1.  NO GUARANTEES

 

Company cannot guarantee the outcome of services on the Client’s business and Company’s comments about the outcome are expressions of opinion only. Company makes no guarantees other than that the services described in the CSA and shall be provided to Client in accordance with the terms of this agreement. Client acknowledges that Company cannot guarantee any results for Services as such outcomes are based on subjective factors that cannot be controlled by Company.

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2.  CONFIDENTIALITY

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a.  “Confidential Information” includes all information related to the business of one party (“Disclosing Party”) and any of its affiliates, clients, and other third parties, to which the other party (“Receiving Party”) has access, whether in oral, written, graphic or machine-readable form, in the course of or in connection with the Services and the Terms and Conditions of this Agreement. The Receiving Party will keep the Confidential Information confidential and may disclose the Confidential Information to its officers, directors, employees, agents, and subcontractors (and their employees)(“Representatives”) who have a need to know such Confidential Information solely in connection with this Agreement.  The Receiving Party will cause such Representatives to comply with this Agreement and will assume full responsibility for any failure to comply with the Terms of this Agreement.  The Receiving Party will not use any Confidential Information for any purpose other than to perform its obligations under this Agreement.  This Section 6 does not apply to:

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i. Information that is or becomes publicly available through no fault of the other party;

ii. Was in possession of one of the receiving parties prior to its receipt of the disclosing party; 

iii. Is independently developed by the receiving party without reference to the Confidential Information; and/or

iv. becomes known from a third party independently of the receiving party’s knowledge and is not subject to an obligation of confidentiality.

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The Receiving Party may only disclose Confidential Information when legally required to do so after informing the Disclosing Party of its legal obligation.  Upon termination or expiration of this Agreement, or upon Disclosing Party’s request, Receiving Party shall return or destroy (with officer certification) all originals and copies of Disclosing Party’s Confidential Information.

 

b.  Public Disclosure: Neither party may disclose the terms of this Agreement. Neither party shall make any formal or informal public statement, press release, or other announcement regarding the existence or terms of this Agreement without the other party’s prior written approval.

 

c.  Non-Disparagement: Client shall, during and after the participation in and use of the Company’s services, refrain from making any statements or comments of a defamatory or disparaging nature to any third-party regarding Company, or any of Company’s officers, directors, employees, personnel, agents, policies, services or products, other than to comply with the law.

 

3. INDEPENDENT CONTRACTORS

 

a.  Independent Contractor Relationship: This Agreement shall not render Company an employee, partner, agent of or joint venturer with the Client for any purpose. Company is and will remain an independent contractor in its relationship to the Client. Company is or remains open to conducting similar tasks or activities for entities other than the Client and holds itself out to the public to be a separate business entity. Company shall retain sole and absolute discretion in the manner and means of carrying out the activities and responsibilities under this Agreement. Company shall be responsible to the ownership and management of the Client, but Company will not be required to follow or establish a regular or daily work schedule. Company will not rely solely on the equipment or offices of Client for completion of tasks and duties set forth pursuant to this Agreement. Any advice given to Company regarding services performed for the Client shall be considered a suggestion only, not an instruction. Client retains the right to inspect, stop or alter the work of Company to assure its conformity with this Agreement and Client needs. Company and Client agree to conform to any and all IRS tests necessary to establish and demonstrate the independent contractor relationship between Client and Company.

 

b.  Taxes & Benefits: Company will be responsible for filing its own tax returns and paying taxes in accordance with all provisions of applicable Federal and State law. Client shall not be responsible for withholding taxes with respect to Company’s compensation. Company shall have no claim against Client for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits or employee benefits of any kind.

 

4. NON-SOLICITATION

 

Neither party shall, during the term of this Agreement, and for one (1) year following the termination, directly or indirectly, hire, solicit or attempt to hire or otherwise induce any change in or cessation of a business relationship with any employee and/or contractor of the other party who performed work on any project covered by this Agreement without such other party’s consent; provided that the foregoing shall not prohibit either party from issuing advertisements of a general nature not specifically directed at any such employee and hiring any such employee so long as such party is in compliance with this Section 8. 

 

In the event of such a break of this Section 8, the breaching party’s sole and exclusive liability and the non-breaching party’s sole and exclusive remedy shall be for the breaching party to immediately pay the non-breaching party an amount equal to one hundred percent (100%) of the employee and/or contractor’s fees received by the non-breaching party in the twelve (12) month period preceding the date of such breach.  Each party recognizes and agrees the restrictions set forth in this Section 8 herein, including without limitation the time period, are fair and reasonable, and the restrictions are reasonably tailored so as to meet the legitimate business interest of the other party.

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5. TRANSFER OF INTELLECTUAL PROPERTY RIGHTS

 

Provided Client has complied with the terms of this agreement, and upon final payment to Company for services, Company shall automatically thereby grant, transfer, assign and convey to Client, and its successors and assigns, all right, title, interest, ownership and all subsidiary rights, including all rights accruing to Company under the United States Copyright Act, in and to all works of authorship and all copyrights, patents, trade secrets and any other intellectual property rights, business concepts, plans and ideas, reports, manuals, visual aids, documentation, inventions, processes, proposed products, services, techniques, marketing ideas, and commercial strategies, that have been or will be created by Company, for Client (“the Work”) for use throughout the world in perpetuity in any manner or media whether now known or hereafter invented. Company hereby further waives any moral rights it may have with regard to Client’s uses of the Work. Company agrees, at Client’s reasonable expense, to cooperate as may be necessary to assist Client in enforcing Client’s rights in the Work.  Notwithstanding the foregoing, Client grants Company a worldwide, nonexclusive, revocable license to display the written or visual content developed by Company for Client only in association with Company’s portfolio and for other business development and marketing purposes.

 

6. WARRANTIES

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a.  Company’s Warranties:  Company represents, warrants and covenants that Company has full authority to enter into this Agreement and that all of the services, whether performed by Company or any of its subcontractors, will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable and qualified personnel.

 

b.  Client’s Warranties:  Client represents, warrants and covenants that Client has full authority to enter into this Agreement and has or will obtain, during all times relevant hereunder, all of the necessary consents, rights, licenses, clearances, releases or other permissions to lawfully consummate the transactions and lawfully discharge, in all material respects, each and every of Client’s obligations or duties set forth hereunder, whether performance is due now or hereafter during the Term.

 

c.  EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED THROUGHOUT THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED.

 

7. MUTUAL INDEMNIFICATION

 

Each party ("Indemnifying Party") shall defend, indemnify and hold the other party and its directors, officers and employees harmless from and against any and all third-party claims, suits, actions, or demands for liability, and any associated damages, losses, costs and expenses (including the reasonable costs and expenses of attorneys and other professionals) payable to third parties to the extent arising out of or resulting from the (i) negligence or willful misconduct of the Indemnifying Party, (ii) the inaccuracy of any representation, or (iii) the breach by the Indemnifying Party of any warranty, covenant or agreement contained in this Agreement.

 

8. LIMITATION OF LIABILITY

 

a.  IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND

 

b.  IN NO EVENT SHALL A PARTY’S LIABILITY EXCEED THE FEES PAID UNDER THIS AGREEMENT PAYABLE IN THE MOST RECENT SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY.

 

c.  THE FOREGOING LIMITATIONS IN THIS SECTION 11 SHALL NOT APPLY TO A BREACH OF CONFIDENTIALITY BY A PARTY HEREUNDER OR THE OBLIGATIONS UNDER PARAGRAPHS 2, 5 AND 16. 

 

9. FORCE MAJEURE

 

Other than with respect to Client’s payment obligations, neither party shall be held responsible for delays or non-performance caused by activities or factors beyond each party’s reasonable control, including without limitation, war, weather, strikes, lockouts, fires, failure of telecommunication lines, unavailability of key personnel, epidemics, pandemics, act of God, or terrorism (“Force Majeure Event”).  Notwithstanding the foregoing, the affected party shall promptly provide written notice thereof to the other party, which notice shall include a detailed description of the event of force majeure along with the affected party’s estimate of the length of time such event will delay or prevent performance under this Agreement.  Additionally, the affected party shall use reasonable efforts to limit the impact of the event of force majeure on its performance under this Agreement.  

 

If an event of force majeure continues for at least thirty (30) days, either party shall have the right to immediately terminate this Agreement pursuant to the terms of this Agreement.

 

10. EFFECT OF HEADINGS

 

The subject headings of the paragraphs and subparagraphs of this Agreement are included for convenience only and shall not affect the construction or interpretation of any of its provisions.

 

11. ENTIRE AGREEMENT; MODIFICATION; WAIVER

 

This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by all the parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the party making the waiver.

 

12. NEUTRAL CONSTRUCTION 

 

This Agreement was prepared by the Company and/or Company’s legal counsel. It is expressly understood and agreed that this Agreement shall not be construed against the Company merely because it was prepared by its counsel; rather, each provision of this Agreement shall be construed in a manner which is fair to both parties.

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13. COUNTERPARTS

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This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

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14. ASSIGNMENT

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This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective heirs, legal representatives, successors, and assigns; provided, however, that Client may not assign any of its rights under this Agreement, except to a wholly owned subsidiary entity of Client. No such assignment by Client to its wholly owned subsidiary shall relieve Client of any of its obligations or duties under this Agreement.

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15. GOVERNING LAW; VENUE; MEDIATION

 

This Agreement shall be construed in accordance with, and governed by, the laws of the State of ILLINOIS as applied to contracts that are executed and performed entirely in ILLINOIS. The exclusive venue for any court proceeding based on or arising out of this Agreement shall be COOK COUNTY, ILLINOIS. The parties agree to attempt to resolve any dispute, claim or controversy arising out of or relating to this Agreement by mediation, which shall be conducted under the current mediation procedures of The CPR Institute for Conflict Prevention & Resolution or any other procedure upon which the parties may agree. The parties further agree that their respective good faith participation in mediation is a condition precedent to pursuing any other available legal or equitable remedy, including litigation, arbitration or other dispute resolution procedures.

 

16. RECOVERY OF LITIGATION EXPENSES

 

If any legal action or any arbitration or other proceeding is brought for the enforcement of this Agreement, or because of an alleged dispute, breach, default or misrepresentation in connection with any of the provisions of this Agreement, the successful or prevailing party or parties shall be entitled to recover reasonable attorneys’ fees and other costs incurred in that action or proceeding, in addition to any other relief to which it or they may be entitled.

 

17. JURY WAIVER

 

EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY DISPUTES ARISING OUT OF OR RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR THE RELATIONSHIP OF THE PARTIES HEREUNDER.

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18. SEVERABILITY

If any term, provision, covenant or condition of this Agreement is held by an arbitrator or court of competent jurisdiction to be invalid, void or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.