Managed Computer Services, LLC
dba HBBTech
Terms and Conditions

These Terms and Conditions shall apply to all services proposed or provided by Managed Computer Services, LLC and/or HBBTech, which are delivered entirely or partially to the Client.

  1. DEFINITIONS

The following definitions are applicable:

“MCS” means Managed Computer Services, LLC

“HBB” means HBBTech

“MCS-HBB” means Managed Computer Services, LLC and/or HBBTech, combined or separated services.

“Client” means the organization or company with whom the Agreement is entered into;

“Confidential Information” means any information related to the Engagement disclosed by the Client to the Consultant and by the Consultant to the Client, respectively, either directly or indirectly. Confidential Information may include, by way of example but without limitation, products, specifications, formulae, equipment, formulas, models, employee interviews, records, quality monitoring schemes/programs, training materials, business strategies, customer lists, know-how, drawings, pricing information, inventions, ideas, and other information, or its potential use, that is owned by or in possession of the Client and/or the Consultant, respectively;.

“Consultant” means; MCS-HBB;

“Agreement” means the Agreement between the Client and the Consultant which defines the scope of the Engagement and the services to be rendered by the Consultant, as well as the fee schedule for said services. More specifically, the Agreement shall consist of these Terms and Conditions and any other documents (or parts thereof) specified in the Scope of Work;

“the Engagement” means any agreement, in whatever form, reached between the Consultant and the Client pursuant to which the Consultant agrees to render services to the Client in exchange for a fee plus costs;

“Force Majeure” means any cause beyond the reasonable control of the affected party, including, but not limited to, any act of God, war, riots, acts of the public enemy, fires, strikes, labor disputes, accidents, or any act in consequence of compliance with any order of any government or governmental authority;

“Project” means the services to be provided by the Consultant to the Client as specified in the Scope of Work;

“Scope of Work” means the document (i) setting out the services to be provided by the Consultant to the Client and (ii) listing any documents and the like to be provided by the Client to the Consultant such that the Consultant may perform the Project;

“Subcontractor” means either an affiliate or subsidiary of the Consultant, or an independent Contractor, respectively, which is qualified to perform the applicable services as contemplated by the Engagement and the Agreement, and has been Contracted by the Consultant accordingly, as evidenced by an agreement in writing.

  1. GENERAL

2.1 These Terms and Conditions govern the provision of all services from or on behalf of the Consultant to the Client and apply to all legal relationships between the Consultant and the Client.

2.2 These Terms and Conditions supersede any and all prior oral and written quotations, communications, agreements and understandings of the parties and shall apply in preference to and supersede any and all terms and conditions of any order placed by the Client and any other terms and conditions submitted by the Client. Failure of the Consultant to object to terms and conditions set by the Client shall in no event be construed as an acceptance of any terms and conditions of the Client. Neither the Consultant’s commencement of performance nor the Consultant’s delivery of services shall be deemed or constituted as acceptance of any of the Client’s terms and conditions. Any communication or conduct of the Client which confirms an agreement for the provision of services by the Consultant, as well as acceptance by the Client of any provision of services from the Consultant shall constitute an unqualified acceptance by the Client of these Terms and Conditions.

2.3 By contracting on the basis of these Terms and Conditions, the Client agrees to the applicability thereof in respect of future agreements between itself and the Consultant, even if this is not expressly stated.

  1. PERFORMANCE OF THE PROJECT

3.1 The Consultant shall determine the manner in which and the person by whom the Engagement will be carried out, taking into account, as far as is feasible, the reasonable requests expressed by the Client.

3.2 The Consultant shall complete the Project with reasonable skill, care and diligence in accordance with the Agreement.

3.3 The Client hereby accepts that the time schedule allocated for the performance of an Engagement may be subject to change in case of amendment to the Engagement and/or the services to be provided thereunder after conclusion of the Engagement.

3.4 In case of any change of circumstances under which the Engagement is to be performed which cannot be attributed to the Consultant, the Consultant may make any such amendments to the Engagement as it deems necessary to adhere to the agreed quality standard and specifications. Any costs arising from or related to this change of circumstances will be fully borne by the client.

3.5 The Consultant may, at its discretion and, where possible, in consultation with the Client, replace the person or persons charged with performing the Engagement, if and in so far as the Consultant believes that such replacement would benefit the performance of the Engagement.

3.6 The Consultant shall provide the Client with such reports of his work on the Project at such intervals and in such form as the Client may from time to time require. The Client has the right to notify the Consultant that it wishes to modify its requirements in relation to the Project. Such modifications shall not enter into effect until the parties have agreed on the consequences thereof such as to the Agreement fee and the completion date of the Project.

  1. SUBCONTRACTORS The Consultant shall be free to involve Subcontractors, availing of specific expertise, in the performance of the Project, provided that the Consultant shall have these third parties enter into confidentiality obligations similar to the confidentiality obligations applicable to the Consultant. If requested by the Client, the Consultant shall identify these Subcontractors, specifying in each case their specific expertise.
  2. CLIENT’S OBLIGATION

5.1 The Client shall at all times duly make available to the Consultant all information and documents that the Consultant deems necessary to be able to carry out the Engagement correctly, in the specified form and manner. Also, the Client shall provide all cooperation required for the proper and timely performance of the Engagement.

5.2 The Client guarantees that Consultant’s employees can at all times work under safe conditions, in accordance with the relevant health and safety regulations and environmental rules and shall indemnify and hold harmless the Consultant against all loss, expense or damage arising from or relating to this guaranty by the Client.

5.3 The Client shall duly inform the Consultant of any facts and circumstances that may be relevant in connection with the execution of the Engagement.

5.4 Furthermore, the Client shall guarantee the correctness, completeness and reliability of any information provided to the Consultant.

  1. FEES AND EXPENSES (Also see Section 16)

6.1 The Client shall pay to the Consultant fees at the rate specified in the Scope of Work or as indicated on the current website(s).

6.2 Unless otherwise stated in the Agreement, the Consultant shall be entitled to be reimbursed by the Client for all traveling and lodging expenses reasonably and properly incurred by him in the performance of his duties hereunder subject to production of such evidence thereof as the Client may reasonably require.

6.3 Unless otherwise stated in the Agreement, payment will be made within ten (10) days of receipt of an invoice, submitted monthly.

6.4 Value Added Tax, where applicable, shall be shown separately on all invoices.

6.5 Any extra costs arising from or related to any delays in the completion of the Engagement stemming from the failure of the Client to duly make available to the Consultant the requested information and documentation, shall be fully borne by the Client.

  1. INTELLECTUAL PROPERTY

All results generated by the Consultant in the Project, including reports, other documents and materials, shall become the property of the Consultant.

  1. CONFIDENTIALITY

8.1 The Consultant shall keep secret and not disclose and shall procure that his employees keep secret and not disclose any Confidential Information obtained by him during the performance of the Project. The foregoing shall not apply to information which (i) is or becomes part of the public domain without fault on the part of the Consultant; (ii) was already known by the Consultant, other than under an obligation of confidentiality, at the time of disclosure by the Client; (iii) is lawfully acquired by the Consultant from a third party on a non-confidential basis; or (iv) the Consultant is required to disclose pursuant to any law, lawful governmental, quasi-governmental or judicial order.

8.2 Except with the prior written permission of the Consultant, the Client shall not publish or otherwise make available the contents of proposals, reports, presentations, memos, or other communications by the Consultant, unless these have been provided with the intention of providing third parties with the information set out therein. Furthermore, the Client shall not disclose any of the Consultant’s methods and work strategies without the Consultant’s written permission.

8.3 The provisions of this Article 8 shall apply during the term of the Agreement and for a period of five (5) years thereafter.

  1. WARRANTIES, LIABILITY AND INDEMNIFICATION

9.1 The Consultant, and any person put forward by the Consultant to perform the Project, shall not be liable if the services provided or the results generated by him in the Project are not absolutely correct, nor does the Consultant, or any person put forward by the Consultant to perform the Project, warrant, either expressed or implied, that the performance by him of the Project will not infringe upon intellectual property rights of any third party.

9.2 The Consultant, nor any person put forward by the Consultant to perform the Project, shall not be responsible for any loss, destruction or damage of whatsoever nature (including injury or death) incurred by the Client, its employees or third parties, resulting from the use of the Project results by the Client, except to the extent that the same can be shown to be due to gross negligence or willful misconduct on the part of the Consultant or his employees. The Client shall indemnify the Consultant accordingly.

9.3 The Client shall not be responsible for any loss, destruction or damage of whatsoever nature (including injury or death) incurred by the Consultant, its employees or third parties, related to the performance by the Consultant of the Project, except to the extent that the same can be shown to be due to gross negligence or willful misconduct on the part of the Client or its employees. The Consultant shall indemnify the Client accordingly.

9.4 Should a party be deemed liable to the other party, by way of indemnity or by reason of breach of Agreement or otherwise, the Consultant’s liability shall in aggregate not exceed the price for the Project. In any event, neither party shall be liable to the other party for any consequential, indirect, special, incidental or exemplary damages of any nature whatsoever that may be suffered by the other party.

  1. TERM AND TERMINATION

10.1 Any times or dates set forth in the Agreement for provision or completion by the Consultant of the services under the Project are estimates only and shall never be considered of the essence. Furthermore, the parties hereby acknowledge that the time schedule set out for the performance of the Engagement may change during the course of said performance. In no event shall the Consultant be liable for any delay in providing these services.

10.2 Either party may terminate the Agreement by notice in writing forthwith in the event the other party: (i) is in default with respect to any material term or condition to be undertaken by it in accordance with the Engagement and / or the provisions of the Agreement, and such default continues unremedied for a period of thirty (30) days after written notice thereof by the aggrieved party to the defaulting party; (ii) is affected by a Force Majeure which cannot be removed, overcome or abated within three (3) months; or (iii) shall make any assignment for the benefit of creditors or shall file any petition in connection thereto, shall file a voluntary petition in bankruptcy, be adjudicated bankrupt or insolvent, if any receiver is appointed for its business or property, or if any trustee in bankruptcy or insolvency shall be appointed for that party (and is not dismissed within sixty (60) days after appointment).

10.3 If the Client issues a termination notice, the Client shall be obliged to pay the Consultant a compensation equal to the agreed fees apportioned to the services already rendered by the Consultant, plus any additional costs incurred by the Consultant as a result of said early termination.

10.4 In case the Consultant cannot be reasonably expected to complete the works due to unforeseen circumstances, the Consultant may unilaterally terminate the Agreement and the Engagement. The Client shall be liable for payment of an amount corresponding to the fees due for services already performed, while being entitled to receive the (preliminary) results of the services already performed, without the Client being entitled to derive any rights therefrom.

  1. INDEPENDANCY

The Consultant shall perform the Agreement as an independent Contractor and shall not be the servant or agent of the Client.

  1. NOTICES

Any notice given under or pursuant to the Agreement shall be given in writing and shall be given by mail, registered mail or by facsimile transmission to the other party at the addresses mentioned in the Scope of Work, or to such other address as a party may by notice to the other have substituted therefore. Any such notice shall be deemed to have been received on the fifth (5th) business day following the date of its mailing if sent by (registered) mail.

  1. OBSERVANCE OF LEGAL REQUIREMENTS

13.1 The Consultant shall carry out his obligations under the Agreement in a manner that conforms to relevant legal requirements.

13.2 Without prejudice to the generality of Article 13.1, in carrying out his obligations under the Agreement the Consultant shall comply with relevant requirements contained in or having effect under current legislation relating to health, safety and welfare at work.

  1. GOVERNING LAW AND JURISDICTION

These Terms & Conditions shall be governed by and construed in accordance with the laws of the United States of America and the State of Missouri without regard to conflict of law principles or law.

14.1 It is agreed that any dispute hereunder will be subject to the exclusive jurisdiction of the federal courts in the United States District Court for the Eastern District of Missouri or the state courts in St. Charles County, Missouri for any claim of forum non conveniens being waived.

14.2 All right to trial by jury in any action, proceeding, or counterclaim arising out of or in connection with these Terms are irrevocably waived.

  1. FORCE MAJEURE

Neither party shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with a Force Majeure event. Upon the occurrence of any Force Majeure event, the party suffering thereby shall promptly inform the other party by written notice thereof specifying the cause of the Force Majeure event and how it will affect its performance.

  1. PRICES, PAYMENTS AND TAXES

By purchasing any products or services from Managed Computer Services and/or HBBTech (“MCS-HBB”) you agree to be bound by these “Terms and Conditions” and all other applicable terms, policies, and guidelines. If you are using the Terms and Conditions on behalf of a business, that business accepts these terms.

16.1 All prices, fees, or other charges are due at the time of purchase, unless stated otherwise in the Scope of Work, or negotiated with MCS-HBB Administration.

16.2 MCS-HBB reserves the right to alter, amend, or change all prices, fees, promotions or offerings at any time and for any reason.

16.3 MCS-HBB reserves the right to cancel or suspend Client’s Services at any time for late payment or non-payment, in Consultant’s sole discretion.

16.4 For all Client products or services requiring recurring payments, you must provide a valid credit or debit card to cover all recurring fees. To begin enrollment, you must make an initial starting payment. After that initial payment, all subsequent reoccurring payments will be made automatically and you agree that Consultant may submit periodic charges (monthly, annually, etc.) at the then-current price or rate to your chosen payment card, on the recurring date corresponding to the date you enrolled without further authorization from you until you provide notice that you wish to terminate this authorization or change your payment method.

16.5 Prices and fees listed for MCS-HBB products or services may not include all applicable taxes. Client shall pay the amount of any federal, state, county, or municipality’s applicable taxes for this transaction which is now in effect or may hereafter become effective and Client agrees to pay the amount thereof on the same terms as you shall pay the quoted price or fees.

  1. REFUSAL

17.1 Consultant reserves the right to refuse to sell any product or service at any time for any reason in Consultant’s sole discretion.

  1. MISCELLANEOUS

18.1 Consultant may amend these Terms and Conditions from time to time. Except as otherwise determined by Consultant, all amended terms shall automatically be effective at the time of posting on either MCS-Stl.com or HBBTech.

18.2 Consultant reserves the right to eliminate, add, change, and substitute benefits, products, services without notice.

18.3 Client agrees that no joint venture, partnership, employment, or agency relationship exists between you and Consultant as a result of these Terms and Conditions.

18.4 These Terms and Conditions and any other terms referenced herein, shall constitute the entire agreement between you and Consultant.

18.5 Any rights not expressly granted herein are reserved.

 

Version 2.0, January 31, 2020