AEROSHIELD INC. OF
33 W. HIGGINS RD, SUITE 5000, SOUTH BARRINGTON, IL 60010
TERMS OF SERVICE
LAST REVISED: 01/24/2023
By executing any Matter (as hereinafter defined) with Aeroshield Inc., an Illinois corporation (hereinafter, the “Aeroshield”), the Client executing any such Matter (the “Client”) hereby agrees to be bound by this Terms of Service and may only use and consume the Services (as hereinafter defined) and receive the Deliverables (as hereinafter defined) subject to the terms and conditions set forth in this Terms of Service. For the purposes of this Terms of Service: (a) a “Matter” means a written directive or proposal agreed to between Aeroshield and Client, regardless of whether Aeroshield sends to Client a written proposal by e-mail or otherwise and Client accepting such proposal, and regardless of whether the Client sends to Aeroshield a written proposal by e-mail or otherwise and Aeroshield accepting such proposal; (b) “Services” means any services to be performed by Aeroshield for the benefit of the Client pursuant to a Matter; and, (c) “Deliverables” means all of the services, goods, products, work, work product, data (including data collected on behalf of the Client), items, materials, consulting, training, recommendations, reports, and property to be created, developed, produced, delivered, performed, or provided by or on behalf of, or made available through, Aeroshield in connection with performance of Services. Capitalized terms used in this Terms of Service and not defined in text/body of this Terms of Service have their meanings ascribed in Section 14 of this Terms of Service.
- Modifications to Matter & Terms of Service.
- Change Orders. Any alteration, deletion, or addition to Services in any Matter or a change in any provision(s) of any Matter shall be effective only if made in a change order (“Change Order”) executed by both Parties. Matters are deemed to include any applicable Change Orders. Matter(s) or Change Order(s), however, shall not modify any provisions of this Terms of Service incorporated into any Matter(s) or Change Order(s) except to the extent that this Terms of Service expressly and specifically provide that Matter(s) are permitted to modify and supersede a specific right, remedy, or obligation of a Party.
- Changes to Terms of Service. Aeroshield may update or change the Terms of Service from time to time to reflect changes in Aeroshield’s offerings of Services, changes in the Law, or for other reasons as deemed necessary or advisable by Aeroshield (“TOS Changes”), upon at least fifteen (15) days’ prior written notice to the Client (“TOS Change Notice”). If any TOS Changes result in a material degradation to the capacity, accessibility, or available functionality of the Services or Deliverables, then the Client may, no later than fifteen (15) days after Aeroshield’s issuance of the TOS Change Notice to Client, terminate just the affected Matter(s) and Service(s) (“TOS Changes Rejection Notice”). Upon Aeroshield’s receipt of the TOS Changes Rejection Notice, Aeroshield may elect to terminate all outstanding Matters and this Terms of Service without cause, issue a refund to the Client for any Fees prepaid for periods of terminated Matter(s) and Services which are yet to be provided and deliver to Client all finished and unfinished Deliverables to the Client without any further liability or obligations on Aeroshield. If, however, Aeroshield elects not to terminate all outstanding Matter(s) and this Terms of Service, then all Matter(s) and this Terms of Service will continue to be in full force and effect. Client’s failure to provide the TOS Changes Rejection Notice shall constitute Client’s consent to and acceptance of such TOS Changes, and thereafter, all outstanding Matter(s) shall be subject to the Terms of Service as modified by such TOS Changes.
- Client Obligations. Client shall: (a) designate one of its employees or agents to serve as its primary contact with respect to this Terms of Service and each applicable Matter and to act as its authorized representative with respect to matters pertaining to this Terms of Service and each applicable Matter (the “Client Contract Manager”), with such designation to remain in force unless and until a successor Client Contract Manager is appointed; (b) require that the Client Contract Manager respond promptly to any reasonable requests from Aeroshield for instructions, information or approvals required by Aeroshield to provide the Services; (c) cooperate with Aeroshield in its performance of the Services and provide access to Client’s premises, employees, contractors, and equipment as required to enable Aeroshield to provide the Services; and, (d) take all steps necessary, including obtaining any required licenses or consents, to prevent Client-caused delays in Aeroshield’s provision of the Services.
- Fees, Billing, and Payment.
- In consideration of the provision of the Services by the Aeroshield pursuant to applicable Matter(s), and the rights granted to Client (sometimes referred to as "Client" on financial documents such as invoices and statements) under this Terms of Service and each applicable Matter, Client shall pay the fees set out in the applicable Matter (“Fees”). Unless otherwise provided in the applicable Matter and its corresponding invoice, said Fees will be payable within five (5) days of receipt by the Client of an invoice from Aeroshield. Unless otherwise provided in the applicable Matter, Upon Client’s pre-approval, shall reimburse Aeroshield for all reasonable expenses incurred pursuant to Services performed per applicable Matter(s) within five (5) days of receipt by the Client of an invoice from Aeroshield accompanied by receipts and reasonable supporting documentation. Unless otherwise stated in a Changes of Terms of Service signed by both the Client and an authorized Aeroshield representative, all payments made to Aeroshield are non-refundable.
- Client shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Client hereunder; provided, that, in no event shall Client pay or be responsible for any taxes imposed on, or with respect to, Aeroshield’s income, revenues, gross receipts, personnel or real or personal property or other assets.
- Except for invoiced payments that the Client has successfully disputed, and/or unless otherwise set forth in any applicable Matter, all late payments shall bear interest at the lesser of the rate of 18% per month or the highest rate permissible under applicable Law, calculated daily and compounded monthly. Client shall also reimburse Aeroshield for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Terms of Service and each applicable Matter or at law (which Aeroshield does not waive by the exercise of any rights hereunder), Aeroshield shall be entitled to suspend the provision of any Services under all outstanding Matter(s) if the Client fails to pay any undisputed Fees and amounts when due hereunder, including affording Aeroshield the right to terminate this Terms of Service and all outstanding Matter(s) pursuant to Section 4(a) below.
- Term, Termination, and Survival.
- The “Term” of this Terms of Service shall commence as of the date that the first Matter is executed by and between the Parties (the “Effective Date”) and shall continue thereafter until ninety (90) days after the completion of all Services under all Matter(s), unless sooner terminated pursuant to Section 4(b) of this Terms of Service and all outstanding Matter(s). Notwithstanding anything to the contrary in this Section 4(a), Aeroshield may terminate this Terms of Service and all outstanding Matter(s) before the expiration of the Term on written notice if Client fails to pay any Fees and reimbursable expenses when due hereunder and such failure continues for thirty (30) days after Client’s receipt of written notice of nonpayment,
- Either Party may terminate this Terms of Service and each applicable Matter, effective upon written notice to the other Party (the “Defaulting Party”), if the Defaulting Party: (a) materially breaches the Terms of Service and each applicable Matter, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach; (b) becomes insolvent or admits its inability to pay its debts generally as they become due; (c) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within 60 days or is not dismissed or vacated within 45 days after filing; (d) is dissolved or liquidated or takes any corporate action for such purpose; (e) makes a general assignment for the benefit of creditors; or, (f) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell many material portion of its property or business.
- Non-Solicitation. Client hereby covenants and agrees that during the Term and for a period of two (2) years thereafter after the expiration or sooner termination of the Term, the Client shall not, nor shall Client permit any member of the Client Group, to engage or participate in any effort or act to induce, directly or indirectly, any member of Aeroshield Group or any of Aeroshield’s Client(s) to cease doing business, or their association or employment with Aeroshield or any of member of Aeroshield Group.
- Intellectual Property Rights. All data, audiovisual content, files, documents, written information, or other content and information provided by Client to Aeroshield with respect to performance of Services (collectively, “Client Materials”) shall at all times belong to Client. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product and other materials that are delivered to Client under each applicable Matter(s) or prepared by or on behalf of the Client in the course of performing the Services, except for any Confidential Information of Client or Client Materials, shall be owned by Aeroshield. Provided all outstanding Fees are paid in full, Aeroshield hereby grants Client a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Client to make reasonable use of the Deliverables and the Services.
- Confidentiality Obligations. In connection with the performance of the Services (the “Purpose”), either Party (the “Disclosing Party”) may disclose Confidential Information to the other Party (the “Receiving Party”). “Confidential Information” means all non-public or proprietary information treated as confidential by the Disclosing Party, 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,” including but not limited to all: (i) information concerning Disclosing Party’s past, present and future business affairs including finances, products, services, organizational structure, internal practices, forecasts and sales; (ii) unpatented inventions, ideas, methods and discoveries, trade secrets, know-how and other confidential intellectual property; (iii) designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes and other visual depictions, in whole or in part, of any of the foregoing; (iv) any third party confidential information included with, or incorporated in, any information provided by Disclosing Party; and (v) all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations and other materials (”Notes”) prepared by either the Disclosing Party or Receiving Party and their respective Representatives and Affiliates that contain, reflect or are derived from, in whole or in part, any of the foregoing. Except as required by applicable Law, Confidential Information shall not include information that, at the time of disclosure: (A) is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by the Receiving Party or any of its Representatives or Affiliates; (B) is, or thereafter becomes, available to the Receiving Party on a non-confidential basis from a third party source, provided that such third party was not prohibited from disclosing such Confidential Information; (C) was known by or in the possession of the Receiving Party or its Representatives or Affiliates, as established by documentary evidence, before being disclosed by or on behalf of the Disclosing Party; or (D) was or is independently developed by the Receiving Party, as established by documentary evidence, without reference to or use, in whole or in part, of any of the Disclosing Party’s Confidential Information.
- Receiving Party Obligations. Except as set out in Section 7(c), the Receiving Party shall: (i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to perform its obligations under this Terms of Service and each applicable Matter, or otherwise in any manner to the Disclosing Party’s detriment; (iii) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Representatives or Affiliates who (A) need to know the Confidential Information to assist the Receiving, or act on its behalf, to exercise its rights or perform the Services; (B) are informed by the Receiving Party of the confidential nature of the Confidential Information; and (C) are subject to confidentiality duties or obligations to the Receiving Party that are no less restrictive than the terms and conditions of this Terms of Service and each applicable Matter; and (D) be responsible for any breach of this Section 7 caused by any of its Representatives or Affiliates.
- Required Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information under applicable Law or a valid order issued by a court or governmental agency of competent jurisdiction (a “Legal Order”), provided that the Receiving Party shall first make commercially reasonable efforts to provide the Disclosing Party with: (i) prompt written notice of such requirement so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (ii) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
- Return or Destruction of Confidential Information. On the expiration or termination of all Matter(s) and this Terms of Service, and at any time during Term at the Disclosing Party’s written request, the Receiving Party shall promptly return and shall require its Representatives and Affiliates to return to the Disclosing Party all copies, whether in written, electronic or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. In addition, the Receiving Party shall also destroy all copies of any Notes created by the Receiving Party or its Representatives and Affiliates and certify in writing to the Disclosing Party that such copies have been destroyed. Notwithstanding the foregoing, the Receiving Party may retain any copies of Confidential Information, regardless of whether such copies are in original form: (i) included in any materials that document a decision to terminate this Terms of Service and each applicable Matter with the Disclosing Party, or otherwise to cease communications with the Disclosing Party; (ii) as may be required to comply with the Receiving Party’s internal record-keeping policies or any applicable Law to which it is subject; or (iii) that are maintained as archive copies on the Receiving Party’s disaster recovery and/or information technology backup systems. Such copies will be destroyed on the normal expiration of the Receiving Party’s backup files. The Receiving Party shall continue to be bound by the terms and conditions of Section 7 regarding any such Confidential Information retained in accordance with this Section 7(d).
- Remedies. Each Party acknowledges and agrees that money damages might not be a sufficient remedy for any breach or threatened breach of this Section 7 by such Party or its Representatives and Affiliates. Therefore, in addition to all other remedies available at law (which neither Party waives by the exercise of any rights hereunder), the non-breaching Party shall be entitled to seek specific performance and injunctive and other equitable relief as a remedy for any such breach or threatened breach, and the Parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.
- Maintenance of Privilege. The provision of any information or document(s) provided by Client to Aeroshield pursuant to provision of Services shall not be deemed a waiver of any privilege, including privileges arising under or related to the attorney-client privilege or any other applicable privilege (a “Privilege”). Neither the Client or any member of the Client Group nor Aeroshield or any member of the Aeroshield Group will be required to provide any information if the provision of such information would serve as a waiver of any Privilege afforded such information or document(s).
- Limited Warranty and Limitation of Liability.
- Aeroshield warrants that it shall perform the Services: (a) in accordance with the terms and subject to the conditions set out in the respective Matter and this Terms of Service; (b) using personnel of commercially reasonable skill, experience, and qualifications; and, (c) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for similar services.
- Aeroshield’s sole and exclusive liability and Client’s sole and exclusive remedy for breach of this warranty shall be as follows: (a) Aeroshield shall use reasonable commercial efforts to promptly cure any such breach; provided, that if Aeroshield cannot cure such breach within a reasonable time (but no more than 30 days) after Client’s written notice of such breach, Client may, at its option, terminate the applicable Matter(s) and/or this Terms of Service by serving written notice of termination; (b) in the event any applicable Matter(s) and/or this Terms of Service is terminated pursuant to this Section, Aeroshield shall within 30 days after the effective date of termination, refund to Client any Fees paid by the Client as of the date of termination for the Service or Deliverables with respect to applicable Matter(s), less a deduction equal to the Fees for receipt or use of such Deliverables or Service up to and including the date of termination on a pro-rated basis. The foregoing remedy shall not be available unless Client provides written notice of such breach within 30 days after delivery of such Service or Deliverable to Client.
- RELIANCE ON CLIENT MATERIALS AND LEGAL PROPERTY CONTROL; NO DUTY TO VERIFY. CLIENT REPRESENTS AND WARRANTS THAT ALL CLIENT MATERIALS PROVIDED IN THE COURSE OF PERFORMANCE OF SERVICES, INCLUDING ITS LEGAL CONTROL OF PROPERTY WHERE AEROSHIELD PERFORMS ON-SITE SERVICES AT THE PROPERTY DESIGNATED BY THE CLIENT SUCH AS SECURITY SERVICES, SHALL BE TRUE, ACCURATE, AND COMPLETE IN ALL MATERIAL RESPECTS, AND CLIENT ACKNOWLEDGES AND AGREES THAT AEROSHIELD SHALL BE ENTITLED TO RELY ON THE TRUTHFULNESS, ACCURACY, AND COMPLETENESS OF SUCH CLIENT MATERIALS WITHOUT AEROSHIELD HAVING ANY DUTY OR OBLIGATION TO VERIFY THE TRUTH, ACCURACY, AUTHENTICITY, VALIDITY, OR LEGAL SUFFICIENCY OF CLIENT MATERIALS.
- Indemnification. Unless otherwise set forth in the applicable Matter(s), Client agrees to indemnify and hold harmless Aeroshield and all of Aeroshield’s Representatives and Affiliates, and each of their respective successors and assigns (collectively, the “Indemnified Parties”) from and against any and all costs, fees, expenses, damages and liabilities (including reasonable attorneys’ fees and costs) that any Indemnified Parties may suffer, sustain, or incur (collectively, the “Losses”) arising out of or related to any third party claim alleging: (a) any material breach by Client of a representation or warranty made by Client herein or in any Matter(s); (b) any material non-compliance or any breach by Client or any member of Client Group of any term or covenant contained in this Terms of Service or any applicable Matter(s); (c) any bodily injury, death, of any person or damage to real or tangible personal property caused by the negligent actions or omissions of Client or any member of Client Group; (d) any failure by Client or any member of Client Group to comply with any applicable Law or performance of Client’s obligations set forth in this Terms of Service or as set forth in any applicable Matter; and/or (e) any alleged or actual infringement of third party intellectual property rights.
- Limitation of Liability. IN NO EVENT SHALL AEROSHIELD 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), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT AEROSHIELD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL AEROSHIELD’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS TERMS OF SERVICE AND EACH APPLICABLE MATTER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO (2) TIMES THE AGGREGATE AMOUNTS PAID OR PAYABLE TO AEROSHIELD PURSUANT TO THE APPLICABLE MATTER(S) IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Force Majeure. Aeroshield shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Terms of Service and each applicable Matter, for any failure or delay in fulfilling or performing any term of this Terms of Service or any applicable Matter(s) when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Aeroshield including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either Party’s workforce), or negligent actions or omissions of third parties, or untimeliness by any third parties, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, or any other event(s) or circumstance(s) beyond the reasonable control of Aeroshield, provided that, if the event in question continues for a continuous period in excess of 30 days, either Party shall be entitled to give notice in writing to the other Party to terminate this Terms of Service and each applicable Matter.
- Defined Terms. (a) “Party” means Aeroshield or the Client severally, and “Parties” means Aeroshield and Client collectively; (b) “Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise; (c) “Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court, or tribunal of competent jurisdiction; (d) “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any Governmental Authority; (e) “Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association, or other entity; (f) “Representative(s)” means, with respect to any Person, any and all directors, officers, employees, managers, independent contractors, consultants, financial advisors, counsel, accountants and other agents of such Person; (g) “Client Group” means any Person that is an Affiliate or Representative of Client; and, (h) “Aeroshield Group” means any Person that is an Affiliate or Representative of Aeroshield.
- General Provisions.
- Entire Agreement. This Terms of Service, including and together with any related Matter(s), exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. The Parties acknowledge and agree that if there is any conflict between the terms and conditions of this Terms of Service and each applicable Matter, the terms and conditions of this Matter shall supersede and control. Furthermore, the Parties acknowledge and agree that if there is any conflict between the terms and conditions of this Terms of Service and Matter(s) on one hand, and any other terms and conditions set forth in any document(s) or written agreement(s) provided by Client, the terms and conditions of this Terms of Service and applicable Matter(s) shall supersede and control.
- Assignment. Client shall not assign, transfer, delegate, or subcontract any of its rights or delegate any of its obligations under this Terms of Service and each applicable Matter without the prior written consent of Aeroshield. Any purported assignment or delegation in violation of this Section 14(b) shall be null and void. No assignment or delegation shall relieve the Client of any of its obligations under this Terms of Service and each applicable Matter. Aeroshield may assign any of its rights or delegate any of its obligations to any affiliate or to any Person with or without Client’s consent, and with or without notice to Client; provider, however, that assignment by Aeroshield herein shall not relieve Aeroshield from its covenants and obligations under this Terms of Services or any applicable Matter(s).
- No Waiver. No waiver by any Party of any of the provisions of this Terms of Service and each applicable Matter shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Terms of Service and each applicable Matter, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Terms of Service and each applicable Matter shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
- Interpretation. For purposes of this Terms of Service, (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Terms of Service. Unless the context otherwise requires, references herein: (x) to sections, schedules and exhibits mean the sections of, and schedules and exhibits attached to, this Terms of Service; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof/without regard to subsequent amendments, supplements and modifications thereto; and (z) to a statute means such statute enforced at the time and date of this Terms of Service becoming effective and does not include any successor legislation thereto and any regulations promulgated thereunder. This Terms of Service and each applicable Matter shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits referred to herein, if any, shall be construed with, and as an integral part of, this Terms of Service to the same extent as if they were set forth verbatim herein. Whenever the singular is used in this Terms of Service and each applicable Matter, the same shall include the plural, and whenever the plural is used herein, the same shall include the singular, where appropriate.
- Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Terms of Service and each applicable Matter 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.
- Headings. The section and paragraph headings contained herein are for the convenience of the Parties only and are not intended to define or limit the contents of the corresponding sections and paragraphs.
- Survival. The provisions of this Terms of Services and each applicable Matter shall survive the termination of this Terms of Service and such applicable Matter(s) to the extent necessary to effectuate the terms contained herein.
- Governing Law; Venue; Waiver of Jury Trial. This Terms of Service, and each Matter, shall be governed by and construed in accordance with the laws of the State of Illinois (without giving effect to its laws of conflicts). The Parties agree that any legal action or proceeding with respect to any of their respective obligations this Terms of Service and each applicable Matter shall be brought exclusively in the County of Cook, State of Illinois. THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THE TERMS OF SERVICE AND EACH APPLICABLE MATTER.
- Statute of Limitations. Except with respect to each Party’s rights and obligations pertaining to Confidential Information and indemnification, each Party agree that regardless of any statute or law to the contrary, any claim or any other cause of action arising out of or related in any way to the Terms of Service or any appliable Matter(s), and use of use of the Services and receipt of Deliverables, must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- Severability. If any provision of this Terms of Service or any applicable Matter is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Terms of Service and any applicable Matter will remain in full force and effect. Any provision of this Terms of Service or any applicable Matter held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
- Notice. All notices, requests, consents, claims, demands, waivers and other communications under this Terms of Service and each applicable Matter (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set forth in the last Matter executed between the Parties (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Terms of Service and each applicable Matter, a Notice is effective only (i) on receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section 12.
- Counterparts. This Terms of Services and each appliable Matter, and any amendment(s) thereto, may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Terms of Service or any Matter delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Terms of Service and any such Matter.