TERMS & CONDITIONS
Failure to timely pay any fees and expenses that are not the subject of a good faith dispute shall constitute a material breach of the Agreement. EMPIST may assess a late fee for past-due invoices. If any amounts are overdue, EMPIST may provide the Client with written notice of the same (a “Late Notice”). If Client fails to pay all overdue amounts within 10 business days after Client’s receipt of the Late Notice, then EMPIST may, in addition to any of its other rights or remedies, suspend work until all overdue amounts are paid in full.
If Client fails to pay all overdue amounts within 30 after Client’s receipt of the Late Notice, then EMPIST may terminate the Agreement shall be entitled to recover from Client (i) interest on all overdue amounts at the maximum rate permitted by law (“Interest”); and (ii) all fees and costs (including reasonable attorney’s fees, court costs, and collection agency fees) incurred in seeking collection of such overdue amounts (“Collection Costs”).
Upon termination, each Party shall return or destroy, after giving the other Party proper notice, all the other Party’s Confidential Information in its possession. Both Parties will cooperate in transferring to the other all equipment or other tangible property owned by the other Party that is in their possession. In the event either Client or EMPIST terminates an Agreement for any reason, EMPIST will provide Client with all of their data specific to that agreement, provided Client has paid all invoices and any other monetary obligations accruing to EMPIST in full. The client will be responsible for all work completed up to the date of termination.
In connection with the Services performed under this and any agreement, each Party may have access to the other Party’s Confidential Information. “Confidential Information” means (i) non-public information that the disclosing Party designates as being confidential or which under the circumstances surrounding disclosure or the nature of the information the receiving Party should reasonably understand to be the disclosing Party’s Confidential Information, and/or (ii) non-public information received by the disclosing Party from third parties that the disclosing Party is obligated to treat as the third party’s Confidential Information, provided the disclosing Party shall disclose to the receiving Party the confidential nature of such third party information. “Confidential Information” shall not include any information that: (i) is already known to the receiving party or its affiliates to be free of any obligation to keep it confidential; (ii) is or becomes publicly known through no wrongful act of the receiving Party or its affiliates; (iii) is received by the receiving Party from a third party without any restriction on confidentiality; (iv) is independently developed by the receiving party or its affiliates; (v) is disclosed to third parties by the disclosing Party without any obligation of confidentiality; (vi) is approved for release by prior written authorization of the disclosing Party; or (vii) is required to be disclosed pursuant to a lawful subpoena or other compulsory disclosure demand issued by a court or government agency having proper jurisdiction to do so; provided that in the event a receiving Party is served with a subpoena or other compulsory disclosure demand that would require the receiving Party to disclose any of the disclosing Party’s Confidential Information, the receiving Party shall promptly provide the disclosing Party with a copy of such subpoena or disclosure demand and shall cooperate with the disclosing Party on reasonable terms and conditions in any effort by the disclosing Party to quash the subpoena or demand or secure an appropriate protective order.
The Parties agree to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of the other Party’s Confidential Information by preventing any unauthorized copying, use, distribution, installation, or transfer of possession of such information. Each Party agrees to maintain at least the same procedures regarding the other Party’s Confidential Information that it maintains with respect to its own Confidential Information, but in no event less than a reasonable standard of care to ensure that the Confidential Information shall not be disclosed or disseminated in contravention of this Agreement. Without limiting the generality of the foregoing, neither Party shall permit any of its personnel to remove any proprietary or other legend or restrictive notice contained or included in any Confidential Information provided by the disclosing Party and the receiving Party shall not permit its personnel to reproduce or copy any Confidential Information except as expressly authorized hereunder. A Party’s Confidential Information may only be used by the other Party in order to fulfill its obligations under this Agreement.
Each Party acknowledges that the other may, as a result of its receipt of or exposure to the other Party’s Confidential Information, increase or enhance the knowledge and experience retained in the unaided memories of its directors, employees, agents, or contractors. Notwithstanding anything to the contrary in this Agreement, each Party and its directors, employees, agents, or contractors may use and disclose such knowledge and experience in such Party’s business, so long as such use or disclosure does not involve specific Confidential Information received from the other Party. The Disclosing Party will not have rights in such knowledge and experience acquired by the receiving Party, or rights in any business endeavors of the receiving Party which may use such knowledge and experience, or rights to compensation related to the recipient party’s use of such knowledge and experience.
All information relating to EMPIST that is known to be Confidential Information or proprietary Information, or which is clearly marked as such, will be held in confidence by Client and will not be disclosed or used by Client except to the extent that such disclosure or use is reasonably necessary to the performance of Client’s duties and obligations under this Agreement. These obligations of confidentiality will extend for a period of twelve (12) months after the termination of this Agreement.
Non-Solicitation of Employees
Client agrees not to solicit, hire, employ, retain, or contract with any employee of EMPIST without first receiving EMPIST’s written consent. Furthermore, Client agrees not to entice or induce any employee of the EMPIST to terminate or not renew his or her employment or relationship with the EMPIST. If any employee terminates his or her employment with EMPIST for any reason and is employed by Client (or any affiliate or subsidiary of Client) in any capacity either during or within a six (6) month period, or if any employee terminates his or her employment with EMPIST due to Client’s breach of the covenants set forth herein, (either event referred to as an “Employment Violation”) Client shall immediately pay EMPIST an amount equal to 50% of the yearly salary or wage paid by EMPIST to such employee at the end of employee’s employment with EMPIST (“Employment Violation Penalty”). Client agrees and acknowledges that EMPIST will suffer damages in the event any Employment Violation and, although the amount of such damages is difficult or impossible to determine, the Parties agree that the Employment Violation Penalty set forth under this Section is a reasonable estimate of EMPIST’s loss in the event of an Employment Violation. Thus, EMPIST shall accept the Employment Violation Penalty set forth under this Section as liquidated damages but not as a penalty. Such liquidated damages shall constitute EMPIST’s sole and exclusive remedy for an Employment Violation.
CHOICE OF LAW, VENUE & DISPUTE RESOLUTION
THE VALIDITY, CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT OF THIS AGREEMENT, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO, SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT ANY REMEDIES HEREUNDER ARE GOVERNED EXCLUSIVELY BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF ILLINOIS, THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF COOK, STATE OF ILLINOIS. CLIENT WAIVES, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE IN ANY COURT IN THE COUNTY OF COOK, STATE OF ILLINOIS TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION. EACH PARTY HERETO WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY LAWSUIT BROUGHT BY THE OTHER PARTY FOR ANY ACTION OR CLAIM UNDER THIS AGREEMENT OR OTHERWISE RELATED TO THE SERVICES PROVIDED BY EITHER PARTY TO THE OTHER PARTY.
Except for legal actions concerning the payment of charges incurred by Client and for any actions concerning a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any controversy or claim arising out of or relating to this Agreement or to its breach shall be settled by arbitration by a single arbitrator in accordance with Commercial Arbitration Rules of the American Arbitration Association, pursuant to an arbitration held in Illinois, and judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The decision of the arbitrator shall be in writing and counterpart copies shall be delivered to the parties to this Agreement, which decision shall be rendered not later than thirty (30) days after the arbitration hearing has been completed. Notwithstanding anything to the contrary contained herein, the arbitrator shall have no power to change any of the provisions of this Agreement in any respect, nor shall he have the power of reformation, and the jurisdiction of the arbitrator is expressly limited accordingly. Neither party shall interrupt the progress of its performance under this Agreement pending the determination in the arbitration proceeding. Each party shall equally bear the expenses and fees of the arbitrator, and each party shall bear the expenses of its own counsel, experts, and the preparation of proof. If the parties cannot agree on arbitration services to use, then parties agree that EMPIST shall have the right to designate a reputable arbitration company to act as arbitrator, such as the American Arbitration Association. A judgment may be entered on the award of the arbitration and may be enforced, provided said award shall be rendered and enforced in accordance with the laws of the state of Illinois. The prevailing Party shall be entitled to receive from the other party its attorney’s fees and costs incurred in connection with any action, proceeding or arbitration hereunder.
EMPIST is an independent contractor. Neither EMPIST nor Client are, nor shall be deemed for any purpose to be, employees or agents of the other and neither Party shall have the power or authority to bind the other Party to any contract or obligation unless expressly authorized in writing. This Agreement shall not be construed as a partnership or joint venture.
If any term of this Agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable, and the remaining portions of this Agreement will remain in full force and effect.
Neither Party will be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay is caused by events or circumstances beyond the delayed Party’s reasonable control including, but not limited to, Acts of God or public enemies, civil war, insurrection or riot, fire, flood, explosion, earthquake or serious accident, strike, labor trouble or work interruption loss of an IP address or other disruption to Internet connection.
No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. The waiver by any Party of any breach of any covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the Party waiving its rights.
Attorneys’ Fees & Costs
If any litigation or arbitration is necessary to enforce the terms of this Agreement, each Party shall cover their attorneys’ fees and costs.
Limitation of Liability
In no event will EMPIST be liable for any loss of profit or revenue by Client, or for any punitive, consequential, incidental, indirect or economic damages incurred or suffered by Client arising as a result of or related to the Services, whether in contract, tort, equity or otherwise, even if Client has advised of the possibility of such loss or damages.
EMPIST carries errors and omissions insurance coverage which includes a limit of no less than $1,000,000.00 (one million dollars) for each claim and no less than a $2,000,000 (two million dollars) annual aggregate, as well as general liability insurance coverage which includes a limit of no less than $1,000,000.00 (one million dollars) for each claim and no less than a $2,000,000 (two million dollars) annual aggregate. EMPIST shall maintain such insurance in full force and effect during all the time that this Agreement is in effect. Client agrees that EMPIST’s total liability for any claims by Client shall be limited to the limits of EMPIST’s insurance coverage. EMPIST carries workers compensation insurance in an amount equal to or greater of what is required by law. EMPIST shall maintain such insurance in full force and effect during all the time that this Agreement is in effect.
Client shall indemnify, defend and hold EMPIST and its affiliates and their respective shareholders, directors, managers and employees harmless from and against all demands, complaints, petitions, judgments, losses, liabilities, costs and expenses (including but not limited to reasonable attorney’s fees and litigation or arbitration costs and expenses at trial or on appeal) from any claims arising from software or licenses that (i) were purchased or installed prior to the execution of this Agreement, or (ii) were not purchased through and installed by EMPIST.
Exclusions and Reimbursements
If EMPIST needs to purchase any spare parts, licenses, other equipment, supplies, accessories or software on Client’s behalf and for use at Client’s site, or in order to deliver the Service to Client, Client agrees to reimburse EMPIST for all such costs and expenses incurred under this Agreement. No purchases will be made without prior Client approval. Any equipment, supplies, accessories or software for which Client reimburses EMPIST shall be the property of Client.
Any hardware or software that is required in order for EMPIST to deliver the Services listed in the Agreement that are not being provided by EMPIST shall be the responsibility of the Client.
Any hardware or software obtained by Client prior to the commencement of this Agreement, or after the execution of this Agreement which was not procured and installed by EMPIST will be Client’s responsibility.
Neither Party will assign this Agreement, in whole or in part, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned or delayed. Any attempted assignment of this Agreement in breach of this subsection shall be null and void and without any legal force or effect. Notwithstanding the foregoing, EMPIST shall have the absolute right to assign its rights, duties and obligations under this Agreement to any subsidiary or affiliate of EMPIST or to any third party pursuant to the whole or partial sale, consolidation or merger of the business of EMPIST. This Agreement will inure to the benefit of, and be binding upon the Parties hereto, together with their respective legal representatives, successors, and permitted assigns, as permitted herein.