Terms of Service

​Revision Date:  April 25, 2020

  1. NMI’s Business. Negotiation Matters Inc., an Illinois corporation, (“NMI”), is engaged in the business of helping its clients reduce their business expenses by reviewing and analyzing those expenses, suggesting vendors, equipment and business practices by which NMI’s clients might reduce those expenses, and negotiating expense reductions for its clients with its clients’ existing vendors or with new vendors identified by NMI, Client, or a third party (“NMI’s Services”).

  2. Project, SOW, and the Parties. Each separate transaction between NMI and Client for NMI’s Services is referred to herein as a “Project”. NMI and Client shall enter into a Statement of Work (“SOW”) for each Project. NMI’s Services for each Project shall involve Client’s expenses listed within the SOW (the “Targeted Expenses”). “Client” shall be whoever is identified as the Client by the SOW. As used herein or within a SOW, a “party” means and refers to NMI or Client, and “parties” means and refers to NMI and Client. 

  3. Project Contract. For each Project, these Terms of Service and the SOW for that Project are together referred to herein and constitute the “Project Contract”. The date of a Project and the date of the Project Contract for that Project shall be the date specified by the SOW for that Project (the “Effective Date”).

  4. Entire Agreement. Each Project Contract shall constitute a separate agreement between the parties. For each Project: (a) the Project Contract alone shall contain and shall constitute the final, entire, complete, and exclusive statement of the parties’ agreement, regarding that Project, (b) the Project Contract shall supersede all prior and contemporaneous negotiations, representations, and other agreements, if any, of any kind, whether electronic, written, or oral, between the parties regarding that Project, (c) no act or other conduct by or for either party, including any order, quotation, request, proposal, acknowledgment, sale, acceptance, rejection, or use of NMI’s Services, is intended by either party as its agreement or consent to anything other than as expressly set forth within the Project Contract, and (d) the Project Contract may not be explained or supplemented by a party’s course of performance, the parties’ course of dealing, usage of trade, or industry custom. These Terms of Service shall supersede and govern any ambiguity or conflict between a provision of a SOW and a provision of these Terms of Service.

  5. Targeted Expense Information. By the date required by the SOW, Client shall sign and deliver to NMI a copy of NMI’s customary written authorization (“Targeted Expense Authorization”) by which NMI can obtain information concerning Client, concerning the Targeted Expenses from Client’s vendors listed within the Targeted Expense Authorization (one or more of whom is a “Targeted Vendor”), and by which NMI can, on Client’s behalf, negotiate price reductions with the Targeted Vendors and with new vendors identified by NMI. Client shall also give or make accessible to NMI the following “Targeted Expense Information” within 7 calendar days after NMI’s request: electronic copies of Client’s agreements, invoices, purchase orders, quotations, and similar records pertinent to the Targeted Expenses or the Targeted Vendors (one or more of which are “Targeted Expense Bills”) for the time period requested by NMI and, (b) such other information and access to Client’s personnel that NMI requests to enable NMI to analyze the Targeted Expenses, the Targeted Vendors, and the Targeted Expense Bills.

  6. Subcontractors. NMI may engage one or more third parties to provide NMI’s Services to whatever extent NMI desires and without notifying Client (one or more of whom are “NMI’s Subcontractors”).

  7. Expense Analysis and Expense Reduction Analysis. By the dates provided by the SOW or if no such dates, by the time provided by these Terms of Service, NMI shall deliver to Client the following written reports: (a) First, a written Expense Analysis, in which NMI shall identify the Targeted Vendors, the amount of the Targeted Expenses, and, if applicable, the other expenses Client incurs, the equipment Client uses, and the tasks Client performs to utilize the Targeted Vendors.  Within 7 calendar days after NMI delivers the Expense Analysis, Client shall inform NMI of the accuracy of the Expense Analysis or Client shall contact NMI with Client’s reasonable questions or reasonable disputes regarding the Expense Analysis, which the parties shall in good faith attempt resolve during the next 7 calendar days. NMI may conclusively assume that the contents of the Expense Analysis are accurate and acceptable to Client if Client does not otherwise timely inform NMI. (b) Next, a written analysis (“Expense Reduction Analysis”) stating NMI’s estimated reduction of the Targeted Expenses (the “Estimated Expense Savings”), in which NMI shall identify: (i) the vendors that Client should engage, and (ii) if applicable, the business practices that Client should implement and the equipment Client should purchase or lease. The vendors identified in NMI’s Expense Reduction Analysis might include one or more Targeted Vendors or one or more new vendors (those Targeted Vendors and new vendors are the “Identified Vendors”).

  8. Implementation of the Expense Reduction Analysis. Client may, at its sole expense, investigate the qualifications and abilities of any Identified Vendor listed within an Expense Reduction Analysis that estimates a reduction of Targeted Expenses (a “Successful Expense Reduction Analysis”) within the sooner of the time period provided by the SOW or before the deadline required by the Identified Vendor Agreements (defined below), or within 30 calendar days after Client receives a Successful Expense Reduction Analysis absent any such time period. Client shall not unreasonably reject an Identified Vendor and Client shall not unreasonably reject or unreasonably decline to implement a Successful Expense Reduction Analysis. Within the sooner of the time period provided by the SOW or as required by the Identified Vendor Agreements (defined below) after Client receives a Successful Expense Reduction Analysis, or within 30 calendar days after such receipt absent any such time periods, Client shall do the following to implement a Successful Expense Reduction Analysis: (a) Client shall enter into the agreements presented by NMI with the Identified Vendors for the Targeted Expense Savings (“Identified Vendor Agreements”), (b) Client shall fully perform the Identified Vendor Agreements, including signing and delivering whatever other agreements and other documents are required by the Identified Vendor Agreements and purchasing or leasing equipment, and (c) Client shall implement all of NMI’s other suggested business practices recommended by the Expense Reduction Analysis.

  9. Identified Vendor Invoices. On NMI’s demand Client shall immediately give NMI any invoice that Client receives from an Identified Vendor with respect to an Identified Vendor Agreement between Client and an Identified Vendor (one or more of which are “Identified Vendor Invoices”) if the Identified Vendor has not delivered a copy of that Identified Vendor Invoice to NMI.

  10. Payment for NMI’s Services. If, as required by these Terms of Service, Client implements a Successful Expense Reduction Analysis and Client delivers copies of the Identified Vendor Invoices to NMI, shall pay NMI as required by the Billing Option that Client selected within the SOW.

  11. Minimum Payment. (a) Whichever of the following amounts is the highest shall constitute the “Minimum Payment” for each Project: (i) the number of hours NMI and NMI’s Subcontractors worked to provide NMI’s Services multiplied by NMI’s hourly rate indicated by the SOW (“NMI’s Hourly Compensation”), multiplied by the number of hours NMI and NMI’s Subcontractors worked on the Project, or (ii) forty percent of the monthly Targeted Expense Savings estimated by the Successful Expense Reduction Analysis, multiplied by 36. (b) Client shall pay NMI the Minimum Payment on NMI’s demand, under the circumstances required by these Terms of Service and under any of the following additional circumstances: (i) Client does not timely give NMI a signed Targeted Expense Authorization, (ii) Client does not timely give NMI all the Targeted Expense Information, (iii) Client’s questions or disputes regarding an Expense Analysis are not reasonable, (iv) Client does not in good faith attempt to resolve Client’s reasonable questions or reasonable disputes regarding an Expense Analysis, (v) Client unreasonably rejects an Identified Vendor, (vi) Client unreasonably rejects or unreasoanbly declines to implement a Successful Expense Reduction Analysis, (vii) Client does not timely and fully implement a Successful Expense Reduction Analysis that Client has not reasonably rejected, or (viii) Client does not deliver copies of Identified Vendor Invoices to NMI as required by these Terms of Service.

  12. Expenses. For each Project, on NMI’s request Client shall pay NMI in advance or remiburse NMI for all the expenses for out of travel, meals, and lodging that NMI or NMI’s Subcontractors incur to provide NMI’s Services away from their principal places of business, and for all supplies and equipment that NMI or NMI’s Subcontractors purchase or lease specifically for the Project. Any unused supplies and equipment that NMI or NMI’s Subcontractors purchase for a Project shall be the property of Client, which NMI shall deliver to Client in their AS IS condition, at Client’s expense and at Client’s request following NMI’s completion of the Project and following NMI’s receipt from Client of all the amounts then due and owing for the Project.

  13. Confidentiality. The following shall apply from and after the Effective Date for each Project: (a) Except to provide NMI’s Services for Client, NMI shall not use or disclose any Targeted Expense Information, Client’s relationships with Targeted Vendors or Identified Vendors, the contents of any Targeted Expense Bill, the contents of the Expense Reduction Analysis or the Successful Expense Reduction Analysis, or any other information that Client discloses to NMI and designates in writing as confidential at or before the time of  disclosure. However, NMI may solicit Targeted Vendors and Identified Vendors to provide NMI’s Services for any third party. (b) Client shall not use or disclose the contents of the Expense Reduction Analysis or the Successful Expense Reduction Analysis except as necessary to implement a Successful Expense Reduction Analysis as required by these Terms of Service. (c) The parties shall not use or disclose the contents of any SOW other than in connection with NMI’s Services. (d) The foregoing restrictions shall not prevent a party from using or disclosing the foregoing information: (i) to the extent the information is known by the general public other than due to a party’s disclosure contrary to these Terms of Service, (ii) as necessary to enforce a Project Contract, or (iii) as necessary to comply with a subpoena or order of any court, administrative agency, or other government authority.

  14. Unauthorized Use or Disclosure. If Client uses or discloses an Expense Reduction Analysis or a Successful Expense Reduction Analysis other than as permitted by these Terms of Service, on NMI’s demand Client shall pay NMI the Minimum Payment for the Project that pertains to the Expense Reduction Analysis or the Successful Expense Reduction Analysis.

  15. Force Majeure. Notwithstanding the SOW, NMI’s time to deliver an Expense Analysis, and NMI’s deadline to negotiate expense reductions with the Identified Vendors, if delayed beyond the due date within the SOW due to force majeure, i.e., circumstances not caused by NMI and beyond NMI’s control, including delays caused by Client, any Targeted Vendor, any Identified Vendor, or the order of any government agency or authority shall be reasonably extended until force majeure ends, plus the additional time NMI requires to adjust and coordinate the work schedules of NMI, Client, the Targeted Vendors, the Identified Vendors, NMI’s Subcontractors, and other third parties (the “Force Majeure Extension Period”).

  16. Cancellation. Upon the cancellation of a Project by Client or NMI as permitted below, NMI shall have no obligation to further provide NMI’s Services for that Project.

    1. Cancellation by Client Due to NMI’s Noncompletion. If NMI does not deliver the Expense Analysis or the Expense Reduction Analysis within 120 calendar days after the Force Majeure Extension Period ends, if applicable, or within 120 calendar days after the latest Project deadline for a reason other than force majeure (“NMI’s Noncompletion”), Client may cancel the Project by notice to NMI during the 14 calendar day period starting on the 121st calendar day after the delay (the “Project Cancellation Period”). Upon Client’s cancellation of a Project within the Project Cancellation Period, and as Client’s exclusive remedy, Client shall not owe NMI any amount for the Project and NMI shall not owe Client any amount for Client’s damages. If Client does not cancel a Project within the Project Cancellation Period, NMI’s time to perform shall additionally extend until NMI is able to perform the Project under the circumstances, including adjusting and coordinating the work schedules of NMI, Client, the Targeted Vendors, the Identified Vendors, NMI’s Subcontractors, and other third parties (the “Additional Extension”). If NMI does not deliver the Expense Analysis or the Expense Reduction Analysis within 30 calendar days after the end of the Additional Extension, Client may thereafter cancel the Project for NMI’s Noncompletion, and Client’s exclusive remedies shall be the remedies provided above for Customer’s cancellation of the Project within the Project Cancellation Period.

    2. Cancellation By Client Other than For NMI’s Noncompletion.  If Client cancels a Project other than for NMI’s Noncompletion before Client delivers the Successful Expense Reduction Analysis, on NMI’s demand Client shall pay NMI an amount equal to NMI’s Hourly Compensation at the time of the cancellation. If Client cancels a Project other than for NMI’s Noncompletion after NMI presents the Successful Expense Reduction Analysis to Client, on NMI’s demand Client shall pay NMI the Minimum Payment.

    3. Cancellation By NMI. NMI may cancel a Project upon the occurrence of any event or circumstance for which Client is obliged to pay NMI the Minimum Payment.

  17. Solicitations. From the Effective Date until the time by which NMI is required, by the SOW or by these Terms of Service, to deliver the Expense Reduction Analysis to Client, Client shall forward to NMI all solicitations and inquiries from third party vendors regarding a Targeted Vendor, a Targeted Expense, or any goods or services that Client receives from a Targeted Vendor for NMI’s evaluation to prepare the Expense Reduction Analysis. Client’s payments to NMI as required by the SOW or these Terms of Service shall not be reduced if NMI uses that information within its Successful Expense Reduction Analysis. On NMI’s demand, Client shall pay NMI the Minimum Payment if NMI breaches this Solicitations covenant.

  18. Standstill. From the Effective Date until the time by which NMI is required, by the SOW or by these Terms of Service, to deliver the Expense Reduction Analysis to Client, Client shall not change or attempt to reduce its Targeted Expenses or change its Targeted Vendors. Client shall immediately notify NMI if a Targeted Vendor stops providing goods or services to Client before Client enters into an Identified Vendor Agreement for the services provided by that Targeted Vendor. On NMI’s demand, Client shall pay NMI the Minimum Payment if NMI breaches this Standstill covenant.

  19. NMI’s Marketing Materials. The contents of NMI’s brochures, website, other marketing materials, oral promises, and oral representations made by or for NMI at any time (one or more of which is “NMI’s Marketing Materials”) shall not be part of a Project Contract and shall not create any representation or warranty by NMI concerning NMI’s Services, notwithstanding anything to the contrary that is part of NMI’s Marketing Materials.

  20. Warranties. NMI warrants that NMI will use reasonable commercial efforts and reasonable commercial judgment to provide NMI’s Services, including selecting the Identified Vendors and NMI’s other recommendations in NMI’s Expense Reduction Analysis. NMI does not warrant or guarantee that NMI’s Services will result in any reduction of the Targeted Expenses or that Client will actually realize any of the Estimated Expense Savings.

  21. Indemnity. Client shall defend, indemnify, and hold NMI harmless, and Client releases NMI and Client shall not sue NMI, for any negligent or intentional act or omission by an Identified Vendor or for any breach of an Identified Vendor Agreement by Client or by the Identified Vendor, and such acts, omissions, and breaches shall not affect the amounts or payments Client owes NMI under any Project Contract.

  22. Client’s Other Damages for NMI’s Breach. If NMI breaches any Project Contract for which Client does not cancel the Project, including a breach of NMI’s warranties in these Terms of Service or a failure to deliver an Expense Reduction Analysis by the due date, as Client’s exclusive remedy NMI shall refund to Client the lesser of Client’s actual damages or fifty percent of the amount Client paid to NMI under the Project Contract, which shall be zero if Client did not pay any amount to NMI. Client shall have no remedy for NMI’s breach and NMI shall not be obliged to refund Client any amount if Client does not notify NMI of the breach within 21 calendar days after Client first has actual or constructive knowledge or notice of NMI’s breach, or within 21 calendar days after Client would have had such notice if Client had acted diligently.

  23. Effect of Project Cancellation and Rescission. A party’s cancellation of a Project as permitted by these Terms of Service shall also terminate and rescind the Project Contract. A party’s termination or rescission of a Project Contract shall entitle that party to the same rights and remedies and shall impose the same obligations on that party as if that party had cancelled the Project. A party’s cancellation, termination, or rescission of a Project or a Project Contract shall not affect the parties’ respective rights to the monetary amounts provided by these Terms of Service or the parties’ respective rights, remedies, and obligations which, under these Terms of Service, continue after the cancellation, termination, or rescission.

  24. No Set-Off. Client may not withhold or reduce any payment that Client owes NMI for a Project or under these Terms of Service due to NMI’s breach of a Project Contract for a different Project.

  25. NMI’s Damages Award. Client acknowledges that the award of the Minimum Payment and the other monetary damages awarded to NMI under the circumstances provided by these Terms of Service are appropriate and commercially reasonable because that award will bear at least some relation to the actual damages that NMI might sustain under those circumstances, and NMI’s actual damages under those circumstances will be uncertain in amount and difficult to prove.

  26. Enforcement. All amounts that Client owes NMI which are past due under any Project Contract shall earn simple interest at the monthly rate of 1.5 percent or the highest lawful rate, whichever is lower. In all lawsuits to enforce or interpret any Project Contract: (a) the parties shall submit to the exclusive jurisdiction and the exclusive venue of the state courts in which NMI’s principal office is then located, except that a party may enforce any order of such court in any jurisdiction and in any venue, and the parties waive all claims that the foregoing designations of jurisdiction and venue are unreasonable or inconvenient, (b) the parties waive all rights to a jury trial, and (iii) if NMI is the prevailing party, Client shall pay NMI’s costs and expenses, including the fees of NMI’s attorneys, experts, consultants, and vendors. (c) In the foregoing lawsuits, NMI shall not pay the fees of Client’s attorneys, experts, consultants, vendors, or Client’s other costs or expenses, even if Client is the prevailing party.

  27. Notice. Notices given under or concerning a Project or any Project Contract shall not cause any time period under the Project Contract to commence, shall not be binding on the recipient, and shall not require any action by or response from the recipient unless in writing and delivered to the recipient by commercial courier; fax; email; or registered or certified mail, return receipt requested, to the parties at their offices designated by the SOW pertaining to the Project or the Project Contract and if no such designation, to any of their offices in the United States, or to such other street or email address or fax number as from time to time directed in a notice by a party to the other party. Delivery shall be deemed to have occurred at the date and time of actual receipt or at the date and time at which a party refuses to accept the delivery, whichever applies. If a party has moved without delivering notice of its new street or email address or fax number to the other party, delivery shall be effective at the date and time of the attempted delivery. The dates and times of delivery, attempted delivery, or refused delivery shall be as shown by the records of the courier, the sender’s email record, the fax transmittal, or the United States Post Office, as applicable. Delivery shall not be deemed to have been made or refused if a recipient party’s fax or email is inoperable.

  28. Severability and Modification. If a court or agency, following the conclusion of all appeals, if any, determines that any provision of a Project Contract, including any provision of these Terms of Service, is null, void, or unenforceable, the balance thereof shall nevertheless remain enforceable, such invalidity shall not affect any other provision thereof that can be given effect without the invalid provision, and to that end, the parties intend that the provisions thereof are and shall be severable. Following the conclusion of all appeals, if any, the parties shall, if and to the extent possible, modify the null, void, or unenforceable provision retroactive to the Effective Date and consistent with the final court or agency determination so that the provision shall become valid and enforceable while remaining as similar as possible to the original, or a party may petition the court to so modify the Project Contract, including these Terms of Service. Otherwise, a Project Contract, including these Terms of Service, may not be modified except by a writing signed or acknowledged in writing by the parties. The conduct of a party or any third party acting for or on behalf of a party different from a Project Contract, including these Terms of Service, shall not thereby modify the Project Contract, including these Terms of Service. A party’s failure or forbearance to require the other party’s compliance with a Project Contract, including these Terms of Service, whether or not occurring on multiple occasions, shall not thereby modify the Project Contract, including these Terms of Service, shall not excuse the other party’s future compliance, and shall apply only to the specific instance of failure or forbearance.

  29. Third Party Beneficiaries. Each Project Contract shall be solely for the benefit of NMI and Client, and there shall be no other third party beneficiary of any Project Contract. 

  30. Reliance. Client shall not rely on any oral or written statement, representation, warranty, or promise that is not expressly set forth within the Project Contract. Client releases and waives all claims, and shall not sue NMI for fraud-in-the-inducement or otherwise, with respect to any statement, representation, warranty, promise, or document concerning a Project Contract on which Client has hereby agreed to refrain from relying.

  31. No Additional Rights or Obligations. Nothing within a Project Contract is or will be intended by the parties to impose or create, by implication or otherwise, any right, requirement, duty, or obligation on NMI of any kind or nature whatsoever, which is not expressly set forth or referred to within that Project Contract.

  32. Waiver of Contrary Claims. Client waives all claims contrary to the provisions of the Project Contract.

  33. Assignment.  Either party may assign its rights under one or more Project Contracts to a third party on notice to the other party. Either party may assign its obligations under one or more Project Contracts to a third party only with the other party’s consent, which the other party shall not unreasonably withhold, delay, or condition.

  34. Interpretation. The parties intend that interpretation of each Project Contract shall be derived only from the provisions thereof, without resort to course of dealing, usage of trade, course of performance, or any other extrinsic evidence, and shall not be construed in favor of or against either party.  Whenever appropriate under the circumstances, within each Project Contract, including the definition of any term: (a) the plural of any word shall mean the singular; (b) the singular of any word shall mean the plural; (c) “and” shall mean “or”; (d) “or” shall mean “and”; (e) “an”, “any”, or “each” shall mean one, more than one, or all; (f) “all” shall mean any, one, or more than one; (g) words referring to persons or entities shall include associations, cooperatives, corporations, firms, general and limited partnerships, limited liability companies, natural persons, public agencies, sole proprietors, trusts, and all other entities and enterprises; (h) the words “such as”, “include,” “including,” and similar words shall be construed as if followed by the phrase “without limitation” or a similar phrase; (i) use of the masculine, feminine, or neuter gender shall include each of the other genders.

  35. Headings.  The section headings in these Terms of Service are included only for convenience and for reference purposes and are not intended to have any substantive meaning or to affect the interpretation of these Terms of Service or the SOW for any Project.

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