Service Terms and Conditions

CLIENT OBLIGATIONS.

2.1  General.  Client shall: (a) provide a suitable operating environment (including without limitation adequate electrical power supply), a safe workplace, and reasonable access to any devices to be serviced, for PRO’s Representatives (as defined in Section 5.2) providing on-site Services; (b) ensure, unless specifically requested by PRO, that no person other than PRO and its authorized representatives interferes with any part of the Services; (c) provide stable Internet access for any remote Services; (d) ensure that all third-party software related to the Services has been properly licensed; (e) provide appropriate back-up for all Client data; and (f) provide to PRO such information as PRO reasonably requires in order to perform the Services. 

2.2  Use of the Services.  Client and its users will abide by the terms and conditions set forth herein.  Client shall be solely responsible for Client’s and its users’ compliance with all applicable laws and governmental regulations affecting the operation of the business of Client and use of the Services.

FEES

3.1  Fees.  In consideration of the provision of the Services described herein and/or in any Order, Client agrees to pay PRO the fees set forth in the duly executed Order.  All fees due and payable by Client to PRO must be paid in full without any deduction, set-off, counterclaim or withholding of any kind unless required by law and shall be non-refundable unless otherwise determined by PRO in its sole and absolute discretion.

3.2  Taxes; Expenses.  All fees due and payable under this Agreement are exclusive of taxes, which will be added at the prevailing rate from time to time.   Third-Party Product fees, reasonable travel and out-of-pocket expenses (such as parking fees) are not included in the fees set forth in the relevant Order and will be invoiced separately.

3.3  Payment Account; Invoices.  If Client designates a payment account, all fees, taxes and expenses shall be deducted from such payment account. Client authorizes PRO to automatically charge the payment account for the fees (plus applicable taxes and expenses) agreed to in an Order without any further authorization from Client.  In the event Client elects to pay with a credit card, Client’s credit card will be debited in the manner authorized for the amount of the payment to PRO, plus a 3.5% credit card fee.  If no payment account or credit card has been designated, PRO will provide Client with an invoice.  Unless otherwise set forth in the applicable Order or exhibit, such invoice shall be due and payable by Client within 30 days from the invoice date.  Invoices are deemed accepted and approved unless disputed by Client in good faith in within 15 days from the invoice date.

3.4  Late Payments.  In the event payment is not made by the date such payment is due: (a) PRO may, upon 30 days’ written notice to Client, suspend Services until payment is made in full, without incurring any liability; and (b) PRO may apply a late payment fee of 5% per month to such late payment.

TERM; TERMINATION

4.1  Term.  This Agreement is effective as of the Effective Date and will continue until terminated in accordance with this Article 4.  The Services under each Order will commence and terminate on the dates set forth in the applicable Order.

4.2  Termination.  Either party may terminate this Agreement or any Order upon 30 days’ written notice to the other party (the “Defaulting Party”) if the Defaulting Party fails to perform or otherwise materially breaches this Agreement or any Order, has a petition in bankruptcy, becomes insolvent, or dissolves.  Any such termination will be without prejudice to any other rights or remedies that the non-defaulting party may have under this Agreement, at law or in equity.  Unless otherwise set forth in the applicable Order, either party may terminate this Agreement or any Order for convenience by providing 30 days’ written notice to the other party.  In the event of any termination of this Agreement or any Order, Client will immediately pay all outstanding fees, taxes, and expenses incurred through the termination date, including without limitation any restocking fees for parts purchased by PRO.  Further, if Client terminates this Agreement or any Order for convenience, no prepaid fees will be refunded.

CONFIDENTIALITY

5.1  Confidential Information.  The parties acknowledge that a party (the “Receiving Party”) may have access to or receive confidential or proprietary information relating to the other party (the “Disclosing Party”) which is either identified as confidential at the time of disclosure, or should reasonably be recognized by the Receiving Party as confidential under the circumstances, whether or not marked as confidential or proprietary (collectively, “Confidential Information”). Confidential Information shall not include any information that the Receiving Party can establish: (a) was generally available to the public (or becomes so) without the fault or negligence of the Receiving Party, (b) was known by or in the possession of the Receiving Party before receipt from the Disclosing Party; (c) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (d) is rightly obtained by the Receiving Party from a third party without a duty of confidentiality.

5.2  Non-Disclosure.  The Receiving Party will use Confidential Information solely as necessary to perform its obligations under this Agreement and shall take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, but in any event no less than reasonable care, to prevent the disclosure or use of any such Confidential Information, other than (a) by 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, or (b) as required by any law, regulation, or order of any court of proper jurisdiction. Upon request, all Confidential Information will be returned to the Disclosing Party or securely erased or destroyed.

Limitation of liability

PRO’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER SHALL IN NO EVENT EXCEED THE FEES PAYABLE BY CLIENT TO PRO UNDER THE APPLICABLE ORDER THAT GAVE RISE TO SUCH CLAIM.  IN NO EVENT WILL PRO BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND/OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST DATA), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

Indemnification

7.1  Client Indemnification.  Client shall indemnify, defend and hold harmless PRO and its Representatives from and against any liabilities, losses, costs, damages, demands and expenses, including reasonable attorneys’ fees, arising out of or relating to (a) Client’s or its Representatives’ acts and/or omissions; (b) Client’s or its Representatives’ breach of any of the terms of this Agreement or any Order; and/or (c) Client’s failure to comply with applicable laws.

7.2  PRO Indemnification.  PRO will indemnify, defend and hold harmless Client and its Representatives from and against any claim that Client’s use of PRO’s Services (excluding any Third Party Products) constitutes an infringement, violation, trespass, contravention or breach in the United States of any patent, copyright, trademark, license or other property or proprietary right of any third party, or constitutes the unauthorized use or misappropriation of any trade secret of any third party. 

GENERAL

8.1  Force Majeure.  Neither party is liable for any failure to perform, or delay in performing, any particular obligations under this Agreement where the failure or delay arises from any cause or causes beyond its reasonable control, including without limitation, fire, flood, earthquake, elements of nature, epidemics, pandemics, acts of God, communications or computer (software and hardware) services, prevention by restrictions of a legal or regulatory nature from supplying the Services, acts of war, terrorism, strikes (or other labor unrest), riots, civil disorders or rebellions (“Force Majeure Event”).  In the event of a Force Majeure Event, the parties agree to meet and discuss how to resolve the issue. This Section does not apply to any obligation to pay money, or any obligation that is unaffected by the Force Majeure Event.

8.2  Independent Contractor.  PRO is an independent contractor and will determine the method, details and means of performing the Services.  No party shall have the authority to bind, represent or commit the other.  Nothing in this Agreement shall be deemed or construed to create a joint venture or agency relationship between the parties for any purpose. 

8.3  Governing Law.  This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Illinois, without regard to its choice of laws principles.  Any action related to or arising from this Agreement shall take place exclusively in Chicago, Illinois and the parties hereby submit to such venue.

8.4  Non-Solicitation.  During the term of this Agreement and for a period of one year following the effective date of termination, Client shall not, without PRO’s prior written consent, directly or indirectly (a) solicit or encourage any PRO Representative to leave the employment or other service of PRO, or (b) hire, on behalf of the Client or any other person or entity, any PRO Representative who performed Services for Client or with whom Client became acquainted during the term of the Agreement. Notwithstanding the foregoing, Client may hire PRO’s Representatives who (i) respond to public advertisements, or (ii) have not provided Services to Client under for a period of one year or more.  In the event of a breach of this Section, PRO’s sole and exclusive liability and Client’s sole and exclusive remedy shall be for Client to pay PRO one hundred percent (100%) of the Representative’s then-current annual salary and/or engagement fee.

8.5  Assignment.  Either party may assign this Agreement upon written consent to the other party, assuming that the assignee agrees in writing to be bound by the terms and conditions of this Agreement.  This Agreement will be binding upon the parties and their respective legal successors and assigns.

8.6  Notices.  All notices and other communications given or made pursuant to this Agreement must be in writing, sent to the persons designated herein or to such other persons and addresses as the parties may designate from time to time and will be deemed to have been given upon the earlier of actual receipt or (a) personal delivery to the party to be notified, (b) when sent, if sent by facsimile or electronic mail during normal business hours of the recipient, and if not sent during normal business hours, then on the recipient’s next business day, (c) five days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (d) one business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt.

8.7  Arbitration.  If the parties are unable to resolve any dispute through good faith discussions, then the parties may bring an arbitration action.  The arbitration proceedings shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association in effect at the time of the demand for arbitration. The location of the arbitration shall be Chicago, Illinois.  Each party shall bear its own expenses in the arbitration.  In the event a party disagrees with the decision of the arbitrators (including determination of the amount of damages suffered, if any), such party may seek recourse in a court of competent jurisdiction.

8.8   Miscellaneous.  No waiver of any of the terms of this Agreement or any Order will be valid unless in writing and designated as such.  Any forbearance or delay on the part of either party in enforcing any of its rights under this Agreement will not be construed as a waiver of such right to enforce same for such occurrence or any other occurrence.  If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect.  This Agreement, any Order and any amendments thereto may be executed in counterparts and will not be effective or enforceable unless and until it is executed with the signature of an authorized representative of each party.  Any provision of this Agreement which, by its nature, should survive termination of this Agreement, will survive any such termination of this Agreement. This Agreement, including all Orders, exhibits and referenced documents constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties.