIDED, AT M.S. DESIGN’S OPTION, BY AN INDEPENDENT THIRD
PARTY SERVICE PROVIDER. ANY SUCH SERVICE PROVIDED BY AN
INDEPENDENT THIRD PARTY SERVICE PROVIDER ARE NOT WARRANTED
BY M.S. DESIGN. PLEASE REFER TO THE WARRANTY PROVIDED BY
SUCH INDEPENDENT THIRD PARTY SERVICE PROVIDER.
C. IN THE EVENT
M.S. DESIGN HIRES AN ATTORNEY TO COLLECT ANY SUMS OWED BY
CUSTOMER UNDER THIS AGREEMENT OR TO OTHERWISE ENFORCE ITS
RIGHTS HEREUNDER, CUSTOMER AGREES TO PAY THE REASONABLE FEES
OF SUCH ATTORNEY AND ANY OTHER REASONABLE COSTS AND EXPENSES
INCURRED BY M.S. DESIGN IN ENFORCING ITS RIGHTS UNDER THIS
D. ANY SUM NOT
PAID BY CUSTOMER WHEN DUE AND OWING IS SUBJECT TO INTEREST
AT A RATE EQUAL TO THE LESSER OF 1½% PER MONTH OR THE
MAXIMUM RATE ALLOWED BY LAW.