Air Blue Heating & Cooling, Inc. (the “Company”) and the customer (the “Customer”) identified on the front of the Invoice shall be collectively referred to herein as the “Parties.” The Agreement includes these Terms and Conditions (“Terms”) set forth herein and incorporates the Invoices to which the Terms are expressly referenced therein. The Invoice and Terms are collectively referred herein as the “Agreement.” These Terms and the Invoice constitute the complete and exclusive statement of the agreement between Company and Customer. Acceptance is expressly limited to these Terms and the terms expressly referenced in the Invoice. Any additional, inconsistent, or different terms or conditions contained in Customer’s purchase order or other documents submitted to Company by or on behalf of Customer at any time, whether before or after the date of the Agreement, are hereby expressly rejected and shall be deemed a material alteration of these Terms. These Terms shall be deemed accepted by Customer without any such additional, inconsistent, or different terms and conditions. In consideration of the mutual covenants and promises as set forth in the Agreement and other and good and valuable consideration received, the receipt and sufficiency of which is hereby acknowledged by the Parties, the Parties agree to be bound by the terms of the Agreement.
1. The Services:
1.1 Services; Change Orders. Company shall perform the Services identified and itemized in the Invoice in a professional and workmanlike manner consistent with generally accepted standards and practices within the HVAC industry. The Services do not include, and Company shall have no responsibility for, any carpentry, painting, plastering, patching, repairs, electrical work, plumbing, gas line work, structural modifications, or other work unless expressly identified in the applicable Invoice. Any alteration, deviation, addition, or modification to the Services (each, a “Change Order”) must be authorized by Customer in writing before the additional work is performed. For purposes of this Agreement, written authorization includes electronic mail, text message, or other electronic communication transmitted by Customer that reasonably identifies the requested change. Upon receipt of such authorization, Company may issue a revised or supplemental invoice (the “Change Order Invoice”) reflecting the revised scope of Services and associated costs. Customer agrees to pay all amounts set forth in the applicable Change Order Invoice in accordance with this Agreement.
1.2. Existing Conditions; Estimated Completion Dates. Company does not control equipment availability, manufacturer production schedules, shipping or delivery times, or the availability of third-party materials. Accordingly, all proposed completion dates are estimates only and are not guaranteed. Customer acknowledges that Company’s performance is dependent upon the condition of Customer’s existing HVAC equipment, insulation systems, hydronic piping systems, valves, refrigeration piping, electrical systems, gas systems, refrigerant lines, and any leaking refrigerant (collectively, the “Existing System”). Company does not warrant the condition or performance of the Existing System and assumes no responsibility for defects, failures, or deficiencies therein. Company likewise relies upon Customer’s existing Wi-Fi or wireless internet network for equipment requiring connectivity and assumes no responsibility for interruptions, failures, or deficiencies in such systems.
1.3. Hazardous Materials. The Services do not include the identification, testing, detection, abatement, encapsulation, containment, storage, removal, transportation, or disposal of hazardous or regulated substances, including, without limitation, asbestos, lead-based paint, mold, certain refrigerants or refrigerant oils, or other hazardous materials. If Company encounters any hazardous or regulated substance during performance of the Services, Company may immediately suspend or discontinue the Services until such condition has been remediated or otherwise eliminated to Company’s reasonable satisfaction. Any such suspension or discontinuance shall not constitute a breach of this Agreement, and Company shall be entitled to an equitable adjustment to the contract price and schedule for any resulting delay or additional costs.
1.4. Existing System Deficiencies. If Company is unable to perform the Services because of deficiencies or failures in the Existing System, Customer shall be responsible for all additional diagnostic charges, tune-up charges, repair costs, and other work reasonably necessary to render the Existing System operable so that Company may perform the Services.
1.5. Customer Refusal of Recommended Repairs; Delay Costs. If Customer directs Company not to perform repairs or corrective work that Company reasonably determines are necessary to safely or properly perform the Services, Company may suspend or decline to perform the affected Services without liability. In such event, Customer shall remain responsible for Company’s minimum service charge, all diagnostic fees, and all work performed through the date of suspension. If the Services are delayed, suspended, rescheduled, or otherwise impacted due to (a) the condition of the Existing System, (b) Customer’s refusal to authorize recommended repairs, (c) Customer’s failure to provide access to the premises, (d) Customer’s failure to timely provide required information or approvals, or (e) any other delay caused by Customer or conditions existing at the project site beyond Company’s reasonable control, Customer shall reimburse Company for all reasonable and documented costs incurred as a result of such delay, including, as applicable: (i) technician standby time billed at Company’s then-current hourly rates; (ii) mobilization and remobilization costs; (iii) equipment storage charges; (iv) additional travel expenses; and (v) all other actual documented costs reasonably incurred as a result of the delay.
1.6. Permits: Unless otherwise required by applicable law, Customer shall be responsible for all governmental permit fees, inspection fees, utility fees, street closure fees, and other governmental charges associated with the Services. To the extent applicable law requires Customer to obtain any permit, approval, authorization, easement, or governmental consent, Customer shall timely obtain the same at Customer’s sole cost and expense. Company shall not be responsible for delays resulting from the permitting or inspection process or Customer’s failure to timely obtain any required permit, approval, or authorization.
1.7. Sub-Contractor: The Customer acknowledges and agrees that the Company may hire a sub-contractor or sub-contractors to complete some or all of the work identified in the Invoice. The Customer acknowledges and agrees that any liability, loss or damages caused directly or indirectly by the services performed by the sub-contractor or sub-contractors will solely be the responsibility of the sub-contractor or sub-contractors and that the Customer will only seek recovery for the Customer’s loss or damages from the sub-contactor or sub-contractors and waives any right to seek recovery for the Customer’s loss or damages as a result of the sub-contractor’s or sub-contractors’ conduct from the Company.
1.8. Right of Termination: The Customer acknowledges and agrees that the Company has the right to terminate the Agreement for any reason, for cause or without cause, and the Company shall not be liable to the customer for damages in any form, including consequential, punitive or exemplary damages, for the Company’s termination of the Agreement.
2. Payment:
2.1. Payment Due. Unless otherwise stated in the applicable Invoice, payment for the Services shall be due upon completion of the Services or no later than seven (7) calendar days following substantial completion of the Services, whichever first occurs.
2.2. Event of Default. Customer shall be in default under this Agreement (an “Event of Default”) if Customer fails to timely pay any amount due under any Invoice, breaches its payment obligations under this Agreement, or otherwise breaches its obligations under these Terms.
2.3. Interest. Upon an Event of Default, all unpaid amounts shall bear interest at the rate of nine percent (9%) per annum, or the maximum rate permitted by applicable law if lower, calculated on the basis of the actual number of days elapsed over a three hundred sixty-five (365) day year, from the date payment became due until paid in full.
2.4. Suspension of Services. Upon an Event of Default, Company may, upon written notice to Customer, suspend performance of any remaining Services and withhold delivery of materials or equipment until all past-due amounts, together with accrued interest and any applicable charges, have been paid in full. Any suspension of the Services pursuant to this Section shall not constitute a breach of this Agreement, and Company shall not be liable for any resulting delay, damages, costs, or losses. Customer shall remain responsible for any reasonable costs incurred by Company as a result of such suspension, including remobilization costs.
2.5. Acceleration. Upon an Event of Default, all amounts then outstanding under this Agreement and any related Invoices, whether or not otherwise due, shall immediately become due and payable without further notice or demand.
2.6. Returned Payments. Any payment returned, dishonored, or rejected for insufficient funds, a stop-payment order, or any other reason shall be subject to a returned payment fee of Fifty Dollars ($50.00), or the maximum amount permitted by applicable law, together with any bank charges or collection costs incurred by Company.
2.7. Collection Costs. Upon an Event of Default, Customer shall reimburse Company for all costs and expenses incurred in collecting amounts due or enforcing this Agreement, including court costs, filing fees, mechanic’s lien preparation and enforcement costs, reasonable attorneys’ fees, paralegal fees, expert fees, collection agency fees, and all other legal expenses.
2.8. Mechanic’s Lien Rights. Nothing contained in this Agreement shall be construed as limiting, impairing, or waiving Company’s rights under the Illinois Mechanics Lien Act or any similar applicable law. Company expressly reserves all statutory and equitable lien rights and remedies available to secure payment for the Services.
2.9. No Waiver. Company’s acceptance of partial payment, late payment, or any payment less than the full amount due shall not constitute an accord and satisfaction, nor shall it waive any Event of Default or any right or remedy available to Company under this Agreement or applicable law.
2.10. Taxes. Customer shall be responsible for all applicable sales, use, excise, permit, inspection, and other governmental taxes, fees, and assessments arising out of or relating to the Services, excluding taxes imposed on Company’s net income. Any such amounts paid by Company on Customer’s behalf shall be reimbursed by Customer upon demand.
3. Limitation of Liability and Waiver: COMPANY SHALL HAVE NO RESPONSIBILITY FOR LIABILITY TO CUSTOMER, AND CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS AGAINST COMPANY, WITH RESPECT TO ANY OF THE FOLLOWING: (A) ANY LIABILITY, LOSS OR DAMAGE CAUSED DIRECTLY OR INDIRECTLY BY THE SERVICES PERFORMED BY COMPANY, (B) ANY RISKS RELATED TO THE SERVICES THERETO; (C) ANY WORK PERFORMED BY ANY SUBCONTRACTORS; AND (D) ANY LOSSES, DAMAGES, DELAYS, OR ADDITIONAL COSTS ARISING FROM OR RELATED TO THE EXISTING SYSTEM, CONCEALED CONDITIONS, HAZARDOUS MATERIALS, DEFICIENCIES IN CUSTOMER’S PROPERTY, CUSTOMER’S FAILURE TO COMPLY WITH THIS AGREEMENT, CUSTOMER’S INSTRUCTIONS, OR CONDITIONS BEYOND COMPANY’S REASONABLE CONTROL, EXCEPT TO THE EXTENT CAUSED BY COMPANY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.
3.1. Limitation of Liability.TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SERVICES, THE EQUIPMENT, OR ANY ACT OR OMISSION OF COMPANY, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR OTHERWISE, SHALL NOT EXCEED 50% TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENT.
3.2. Excluded Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF DATA, DIMINUTION IN VALUE, OR BUSINESS INTERRUPTION, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
3.3. Waiver. The failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of that provision or of the right to thereafter enforce such provision or any other provision of this Agreement
4. Customer Indemnification.
4.1 To the fullest extent permitted by applicable law, Customer shall indemnify, defend, and hold harmless Company and its officers, directors, owners, shareholders, members, managers, employees, agents, affiliates, successors, assigns, and subcontractors (collectively, the “Company Indemnified Parties”) from and against any and all third-party claims, demands, actions, causes of action, suits, investigations, liabilities, damages, losses, judgments, fines, penalties, costs, and expenses of every kind and nature, including reasonable attorneys’ fees, paralegal fees, expert witness fees, court costs, settlement costs, and expenses of investigation and defense (collectively, “Losses”), to the extent arising out of or relating to: (a) Customer’s breach of this Agreement or any representation, warranty, or covenant contained herein; (b) the negligence, gross negligence, willful misconduct, or other wrongful acts or omissions of Customer or Customer’s employees, agents, contractors, invitees, tenants, or representatives; (c) Customer’s use, operation, maintenance, misuse, abuse, alteration, modification, repair, replacement, or servicing of any equipment or Services following substantial completion of the Services; (d) the existence, release, storage, transportation, handling, remediation, or disposal of hazardous materials, hazardous substances, asbestos, lead-based paint, mold, contaminated soils, refrigerants, or other regulated materials located at or affecting the project site, except to the extent introduced solely by Company; (e) Customer’s failure to obtain any permit, approval, authorization, easement, license, or governmental consent that Customer is responsible for obtaining under this Agreement or applicable law; (f) the accuracy, adequacy, or sufficiency of any plans, specifications, drawings, designs, measurements, information, instructions, or other materials provided or approved by Customer; (g) Customer’s ownership, possession, operation, maintenance, or condition of the property or Existing System, except to the extent caused by Company’s gross negligence, willful misconduct, or fraud; (h) any maintenance, inspection, diagnosis, repair, service, modification, alteration, replacement, adjustment, or other work performed on the equipment or Services by any person or entity other than Company or Company’s authorized representatives after Company’s installation or completion of the Services, including any resulting equipment failure, property damage, bodily injury, or loss of warranty coverage; or (i) the Services, including, without limitation, indemnifying and defending Company against, and holding the harmless Company from Claims that arise out of Company’s own negligence.
4.2. Exclusions. Notwithstanding anything contained in this Agreement to the contrary, Customer shall have no obligation to indemnify or defend any Company Indemnified Party to the extent a final, non-appealable judgment of a court of competent jurisdiction determines that the applicable Losses were directly caused by the Company’s gross negligence, willful misconduct, fraud, or any liability that cannot be indemnified under applicable law.
4.3. Defense of Claims. Company shall promptly notify Customer of any claim for which indemnification is sought; provided, however, that any delay in providing such notice shall not relieve Customer of its indemnification obligations except to the extent Customer is materially prejudiced by such delay. Customer shall have the right to assume the defense of any such claim with counsel reasonably acceptable to Company. Company may participate in the defense of any claim through counsel of its own choosing, at its own expense. Customer shall not settle any claim that imposes any liability, admission of fault, or obligation upon Company without Company’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.
4.4. Survival. Customer’s obligations under this Section shall survive the completion of the Services, termination of this Agreement, final payment, and expiration of any warranty period, and shall remain in effect for the maximum period permitted by applicable law.
5. Warranties.
5.1 Limited All-Labor Warranty. Subject to the terms, conditions, exclusions, and limitations of this Agreement, Company provides a limited labor warranty (the “All-Labor Warranty”) solely with respect to original equipment manufacturer (“OEM”) HVAC equipment installed by Company and specifically identified in the applicable Invoice. The All-Labor Warranty covers only the labor necessary to repair defects in Company’s installation of the covered OEM equipment during the applicable warranty period. Labor and any manufacturer-provided parts warranties apply only to OEM HVAC equipment. Accessories, non-OEM equipment, smart home devices, controls not supplied by Company, indoor air quality accessories, non-HVAC components, and any other equipment or products not specifically identified in the applicable Invoice as covered are expressly excluded from the All-Labor Warranty unless otherwise expressly agreed to by Company in writing. The All-Labor Warranty applies only to the labor associated with the covered equipment identified in the applicable Invoice and does not include, unless expressly stated otherwise in the Invoice: (a) electrical work; (b) gas piping or gas line work; (c) plumbing work; (d) structural work or structural modifications; (e) supports or structural reinforcement; (f) crane or lifting services; (g) testing and balancing; (h) drywall, carpentry, painting, plastering, patching, or finish work; (i) refrigerant not otherwise covered by the equipment manufacturer; (j) equipment or materials supplied by others; or (k) any other work not specifically identified as covered by the All-Labor Warranty. Any labor, materials, or services not covered by the All-Labor Warranty shall be billed separately at Company’s then-current rates
5.2. Warranty Period. Unless otherwise expressly stated in the applicable Invoice: (a) Commercial HVAC installations shall include a twelve (12) month limited All-Labor Warranty commencing upon substantial completion of the Services; (b) CMC Projects shall include an eighteen (18) month limited All-Labor Warranty commencing upon substantial completion of the Services.
Manufacturer warranties, if any, are provided solely by the applicable manufacturer and are subject to the manufacturer’s terms and conditions. Company does not independently warrant manufacturer-supplied equipment or components except as expressly provided in this Agreement.
5.3. Conditions of Warranty. The All-Labor Warranty is expressly conditioned upon Customer’s full compliance with this Agreement. To maintain the All-Labor Warranty, Customer must: (a) timely pay all amounts due under this Agreement relating to the covered equipment; (b) have the covered equipment inspected and maintained by Company no less than twice each calendar year, with one maintenance visit occurring during the heating season (fall or winter) and one maintenance visit occurring during the cooling season (spring or summer); (c) operate the equipment in accordance with the manufacturer’s recommendations and Company’s instructions; and (d) promptly notify Company of any suspected malfunction before permitting additional damage to occur. Customer shall provide Company with reasonable access to inspect the equipment and verify compliance with the foregoing requirements before any warranty work is performed.
5.4. Exclusive Service Requirement. The All-Labor Warranty is provided in reliance upon Company’s ability to monitor, inspect, maintain, and service the covered equipment throughout the warranty period. Accordingly, the All-Labor Warranty shall immediately terminate and become void if, without Company’s prior written consent, Customer permits any person or entity other than Company to perform any maintenance, inspection, diagnosis, testing, repair, replacement, modification, alteration, adjustment, calibration, servicing, or other work of any kind on the covered equipment during the warranty period. Customer acknowledges that Company cannot verify the quality, methods, workmanship, materials, or parts utilized by third parties and therefore cannot assume responsibility for equipment that has been serviced or altered by others.
5.5. Third-Party Work. Customer acknowledges and agrees that maintenance, inspection, diagnosis, repair, servicing, modification, alteration, replacement, adjustment, calibration, or any other work performed by any person or entity other than Company may materially affect the operation, efficiency, safety, reliability, and performance of the covered equipment. Accordingly, Customer further agrees that the indemnification obligations set forth in Sectio 7 shall apply to any claims, damages, liabilities, losses, costs, or expenses arising out of or relating to any such third-party work performed on the covered equipment.
5.6. Warranty Exclusions. The All-Labor Warranty does not cover: (a) normal wear and tear; (b) abuse, misuse, neglect, accidents, vandalism, or acts of God; (c) improper operation or failure to follow manufacturer’s operating instructions; (d) damage caused by existing conditions at the Property; (e) inadequate electrical service, gas service, drainage, ventilation, or other utility deficiencies; (f) failures resulting from Customer’s Existing System; (g) manufacturer defects covered exclusively under the manufacturer’s warranty; (h) consumable items; (i) refrigerant leaks or refrigerant replacement unless otherwise expressly covered in writing; (j) cosmetic conditions that do not impair operation; or (k) damage resulting from work performed by any third party.
5.7. Events Voiding Warranty. Without limiting any other provision of this Agreement, the All-Labor Warranty shall immediately terminate and become void if: (a) Customer fails to timely pay any Invoice relating to the covered equipment; (b) Customer fails to maintain the equipment in accordance with Section 8.2; (c) Customer permits any third party to perform maintenance, inspection, diagnosis, repair, servicing, modification, replacement, alteration, adjustment, calibration, or any other work on the covered equipment without Company’s prior written consent; (d) Customer relocates, removes, modifies, or alters the equipment; (e) Customer fails to provide Company reasonable access to inspect or perform warranty work; (f) Customer operates the equipment contrary to manufacturer’s recommendations or Company’s instructions; or (g) Customer otherwise materially breaches this Agreement.
For CMC Projects, the eighteen (18) month limited warranty covers only qualifying warranty labor. Preventative maintenance visits during the warranty period are not included and shall be billed separately at Company’s then-current rates unless otherwise expressly provided in a separate written maintenance agreement.
5.8. Warranty Claims and Notice. Customer shall inspect the covered equipment upon completion of the Services and shall promptly notify Company of any alleged warranty issue. As a condition precedent to any claim under the All-Labor Warranty, Customer must provide Company with written notice of the claimed warranty defect within ten (10) business days after Customer first discovers, or reasonably should have discovered, the condition giving rise to the warranty claim. Such notice shall reasonably describe the nature of the claimed defect and identify the affected equipment. Customer shall provide Company with a reasonable opportunity to inspect the equipment and perform any warranty work before Customer authorizes or permits any third party to inspect, diagnose, repair, modify, replace, or otherwise perform work on the equipment. Failure to provide timely written notice, failure to provide Company a reasonable opportunity to inspect and perform warranty work, or permitting a third party to perform work on the covered equipment before Company has had a reasonable opportunity to respond shall constitute a waiver of the applicable warranty claim and shall immediately void the All-Labor Warranty with respect to the affected equipment, except to the extent prohibited by applicable law. Customer shall take all commercially reasonable steps to mitigate any damage resulting from the claimed defect and shall discontinue operation of the affected equipment if continued operation would reasonably be expected to cause additional damage. Company shall not be responsible for any additional damage resulting from Customer’s continued operation of equipment after discovery of a suspected defect.
5.9. Disclaimer of Other Express Warranties.EXCEPT FOR THE EXPRESS ALL-LABOR WARRANTY SET FORTH IN THIS SECTION, COMPANY DISCLAIMS ALL OTHER EXPRESS WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
5.10. Disclaimer of Implied Warranties. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY, WORKMANLIKE PERFORMANCE (TO THE EXTENT DISCLAIMABLE), TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
Customer acknowledges that any manufacturer warranties applicable to equipment are provided solely by the applicable manufacturer and not by Company unless expressly assumed by Company in writing.
5.11. Exclusive Remedy. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM ARISING UNDER THE ALL-LABOR WARRANTY SHALL BE REPAIR OR REPLACEMENT OF THE COVERED LABOR, AT COMPANY’S SOLE OPTION. THE WARRANTIES SET FORTH IN THIS SECTION ARE SUBJECT TO THE LIMITATIONS OF LIABILITY CONTAINED IN SECTION 6 OF THIS AGREEMENT.
5.12. Duty to Mitigate. Customer shall use commercially reasonable efforts to mitigate any damages, losses, or additional costs arising out of any equipment malfunction, alleged defect, or interruption in the Services. Customer shall immediately discontinue operation of any equipment that Customer knows or reasonably should know is malfunctioning if continued operation is likely to cause additional damage. Company shall not be responsible for any damages or losses that could have been reasonably avoided through Customer’s timely mitigation efforts.
6. Customer Access and Site Conditions. Customer shall provide Company and its employees, agents, and subcontractors with timely, safe, and uninterrupted access to the project site and all areas reasonably necessary to perform the Services. Customer shall ensure that all necessary utilities, including electrical power, water, gas, internet connectivity (if applicable), and other services required to perform the Services are available and operational. Customer shall further provide a safe work environment and promptly remove or disclose any known hazards that may affect the performance of the Services. Company shall not be responsible for delays, additional costs, or damages resulting from Customer’s failure to provide access, utilities, or safe working conditions, and Customer shall reimburse Company for all reasonable and documented costs incurred as a result thereof.
7 Choice of Law, Jurisdiction, Venue, and Waiver of Trial By Jury: The Agreement shall be deemed to have been negotiated and entered into within the State of Illinois. Accordingly, except to the extent, if any, that they are preempted by Federal Law, the laws of the State of Illinois shall govern the construction and interpretation of the Agreement. The Parties, having been represented by counsel, or having had the opportunity to seek the advice of counsel, each knowingly and voluntarily waive any right to a trial by a jury in any action or proceeding relating to the Agreement and the Services.
8. Consent to Jurisdiction and Venue: Any and all actions or proceedings in any way arising out of, or relating to, the Services or the Agreement, must be brought and litigated in the Circuit Court of Cook County, State of Illinois. The Parties hereby consent and submit to the jurisdiction and venue of any court located within Cook County, Illinois, and waives any argument that the Circuit Court of Cook County, State of Illinois lacks personal or subject matter jurisdiction or is an improper venue. The above venue provision will be inapplicable to actions in which Company chooses to proceed with a claim to foreclose a Mechanics Lien under the Illinois Mechanics Lien Act. The Mechanics Lien claim will be brought in the venue appropriate under Illinois law.
9. Attorney’s Fees and Costs. If Company is the prevailing party in any court action against Customer, arbitration proceeding, or other alternative dispute resolution procedure with respect to any claim or dispute relating to, or arising out of, the Agreement or related to Company’s Services, Company shall be entitled to recover from Customer Company’s attorney’s fees, costs, and expenses in connection with the dispute.
10. Severability. It is the Parties’ intent that the Agreement be enforced to the fullest extent as allowed by law and that if any provision of the Agreement is found to be unenforceable by any court or agency of competent jurisdiction, the remaining provisions remain in full force and effect.
Force Majeure. The Parties shall not be liable under the Agreement for their failure or delay in performing their obligations herein where such failure or delay in performing is by reason of natural disaster, pandemic, endemic, closing of the public highways, government interference, or any similar event or occurrence beyond the reasonable control of the affected Party, and the Parties shall not have any liability to each other for any resulting delay in performance or failure to perform provided that the Parties shall use their best efforts to minimize such force majeure period.
11. Time is of the Essence. Time is of the essence with respect to each and every covenant, agreement, and obligation of Customer under the Agreement.
12. Remedies. Nothing in this Agreement will prohibit Company from pursuing any other remedies at law or in equity, including, but not limited to claims for a Mechanics Lien.
13. Execution of this Agreement. Customer acknowledges and represents that the individual who executes the Invoice has agreed to the Terms set forth in the Agreement and that individual has the authority to do so, and that Customer acknowledges, represents, and warrants that Customer has read and fully understands each and every provision of the Agreement and has had sufficient time and opportunity to consult with Customer’s own legal counsel prior to executing this Agreement.
14. Counterparts. The Agreement is considered executed as of the execution of the Invoice and that the Invoice may be executed in any number of counterparts, including, but not limited to facsimile or by attachment to electronic mail, each of which shall be deemed to be a duplicate of the original hereof.
15. Notices. Notices and all other communications provided for in this Agreement must be in writing and will be deemed to have been duly given (i) on the date of delivery, if delivered by hand; or (ii) on the date of transmission, if delivered by electronic mail.
16. Construction. The headings and titles of the Sections of this Agreement are not a part of this Agreement but are for convenience only and are not intended to define, limit or construe the contents of the various Sections. The term “including” means “including, but not limited to,” unless the context clearly indicates otherwise. Each and every exhibit to this Agreement shall be deemed incorporated it to and be a part of this Agreement by reference thereto
17. No Creation of Partnership or Joint Venture.None of the terms in the Agreement are intended to create or imply the creation of a Partnership or Joint Venture between Company and Customer and any other entity. Company and Customer have elected to contract with each other as separate and distinct entities which do not have any shared control or interest in each other’s operations, ownership, property, profits, and losses.
