The fine print.
Information We May Collect
OneIMS strives to provide the best service to its customers. In order to do so, we may collect basic information about your business including your name, organization name, e-mail address(es), mailing address(es), phone number(s), and other pertinent information regarding your business and your business needs. This enables us to inform you of our products and services to serve you better.
Protecting Your Information
OneIMS uses up to 256-bit Secure Sockets Layer (SSL) encryption when collecting or transferring sensitive data to ensure that any critical data, such as credit card information, is unreadable while it is being transferred over the Internet. OneIMS has also implemented internal policies and procedures in the interest of safeguarding the information we collect.
Disclosure of Information
OneIMS will not rent, sell, or trade your information. We use your information exclusively to provide you products and services. OneIMS may provide our partners, companies or persons who are involved in processing your order, with the necessary information to perform associated service(s) for OneIMS. OneIMS will disclose your personally identifiable information if required to do so by law.
An unsubscribe/opt-out link is found on the bottom of all email correspondence sent out by OneIMS or subsidiaries. You may choose to unsubscribe/opt-out at any time. You may also send us your request to: OneIMS 111 E Wacker Drive, Suite 435, Chicago, IL 60601
Links to Third Party Sites
OneIMS: Master Services Agreement
THIS CLIENT MASTER SERVICES AGREEMENT (“CMSA”) is entered into by you (“Client”) as evidenced by your use of the services (defined below). OneIMS and Client agree to the following terms and conditions:
“Client” means Client’s corporate subsidiaries, as well as corporate parents, affiliates and other related entities approved by OneIMS to receive Services under this CMSA.
“Confidential Information” includes, but is not limited to, proprietary technical data, know-how, and/or trade secrets that, but for this CMSA, the Party would have no right to receive disclose or use. It does not include information which, at the time of disclosure or thereafter is generally available to or known by the public, was available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, or both OneIMS and Client agree it is not Confidential Information.
“Disclosing Party” means the Party providing confidential information and its representatives.
“Good Faith” means fair and honest dealing so as to not destroy the right of the party or parties to receive the benefits of the contract.
“Intellectual Property” means all innovations, concepts and ideas (whether patentable or not), improvements, discoveries, designs, plans, drawings, blueprints, patent applications, patents, patents rights, trademarks, trademark rights, trade names, trade name rights, service marks, product names, brands, logos, trade dress and other distinctive identifications used in commerce, the goodwill associated with any of the forgoing, service mark rights, copyrights (other than copyrights in “off-the-shelf” computer programs), copyrightable works and derivatives thereof, original works of authorship, computer code of any type (whether source code or object code) in any programming or markup language underlying any type of computer programming (whether application software, middleware, firm ware or system software) including, but not limited to, applets, assemblers, compilers, design tools, user interfaces, databases and fixations thereof, domain name registrations, all applications and registrations for any of the foregoing, trade secrets, confidential and proprietary information, know-how, formulae, methods, schedules, processes and other intangible proprietary rights.
“OneIMS” means OneIMS, Inc., an Illinois Company having its principal place of business at 111 E Wacker Drive, Suite 435, Chicago, IL 60601 and its affiliates and subsidiaries.
“Party” mean’s singularly, OneIMS or Client, and, collectively, “Parties” shall mean OneIMS and Client.
“Payment Schedule” means a written document from OneIMS to the client identifying the payment amount and due dates.
“Receiving Party” is the Party Receiving confidential information and its representatives.
“Recruit” includes solicited applications for jobs but does not include unsolicited applications for jobs, responses to public advertisements, or candidates submitted by recruiting firms, without any direct contact between Client and OneIMS employees.
“Services” means the work, jobs, services, goods, deliverables, duties and activities to be performed or provided by OneIMS as determined by the Proposal and as limited by Section 4.2 of this CMSA.
“Proposal” means any written document or online click-through document provided by the Client to OneIMS containing the Services, as defined by Section 4 of this CMSA.
“Subcontractor” means any company or entity with whom OneIMS enters into an agreement to perform any of the Work or to whom OneIMS otherwise delegates any of the Work.
“Unique Client Content” is defined for this CMSA as textual or graphical content which has been provided to OneIMS by Client and is of Client origin, or graphical content created by OneIMS specifically for the Services.
“Additional Proposal ” means a written order by Client to OneIMS for request for work not defined by Section 4.2 of this CMSA.
“Writing”/”Written” includes handwritten, printed and mixed paper documents; electronic documents; and facsimiles.
Scope of the CMSA
2.1 OneIMS’s Work. This CMSA shall control and govern all Services undertaken by OneIMS and shall define the rights, obligations and liabilities of OneIMS and Client. Client agrees to provide OneIMS with access to its Website, technical data, know-how and proprietary information that is reasonably necessary for OneIMS to fulfill its obligations under this CMSA.
2.2 Subcontracting. OneIMS is free to delegate any Work under this CMSA to any third-party without receiving prior written approval of Client.
2.5 Exclusivity. This CMSA is a non-exclusive agreement between the Parties
Services, Obligations and Performance
4.1 Proposal. All Services provided by OneIMS under this CMSA will be described in one or more Proposals. The Proposal must specify the specific service or services ordered from OneIMS as found in Section 4.2 of this CMSA.
4.2 Services and Obligations. The Proposal must list one or more Services including Web Design and Maintenance, Search Engine Optimization and Pay Per Click. The obligations of OneIMS are limited to the obligations, duties, timing, and natural limitations for the service or services in the Proposal as described in 4.2(A)(1) for Web Design and Maintenance, 4.2(B)(1) for Search Engine Optimization, and 4.2(C)(1) for Pay Per Click. The obligations and duties of the Client are limited to the obligations and duties for the service or services in the Proposal as described in 4.2(A)(2) for Web Design and Maintenance, 4.2(B)(2) for Search Engine Optimization, and 4.2(C)(2) for Pay Per Click.
4.2(A)(1) One IMS Obligations for Web Design and Maintenance. If Web Design and Maintenance is listed in the Proposal, OneIMS agrees to the following:
(a) Domain Registration: OneIMS will secure a domain name for the Client at the Client’s request. Domain name will be registered through OneIMS and will be registered in the Client’s name and become property of the Client once final payment is made. If the Client already has a domain name, OneIMS will coordinate redirecting the address to the new host. Should the Client desire a specific domain name, which is already owned by another party, negotiations for said domain name must be undertaken by the Client.
(b) Text. Copy for web site must be supplied by the Client in a .doc format or .txt format via disk or email attachment. Otherwise, if not supplied on disk or via email, there will be an additional charge for typesetting and creating text.
(c) Photos. Photos and other misc. graphic images must be supplied by Client.
(d) Scanning. This CMSA contemplates scanning up to 20 images for the Client. It is contemplated that this will accommodate the needs of most Clients.
(e) Installation. Finished site will be hosted by OneIMS unless otherwise specified in writing. Hosting is not included in the contract price for website design unless specified in the Proposal. Hosting services require a separate Proposal with OneIMS or the hosting service of the Client’s choice. If OneIMS hosts Client’s Website, Client shall be billed on a monthly basis at a rate specified in the proposal. The Client agrees to select a hosting service, which allows OneIMS full access to the Client’s account via FTP. The Client will be solely responsible for any and all hosting service charges. If Client has no hosting company, OneIMS will assist Client in securing hosting. Client is responsible for all costs incurred with hosting fees.
(f) Cross Browser Compatibility. This CMSA contemplates the creation of a web site viewable by the newest versions of Firefox, Safari, Chrome and Microsoft Internet Explorer. Compatibility is defined herein as all critical elements of each page being viewable in both browsers. Client is aware that some advanced techniques on the Internet, however, may require a more recent browser version and brand or plug-in. Client is also aware that since new browsers are constantly being developed, the new browser versions may not be compatible to the site that has been developed by OneIMS. In the absence of a Maintenance Agreement, time spent to redesign a site for compatibility due to the introduction of a new browser version will be separately negotiated and in addition to the base price of this CMSA.
4.2(A)(2) Client Obligations for Web Design and Maintenance. If Web Design and Maintenance is listed in the Proposal, the Client agrees to:
(a) Provide OneIMS all necessary access to its Website for the purposes of uploading new pages and making changes for the purpose of optimization or approval to go through a third party.
(b) Authorize OneIMS use of all Client logos, trademarks, Website images, etc., for use in creating informational pages and any other uses as deemed necessary by OneIMS.
(c) The content of the web pages will be supplied by the Client and executed as specified by the Client. In case the Client desires additional standard web pages beyond the original number of pages discussed per the proposal, the new price for the additional pages will be negotiated.
(d) Where custom graphic work is requested that goes beyond the scope described, it will be billed at the hourly rate specified in the proposal. Reasonable additions or changes will be performed at no cost, but if the change or addition requires a significant amount of additional work, the hourly rate in the Proposal shall apply. OneIMS will determine what is “reasonable” in such instances.
(e). As outlined in the Proposal, Client agrees to pay OneIMS 50% of the total cost at the start of the CMSA. If Client cancels the CMSA at any point, OneIMS reserves the right to collect the remaining balance, or a reasonable fee for the work completed.
4.2(B)(1) Search Engine Optimization. If Search Engine Optimization (“SEO”) is listed in the Proposal, OneIMS agrees to the following:
(a) Research keywords and phrases to select appropriate, relevant search terms. Number of keywords will be specified in the Proposal.
(b) Edit various HTML tags and page text as necessary prior to submission to selected Search Engines.
(c) Create, as required, additional web pages for the purpose of “catching” keyword/phrase searches.
(e) Create positioning reports for Website and any associated pages showing rankings in the listed Search Engines and under which keywords.
(f) If established through a separate Work Order to this SEO, OneIMS will establish Advertising of certain Client materials on websites owned and operated by OneIMS for the purpose of delivering leads to Client and/or traffic to Client’s Website.
(g) If established through a separate Work Order to this SEO, OneIMS will provide a username and password for Client to access OneIMS dealer services. Client agrees not to share usernames and passwords with unauthorized users.
(i) Under the terms of this CMSA, the Client realizes the limitations of SEO and accepts and acknowledges the limitations of OneIMS over the Search Engines. Specifically, Client acknowledges and agrees OneIMS shall not be held liable or in any capacity responsible for any of the following limitations which accompany and are a part of Natural Law SEO:
(1) OneIMS has no control over the policies of Search Engines with respect to the type of sites and/or content that they accept currently or in the future. Client’s Website may be excluded from any directory at any time at the sole discretion of the Search Engine. Should Client’s Website be dropped from a respective Search Engine, OneIMS will resubmit those pages that have been dropped from the index.
(2) Due to the competitiveness of some keywords and phrases, ongoing changes in Search Engine ranking algorithms and other competitive factors, OneIMS does not guarantee top or any other position or consistent top ten (10) positions for any particular keyword, phrase or term.
(3) Client accepts and agrees that some Search Engines may take as long as two (2) to four (4) months, and in some cases longer, after submissions to list its Website.
(4) Some Search Engines stop accepting submissions for an indefinite period of time.
(5) Periodically, Search Engines drop listings for no reason and with no advanced warning. Often, these same listings reappear without additional submissions. Should the Website not reappear, OneIMS will re-submit the Website based on current policies of the Search Engine in question.
4.2(B)(2) Client Obligations for Search Engine Optimization. If Search Engine Optimization (“SEO”) is listed in the Proposal, the Client agrees to:
(a) Provide OneIMS all necessary access to its Website for the purposes of uploading new pages and making changes for the purpose of optimization or approval to go through a third party.
(b) Authorize OneIMS use of all Client logos, trademarks, Website images, etc., for use in creating informational pages and any other uses as deemed necessary by OneIMS for Search Engine positioning and optimization.
(c) If Client’s site is light in textual context, Client will provide additional relevant text context in electronic format for the purpose of creating additional web pages. As requested, Client agrees to provide content, for example 250 word synopses or descriptions about each of their keyword phrases.
(d) Client will be responsible for registration and renewal of any domain names chosen and purchased by Client through OneIMS’s domain registration system or through a third-party website.
(e) OneIMS is not responsible for any damage created by the Client or agent of the Client for independently edited or updated webpages after completion of the site.
(f) The Client agrees to select a web hosting service that allows OneIMS full access to the web site.
4.2(C)(1) Pay Per Click. If Pay Per Click is listed in the Proposal, OneIMS agrees to the following:
(a) OneIMS will research keywords most relevant to the Client’s business and create different ad groups based on the services offered by Client.
(b) OneIMS will create, with support of the client, compelling ad copies to maximize click through rate.
(c) Cost per click is assigned to ad groups based on search engine estimates.
(d) Daily campaign budget is assigned PPC campaign based on the Client’s monthly budget.
(e) Client is given an overview of the PPC campaign before it is set to go “live”.
(f) Regular optimization is performed on the Client’s account in order to ensure the Client is getting the most clicks and top positioning on search engines. Optimization includes and is not limited to adding and deleting keywords and ad copies, raising or reducing cost per click, raising or reducing the daily budget, etc. OneIMS tries it’s best to get Clients on the top of search engines, however, OneIMS does not guarantee top placement. Top placement is subject to several rules and regulations determined by the search engines themselves.
(g) OneIMS does not guarantee a conversion after a click is reported to the Client’s PPC ads. Conversion is subject to consumer behavior.
4.2(C)(2) Client Obligations for Pay Per Click. If Pay Per Click is listed in the Proposal, the Client agrees to:
(a) Client understands that prices are service fees and do not include the purchase of the sponsored listings. Any amount of money that Client wishes to go towards the sponsored listings purchases must be paid over and above the service fee. It is completely up to Client in regards to how much to budget in sponsored listing purchases every month.
(b) Client understands that if at anytime a search engine ceases to offer sponsored listings or, if at anytime for any reason a search engine refuses service to the company which you represent or refuses to provide a sponsored listing to this company, that OneIMS will not be held responsible. You also agree that such a refusal of service to this company by a search engine may also be grounds for termination of this CMSA by OneIMS.
(c) Client ensures that all websites are submitted for our services in Good Faith. This includes that the website is compliant with Search Engine content policy; that the submitter of the website is the owner, operator or authorized agent for the said website; the website/URL are functional and provide adequate content as to the services and/or products made available through the said website. Verification may be demanded if necessary.
(d) Price has already been negotiated with client and payment is described in a separate proposal. Client agrees to pay OneIMS 100% of the total cost at the start of the CMSA. This includes budget and service fee costs. If Client cancels the CMSA at any point, OneIMS will immediately cease all work for Client, and shall be reimbursed for time already put into work for Client. OneIMS will not reimburse the service fee, but will return whatever portion of the budget for sponsored listings that has not been used.
4.3 Additional Work. Upon mutual agreement and written consent of OneIMS and Client, Client may submit an Additional Proposal to OneIMS with or in addition to the Proposal that includes services not described in Section 4.2. The Additional Proposal must be reasonably related to the service or services selected in the Proposal and must reasonably describe the scope of the work obligations and includes, but is not limited to, display advertising, retargeting, inbound marketing, local search and social media. An Additional Proposal becomes binding on OneIMS only after an authorized representative of OneIMS has responded to Client in writing confirming the Additional Proposal and indicating the payment.. Once confirmed by OneIMS, the additional work in the Additional Proposal shall become part of the Proposal and all provisions of this CMSA pertaining to the Services in a Proposal shall apply to the Additional Proposal.
4.4 Performance. The manner and means for accomplishing the Services shall be determined by OneIMS. OneIMS is an independent contractor with the authority to control and direct the performance and supervision of the services and assigned work. It is expressly agreed that none of the personnel furnished by or on behalf of OneIMS shall be deemed employees, servants, agents or third-party contractors of Client. OneIMS shall perform in a professional manner the services as detailed in this CMSA, Proposal, and in any Additional Proposal. OneIMS agrees to perform in a diligent, efficient, competent and skillful manner commensurate with the industry standards and to devote resources as necessary to perform the services required under this CMSA. The time required will be outlined in the Proposal and is considered an estimate. OneIMS reserves the right to increase or decrease the timeframe for completion.
Terms of Payment
5.1 Pay Rates. OneIMS shall be compensated for its services at rates to be agreed to by the OneIMS and Client prior to entering this CMSA. The rates of pay shall be specified in the Proposal. Nothing herein shall be construed as providing for the sharing of profits or losses arising out of the efforts of any or both of the Parties. If the Parties cannot agree on applicable pay rates, then OneIMS has no duty to accept the Proposal or any proposed modification. Client agrees to reimburse OneIMS for any critical Client requested expenses necessary for the completion of the Services. If Client fails to fulfill its obligations under this CMSA and the work is not completed, the Client is obligated to pay for the time spent based on OneIMS’s current hourly rate.
5.2 Time of Payment. Time for payment must be specified in the Payment Schedule. If payment is specified as a standard one-time payment, 100% of the payment is required upon signing of this CMSA. If payment between Client and OneIMS are specified is monthly, such payments will go into effect upon signing and 100% of the payment must be paid prior to any services rendered.
5.3. Cancellation and Suspension. Client agrees that the payment for services cannot be retracted or refunded once the services have been provided. In the event the Client cancels the Proposal without a minimum of thirty (30) days notice before the services are complete or requests OneIMS’s services be suspended for more than sixty (60) consecutive days, Client must submit 100% of the payment agreed upon within thirty (30) days after such cancellation or suspension.
5.4 Types of Acceptable Payment. OneIMS will accept payments made by credit card, debit card or electronic transfer only unless agreed to in writing by Client and OneIMS.
5.5 Nonpayment. For payments not paid within (30) days of the date required in the Payment Schedule, OneIMS reserves the right to charge Client a late penalty charge of one and a half percent (1.5%) per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. In addition, OneIMS, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate the Services until such payment is received and may decide not to accept additional orders from and or/seek collection of all amounts due, including reasonable legal fees and costs of collections. OneIMS shall have no liability to Client for any such suspension or termination of Services, or non-acceptance of orders.
5.6 Disputed Payment. In the event Client is withholding payment due to OneIMS pursuant to this CMSA, upon resolution of any dispute in favor of the OneIMS, then Client shall pay to OneIMS within five (5) Days from the resolution of such dispute an equal amount to the amount withheld, together with interest on such amount at an annual rate of twelve percent (12%) or the maximum non-usurious rate, whichever is less, from and including the date withheld payment was originally due.
Term and Termination
6.1 Term of Agreement. This CMSA is valid for a period of three (3) months (the “Initial Term”) from the Effective Date and shall automatically renew monthly thereafter until thirty (30) days after any party provides written notice of termination.
6.2 Termination. This CMSA automatically terminates upon completion of the service or services in the Proposal. Either party may terminate this CMSA for convenience by providing at least (30) days prior Written Notice to the other. In the event of a material breach of this CMSA, the non-breaching party may elect to terminate the CMSA after reasonable notice of the breach and reasonable notice of its intention to terminate if the breaching party fails to cure the breach or otherwise satisfy the non-breaching party within ninety (90) days. A material breach includes, but is not limited to, failure to comply with Client Obligations as outlined in Article 4; refusal to pay any increased hourly rates, costs, and expenses; failure to follow OneIMS’s advice on any matter material to the service or service in the Service Notice; or if circumstances arise that would render OneIMS’s continuing representation unlawful or unethical.
6.3 Unpaid Charges at Termination. Upon termination of OneIMS’s services, whether terminated by the Client or by OneIMS, all unpaid charges are immediately due and payable to OneIMS.
6.4 Survival Beyond Termination. All provisions relating to audit, choice of law, venue, dispute resolution, indemnity, insurance, title and warranty, confidentiality, non-soliciation and intellectual property ownership shall survive any termination of this CMSA.
6.5 Title to Deliverables Upon Termination or Completion of Work. Upon payment in full to OneIMS of all sums owed to OneIMS hereunder, and upon Termination of this CMSA or completion of the service or services in the Proposal, whichever comes first, sole and exclusive world-wide rights, title, and interest in all Unique Client Content, intellectual property, documents, drawings, computer printouts, and samples developed by OneIMS shall vest in Client and be delivered to the Client in a timely manner; provided that Client shall not have right, title or interest in any information and knowledge known by OneIMS prior to disclosure by OneIMS to client and, except to the extent limited in Article 3.1, any knowledge of OneIMS of general application not specific to the service or services provided per the Proposal.
Indemnities, Liabilities, and Warranties
8.1 OneIMS Warranties and Liability. OneIMS warrants and represents that it possesses the special skill and professional competence, expertise and experience to undertake the obligations imposed by this CMSA and will utilize best practices in its design and implementation of theservices. OneIMS’s warranty obligations will be limited to the assignment to Client of all warranties and guarantees related to this CMSA and will not extend beyond the terms outlined in this CMSA. Notwithstanding anything to the contrary contained elsewhere herein, no member or employee of OneIMS shall be liable to the Client for any consequential, incidental, special, exemplary, indirect or punitive damages of any kind or character, including, but not limited to, loss of use, loss of profit, loss of revenue, loss of business, or lack of leads whenever arising under this CMSA or as a result of, relating to or in connection with the service or services in the Proposal governed by this CMSA however caused and regardless of legal theory or foreseeability, including but not limited to website downtime, the content of any web site or pages, technical malfunction, service provider failure, telecommunications failure, service interruption, computer error, loss of data, or other injury damage or disruption to client even if OneIMS has been alerted to the possibility of such damages. No claim shall be made by any member of either OneIMS or Client against the other, regardless of whether such claim is based or claimed to be based on negligence (including sole, joint, active, passive, concurrent or gross negligence), fault, breach of warranty, breach of contract, statute, strict liability or otherwise. OneIMS makes no warranty of merchantability of fitness for a particular purpose, including without limitation, the success of the services, the Performance of the Services, Uninterrupted operation, or error-free operation.
8.2 Client Warranties and Liability. Client agrees that any material submitted will not contain anything leading to an abusive or unethical use. Abusive and unethical materials and uses include, but are not limited to, pornography, obscenity, nudity, violations of privacy, computer viruses, harassment, any illegal activity, spamming, advocacy of an illegal activity, and any infringement of privacy. The entire risk as to the quality and performance of the Services is with the Client. Client accepts that, given the dynamic nature of all search engines, the Internet and competing entities, it is not possible for OneIMS to guarantee specific results of the Services.
8.3 Limitation of Liability: THE PARTIES AGREE THAT ANY AND ALL LIABILITY OF EACH TO THE OTHER FOR ANY AND ALL DAMAGES WHATSOEVER ARISING OUT OF OR IN ANY WAY RELATED TO THIS CMSA FROM ANY unintentional CAUSE, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, ERRORS, OMISSIONS, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY SHALL NOT, IN THE AGGREGATE, EXCEED THE FEES PAID BY CLIENT UNDER THIS CMSA.
8.4 Indemnification. Client agrees to indemnify and hold OneIMS and the owners and operators of OneIMS and its affiliates harmless from and against any losses, costs, damages or expense resulting from claims or actions arising out of or in connection with Client’s website content, elements furnished by the Client, Client’s breach of any agreement, representation or warranty hereunder, including, without limitation, claims for infringement of copyright or other intellectual property rights and violation of rights of privacy and publicity.
OneIMS and Client shall each procure and maintain, or cause to be procured and maintained, at the sole expense of each Party and for the duration of this CMSA insurance policies with financially responsible insurance companies, effective through primary and excess coverage, in amounts customary for the nature of this CMSA.
10.1 Neither party shall be liable to the other party for any delay in performance or any failure to perform any of its obligations (except payment obligations), under this CMSA during if the party’s performance is subject to an unforeseeable event beyond both party’s reasonable control, occurring without fault or negligence of either party including acts of nature, civil disorder, acts of war or armed conflict, acts of terrorism, curtailment of transportation facilities, strike, riot, or the intervention of any governmental authority that make it illegal or impossible for the party to perform its obligations under this CMSA (“Event of Force Majeure”).
10.2 The party experiencing the Event of Force Majeure must notify the other party with reasonable promptness of the existence of the Event of Force Majeure and the probable duration thereof, and shall provide the other party from time to time with correct information concerning the Event of Force Majeure. The party experiencing the Event of Force Majeure shall take all reasonable actions to remove the cause of Force Majeure.
3.1 Confidential Information. In the performance of the Services, Client and OneIMS may have access to Confidential Information, which may be designated as being confidential or which, under the circumstances surrounding disclosure, ought to be treated as confidential. Confidential information may not be shared with third parties unless such disclosure is to personnel of Client or OneIMS, including employees, agents and subcontractors, on a need-to-know basis in connection with its performance of this CMSA, so long as such personnel have agreed to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take the necessary precautions to maintain the confidentiality of Confidential Information of a like-kind nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. The foregoing shall not include information, which (a) was known by one party prior to its receipt from the other or is or becomes public knowledge without the fault of the recipient, (b) is received by the recipient from a source other than a party to this CMSA, or (c) a party is required to disclose in response to an order by a court or governmental agency, provided that advance notice of the disclosure is provided to other party.
3.2 Intellectual Property Ownership. Client retains full ownership of any intellectual property and Unique Client Content. The Client represents to OneIMS and unconditionally guarantees that any elements of text, graphics, photos, designs, trademarks or other artwork furnished to OneIMS are owned by the Client, or that the Client has permission from the rightful owner to use each of these elements.
13.3 Advertising and Publicity. Client hereby grants OneIMS a continuous, world-wide license to use and display Client’s name, marks, codes, drawings, specifications, case studies, intellectual property, and Unique Client Content in any advertising, press release, promotional effort or publicity of any kind unless the Client and OneIMS enter into a written agreement to the contrary. Client agrees to feature “Powered by OneIMS” on the product or products of the Services performed by OneIMS under the Proposal.
13.4 Non-Solicitation. During the term of this CMSA and for a period of one year thereafter, Client will not Recruit, directly or indirectly, any individual employed by OneIMS. If Client breaches this clause and hires a OneIMS employee, Client will pay to OneIMS two-hundred and fifty thousand dollars ($250,000) as a fee for the benefit obtained by Client and to compensate OneIMS for its expenses in hiring and training a replacement employee.
13.5 No Partnership. This CMSA is not intended by the parties to, and shall not constitute, create give effect to, or otherwise imply a joint venture, pooling agreement, partnership, or formal business organization of any kind between the parties.
13.6 Attorney’s Fees. If OneIMS prevails in a lawsuit, action, arbitration or other proceeding of any nature whatsoever is instituted in connection with any controversy arising out of this CMSA or to interpret or enforce any rights under this CMSA, OneIMS shall be entitled to reimbursement of reasonable attorney fees and costs incurred to enforce its rights under this CMSA.
13.7 Expenses. Each Party will pay their own respective costs and expenses incurred in connection with this CMSA and the transactions contemplated hereby.
13.8 Dispute Resolution. The Parties agree to resolve any and all disputes, claims or controversies arising out of or relating to this CMSA, whether in contract, tort, or otherwise through confidential, final and binding arbitration in Chicago, Illinois, in accordance with principals and procedures of JAMS, (formerly Judicial Arbitration and Mediation Services, Inc.) and per the decision of an accredited arbitrator acceptable to both parties. By agreeing to submit all disputes, claims and controversies to binding arbitration, each of the Parties expressly waives its rights to have such matters heard or tried in a court before a judge or jury or in any other tribunal. Any award shall be final, binding and conclusive upon the Parties, subject only to judicial review provided by statute, and a judgment rendered on the arbitration award may be entered in any state or federal court having jurisdiction thereof. Notwithstanding the foregoing, each Party agrees that before undertaking the aforementioned arbitration, they shall submit all disputes, claims or controversies to a mutually agreeable mediator in Chicago, IL in an attempt to informally resolve said disputes, claims or controversies without the need for arbitration.
13.9 Choice of Law. The Parties agree that any dispute or controversy arising from or relating to this CMSA and the resulting relationship between the parities; whether in contract, tort, or otherwise; whether preexisting, present or future; and including statutory, common law, and equitable claims between Client and OneIMS shall be governed by the laws of the state of Illinois, without regard to conflicts of law.
13.10 Service of Process. Each Party hereby authorizes and accepts service of process sufficient for personal jurisdiction in any action against it as contemplated by this paragraph by registered or certified mail, return receipt requested, postage prepaid, to its address for the giving of notices as set forth in this Article 13.25 of this CMSA.
13.11 Limitation Period. Neither party may institute any action in any form arising out of this CMSA more than one (1) years after the cause of action has arisen, or in the case of nonpayment, more than one (1) years from the due ate of the last payment.
13.12 Judgment Enforceability. Any final award rendered against a Party in any action or proceeding shall be conclusive as to the subject of such final award and may be enforced in other jurisdictions in any manner provided by law.
13.13 Offensive Material. OneIMS hereby reserves the right, at its sole discretion, to terminate this CMSA should it be determined that the Website involves or contains spam or offensive material. For purposes of this CMSA, offensive material includes content which is pornographic, illegal in the State of Illinois, racially, sexually, faith-based or gender insensitive, politically or otherwise inflammatory or that which the OneIMS determines is in poor taste. Should OneIMS determine that the Website contains Offensive Material, OneIMS will then send notice of termination to Client pursuant to the terms outlined in Article 13.25. It is also understood that the OneIMS will not publish information over the Internet which may be used by another party to harm another. OneIMS will not promote or advertise a pornography web site for the Client. OneIMS reserves the right to determine what is and is not pornography.
13.14 Succession and Assignment. This CMSA shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. The Client may not assign either this CMSA or any of its rights or interests hereunder without prior written approval of the other Party.
13.15 Severability. Any term or provision of this CMSA that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any situation in any other jurisdiction.
13.16 Amendments. This CMSA may not be modified or amended, except by a written document signed by all Parties hereto. The terms of this Article may not be waived or orally amended.
13.17 Waivers. The Parties may waive any of the conditions contained herein or any part of the obligations of the other Parties hereunder, but any such waiver shall be effective only if in writing and signed by the Party waiving such conditions or obligations. No waiver by any Party of any default, misrepresentation, or breach of warranty or covenant hereunder, whether intentional or not, shall be deemed to extend to any prior or subsequent default, misrepresentation, or breach of warranty or covenant hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence.
13.18 Updates. OneIMS reserves the right to update its CMSA at any time, effective upon posting an updated version located at firstname.lastname@example.org; however, Client’s rights and obligations shall be as provided in the version of the CMSA executed by Client or available to Client at the time of Client’s purchase of Services or, when applicable, Client’s renewal of Services.
13.19 Counterparts. If a signature block is appended hereto, this CMSA may be executed in counterparts, each of which shall be deemed an original, but all such counterparts shall together constitute one and the same instrument.
13.20 Headings. The descriptive headings contained in this Agreement are inserted for convenience only and will not control or affect the meaning or interpretation of any of the provisions hereof.
13.21 Construction and Interpretation. The Parties have participated jointly in the negotiation and drafting of this CMSA. In the event an ambiguity of intent or interpretation arises, this CMSA shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this CMSA. Any reference to any federal, state, local, or foreign statute or law shall be deemed also to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise. The singular number shall include the plural and the plural the singular, and any gender shall be applicable to all genders. The use of the words “herein”, “hereof”, “hereunder” and other similar compounds of the word “here” shall refer to this entire CMSA and not to any particular section, paragraph or provision. Section headings are for reference only and shall not affect the meaning or interpretation of this CMSA. The Parties intend that each representation, warranty, and covenant contained herein shall have independent significance. If any party has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty, or covenant relating to the same subject matter (regardless of the relative levels of specificity) which the Party has not breached shall not detract from or mitigate the fact that the Party is in breach of the first representation, warranty, or covenant.
13.22 Conflict. In the event of conflict between the terms of the CMSA, the Proposal, the Work Order Acceptance Response and the Work Order, the terms of this CMSA shall prevail absent a provision to the contrary in the Proposal or Work Order Acceptance Response that expressly provides certain terms and provisions therein shall control over certain terms and provisions in this CMSA and only to the extent in with they conflict with this CMSA.
13.23 No Third-Party Beneficiaries. This CMSA shall not confer any rights or remedies upon any Person other than the Parties and their respective successors and permitted assigns.
13.24 Parol Evidence. This CMSA sets forth the entire understanding and agreement of the Parties, and supersedes any and all prior written agreements or understandings between Parties, as to the subject matter of this CMSA. This CMSA may be amended or modified only in writing signed by both Parties.
(a) Generally. All notices, demands, or other communication of any type (herein collectively referred to as “Notices”) given in connection with this CMSA or in any way related to the transaction contracted for herein, will be void and of no effect unless given in accordance with the provisions of this Article.
(b) Notices. All Notices hereunder will be in writing and shall be addressed as follows (or at such other address for a Party as shall be specified by like notice):
If to OneIMS:
111 E Wacker Drive Suite 435
Chicago, IL 60601
If to Client, to Client’s last known address.
Any notice hereunder shall be deemed duly given (i) if delivered in person, on the day of such delivery, (ii) if by facsimile or email, on the day on which such facsimile or email was sent, provided that receipt is personally confirmed by telephone or email, and (iii) if by recognized next day courier service, on the first business day following the date of dispatch.
(a) Delivery. All Notices will be addressed to the last address on record for the applicable Parties. Either Party hereto may change the address for notice specified above by giving the other Party three (3) Days advance written notice of such change of address.
IN WITNESS WHEREOF, the Parties hereto have executed this CMSA by their duly authorized representative.