Terms and Conditions
Pursuant to the Statement of Work ("SOW"), entered into by Millennium Communications. ("MC") and the client designated on the SOW ("Client"), Client has ordered certain services from MC. These Standard Terms and Conditions ("Terms") apply to all services and products (collectively "Services") provided by MC to Client as described in any SOW or incorporated herein by reference (collectively with the Terms and SOW, the "Transaction Documents"). Services may include, but are not limited to, website design and development, website managed hosting, and strategic marketing and branding services. As used in these Terms, "Party" means either MC or Client, as appropriate, and "Parties" means MC and Client, collectively.
1. Acceptance. Only the occurrence of one of the following events shall constitute acceptance of the SOW by Client: (a) Client's execution of the SOW and the receipt thereof by MC; or (b) Client's commencement of performance on account of the SOW (including without limitation, making any payment to MC for Services, participating in planning calls or meetings with MC, or providing any documentation required by MC such as specifications, wireframes, site maps or other data) provided however, that in the event MC does not receive notice of Client's commencement of such performance within a reasonable time, Client may treat the offer made hereunder as having lapsed before acceptance. The offer contained in the Transaction Documents is made on the terms and conditions stated therein and no others. Accordingly, Client's acceptance of the SOW is expressly limited to the terms and conditions contained in the Transaction Documents. Notice of objection is hereby given to any proposed term or condition or any alteration whether perceived as major or minor in nature. To the extent that an SOW is issued in response to an offer by Client and the SOW is considered a response to an offer based on previous documents or circumstances, then acceptance of Client's offer is expressly made conditional on Client's assent to the terms and conditions of the Transaction Documents. If Client does not assent to such terms, there is no contract. Any additional or different terms stated by the Parties in any quotation, confirmation, invoice, acceptance document, or other document, and any terms that are inconsistent with or in variance with the terms and conditions in the Transaction Documents, shall be of no force and effect. No additions, subtractions, or other modification of the terms and conditions of the Transaction Documents shall be binding upon MC unless expressly accepted in writing by MC. MC's failure to object to any provisions contained in any communication from Client shall not be deemed to be a waiver of MC's rights and remedies hereunder.
2. Services.
(a) Ordered Services. The Transaction Documents shall set forth at a minimum a description of the Services to be performed by MC and shall include: (i) a list of Services and any deliverables to be provided by MC pursuant to the Services (a "Deliverable"); (ii) the delivery and/or performance schedule; and (iii) the applicable fees. MC shall have no obligation to provide Services other than those specified in the Transaction Documents. Client may request additional Services in accordance with sub-section 2(b) or by a separate Transaction Document. Provided that there is no mutually agreed upon written agreement between the Parties to the contrary, Client shall pay for additional Services at MC's then-current hourly rate, on a time and materials basis, or as set forth under an accepted Change Order (as defined in sub-section 2(b)) or Transaction Document executed by both Parties and incorporated herein. If Client requests Services be performed outside of normal business hours, a premium rate for such Services will be charged as outlined in the Transaction Document.
(b) Change Order. If Client desires to modify Services specified in an existing Transaction Document, it shall submit to MC a written request to do so. The request shall set forth the nature of Client's proposed changes to the Services ("Change Request"). Upon Client's submission of a Change Request, and subject to MC's determination of the feasibility of the Change Request and agreement to provide such modified Services, MC shall complete and return to Client a written document ("Change Order") setting forth, at a minimum, a written description of any changes or additions to (i) the delivery schedule, (ii) the Services, and (iii) the estimated charges. Client shall accept or reject the Change Order within ten (10) days after receipt. Client's failure to reject the Change Order within such ten (10) day period shall constitute Client's acceptance of the Change Order and agreement to be bound by the terms thereof. If Client rejects the Change Order based on a Change Request submitted by Client, MC shall be entitled to reasonable compensation for the work performed in good-faith by MC in relation to the submitted Change Order, if any. Such compensation shall be calculated on a time and material basis using the hourly rates agreed in the applicable Transaction Document. Upon Client's acceptance, such Change Order will be deemed an amendment to the applicable Transaction Document.
(c) Estimates. MC makes no estimate of cost or completion date other than as set forth in the Transaction Documents. In that regard, unless otherwise expressly stated in a Transaction Document, Client understands that any costs or completion dates set forth in the Transaction Documents do not bind MC and are provided only as a good-faith approximation based on information furnished to MC by Client. MC will update its estimates at Client's request.
(d) Specifications. The Services will be performed in accordance with MC's applicable specification document provided by MC for the Services in question. Unless otherwise agreed upon in a written scope of work or in the SOW, the Services will be performed in the manner determined at MC's sole discretion and with reasonable efforts to meet any of Client's expressly indicated requirements that have been accepted by MC in the Transaction Documents.
3. Fees and Payment.
(a) All amounts payable to MC under the Transaction Documents will be invoiced monthly and are due and payable within thirty (30) days of the invoice date, unless otherwise agreed in the applicable Transaction Document.
(b) Any invoice that is unpaid when due will accrue interest at 1.5% monthly, but not to exceed the maximum rate permitted by law. In the event that an invoice is not paid by Client when due, MC may suspend performance under any and all Transaction Documents until all overdue invoices and any other amount owed thereunder have been paid, in addition to and not in limitation of other available remedies. All times estimated in the Transaction Documents for MC's performance or delivery will be extended by the number of days payments are late.
(c) Client shall review each invoice promptly upon receipt, and shall notify MC in writing within five (5) days of the invoice date of any dispute as to the amount or validity of the invoice. Such notice shall identify the invoice number, the basis for the dispute and the disputed amount. If Client fails to deliver such notice in the allotted time, Client shall be deemed to have consented to the charges therein. Notwithstanding anything else herein, Client shall pay the undisputed portion of any disputed invoice within the time for payment thereof.
(d) All charges, rates and minimums are subject to change by MC with thirty (30) days advance written notice unless otherwise agreed in the applicable Transaction Document.
4. Client Responsibilities. In addition to and not in limitation of Client's other obligations hereunder, Client will: (a) provide MC with reasonable assistance and cooperation and respond to requests from MC on a timely basis; (b) have at least one (1) Client contact, present or available during regular business hours to provide information and assistance to MC; (c) provide MC with timely, complete, and accurate information and documentation, including without limitation any specifications or other data required to be delivered by Client pursuant to any Transaction Document; (d) make personnel available to MC who are familiar with Client's requirements and who have the technical and other expertise necessary to permit MC to undertake and complete its obligations under the Transaction Documents; (e) provide a safe area for MC to perform any Services required to be performed on Client's site; and (f) comply with all laws applicable to its activities pursuant to or in connection with the Transaction Documents and the transactions contemplated thereunder. Client's failure to fully satisfy and perform its obligations under this section 4 shall be considered a material breach of Client's obligations hereunder for purposes of sub section 5(b).
5. Term and Termination.
(a) Term. The term that MC shall provide each of the Services shall be for the applicable period as set forth on the SOW or applicable Transaction Document ("Term").
(b) Termination Upon Breach. The order for Services pursuant to the Transaction Documents may be immediately terminated (i) by MC for Client's breach of sections 7, 8, or 9 hereof; or (ii) by either Party upon written notice if the other Party breaches any material term or condition of the Transaction Documents and such breach is not cured within thirty (30) days following written notice from the Party specifying the breach. Notwithstanding anything else herein, as of the effective date of termination for any reason, MC shall have no obligation to provide any further Services to Client.
(c) Convenience Termination. Either Party shall have the right to terminate the SOW at any time for any reason, without liability, upon giving the other Party at least thirty (30) days written notice.
(d) Obligations Upon Termination. Immediately upon termination, Client shall pay MC for all Services provided or performed, and expenses incurred prior to the date of termination. Provided that Client has paid all applicable fees related to the Services at the time of termination, the license to Deliverables shall survive termination in accordance with the terms of the applicable license agreements and sub-section9(c).
6. Personnel. MC personnel performing Services for Client under the Transaction Documents may perform similar services for others during or after the Term. MC will make reasonable efforts to honor specific requests of Client regarding assignment of MC personnel; however, MC reserves the sole right to make and change all such assignments. MC agrees to use commercially reasonable efforts to provide personnel in accordance with service estimates and schedules provided to Client in Transaction Documents. Should any personnel be unable to perform scheduled services because of illness, resignation or other causes beyond MC's control, MC will attempt to replace such personnel within a reasonable time but will have no other liability.
7. Non-Solicitation. During the Term and for a one-year period thereafter, neither Party shall directly or indirectly solicit for employment or for engagement as an independent contractor, or encourage leaving their employment or engagement, any employee or independent contractor of the other Party. For the avoidance of doubt, general public advertisements for employment and responses thereto, shall not be deemed a violation of this section. The Parties agree that any breach of this section 7 would damage the other Party in an amount difficult to ascertain with certainty, and that in the event that either Party breaches this provision resulting in the other Party losing the services of an employee or independent contractor for any period of time, the breaching Party shall pay to the other Party an amount equal to the annual rate of compensation (with the non-breaching Party) of the applicable employee or independent contractor.
8. Confidentiality.
(a) Each Party acknowledges that it may receive ("Recipient") or have access to Confidential Information, as defined below, of the other Party ("Discloser") in the course of MC providing Services to Client. Each Recipient agrees to maintain the confidentiality of the Discloser's Confidential Information and not to use the Discloser's Confidential Information except in performing such Recipient's obligations under the Transaction Documents. Each Recipient agrees not to disclose the Confidential Information received from the Discloser to anyone except Recipient's employees, contractors, consultants and advisors who need access to the Confidential Information to perform the Recipient's obligations under the Transaction Documents, and provided any such employee, contractor, consultant or advisor has agreed to the restrictions on use and disclosure of Confidential Information set forth herein. "Confidential Information" means any business or technical information (i) of MC; or (ii) of Client that (y) if first disclosed in tangible form or electronic records, is conspicuously marked "confidential," "proprietary," or the like; or (z) is first disclosed in a non-tangible form and orally identified as confidential at the time of disclosure and is summarized in tangible form within thirty (30) days of the original disclosure, conspicuously marked "confidential" or "proprietary" or the like.
(b) Confidential Information shall not include anything that: (i) was generally known or available to the public at the time it was received from the Discloser, (ii) was known to the Recipient, without restriction, at the time of disclosure, or (iii) is supplied by the Discloser to another non-affiliated party without a duty of confidentiality.
(c) The restrictions on disclosure of Confidential Information shall not apply to the extent disclosure is required by a court, administrative agency, or other governmental body of applicable jurisdiction, provided that Recipient (i) provides notice of the required disclosure to the Discloser; (ii) uses reasonable efforts to limit disclosure and obtain confidential treatment for the information; and (iii) allows the Discloser to intervene at its own expense in the action.
(d) Client acknowledges and agrees that the Confidential Information of MC consists of trade secrets and is not readily accessible to competitors of MC, and that such Confidential Information has been acquired and assembled at significant expenditures of time and other resources. Client additionally acknowledges and agrees that Confidential Information of MC (i) is novel; (ii) provide MC with a competitive advantage over those who do not know or use it; (iii) is a valuable and unique asset of MC; (iv) is kept in a safe place and MC has taken and is taking all reasonable precautions to protect its secrecy through the use of reasonable security measures; and (v) would be difficult for competitors of MC or others to duplicate.
9. Proprietary Rights.
(a) MC Components. Client acknowledges that MC, prior to performing any Services for Client, has or may develop tools, ideas, concepts, processes, methodologies, software, and know-how ("MC Components"), some of which MC may use in performance of Services. The Parties agree that MC shall retain exclusive ownership of all such MC Components, and shall be entitled to use any and all MC Components in connection with the performance of Services for other parties. Provided that Client has paid MC for the MC Components pursuant to any Transaction Documents, MC hereby grants Client a limited, non-exclusive license to use the MC Components incorporated in the Deliverables solely to the extent as necessary for operation and maintenance of such Deliverables.
(b) Work Product. In addition to MC's retention of rights to the MC Components, Client agrees that all Work Product (as defined below) shall be the exclusive property of MC, and Client hereby assigns all its rights in and to the Work Product and in all related patents, patent applications, copyrights, mask work rights, trademarks, trade secrets, rights of priority and other proprietary rights to MC. Client acknowledges that MC, at its sole discretion, shall have the right to license the Work Product or any portion thereof, and/or incorporate the Work Product or any portion thereof into products or services, for use by other licensees or clients of MC without royalty or other consideration to Client. At MC's request and expense, Client shall assist and cooperate with MC in all reasonable respects and shall execute documents, give testimony and take further acts as reasonably requested by MC to acquire, transfer, maintain and enforce patent, copyright, trademark, mask work, trade secret and other legal protection for the Work Product. As used herein, the term "Work Product" means all materials, software, tools, data, inventions, works of authorship and other innovations of any kind, including, without limitation, any Deliverable and any improvements or modifications to MC Components and related materials, that MC, or personnel working for or through MC, may make, conceive, develop or reduce to practice, alone or jointly with others, in the course of performing the Services or as a result of such Services, whether or not eligible for patent, copyright, trademark, trade secret or other legal protection; but excluding (i) Client logos, Client trademarks, Client trade dress, advertising copy, product descriptions, product features, product performance characteristics, and other materials provided by Client (collectively "Client-Provided Material"); and (ii) Confidential Information of Client.
(c) License of Work Product and MC Components. Subject to Client's performance (including full payment of all undisputed billed amounts hereunder) of its obligations hereunder and upon completion of the Services, MC shall grant to Client a worldwide, non-exclusive, non-transferable world-wide license in perpetuity to use the Work Product and/or MC Components incorporated in the Deliverables solely to the extent as necessary for operation and maintenance of such Deliverables provided pursuant to the Services. Client shall not, without the written consent of MC: (a) decompile, disassemble or otherwise reverse engineer the Work Product or MC Components or any portion thereof; or (b) rent, lease, sublicense, sell, transfer or otherwise grant rights in or to the Work Product or MC Components (in whole or in part) to any third party in any form. Client acknowledges that MC Components and Work Product are licensed to Client, not sold.
(d) Third Party Software. Client's rights in software licensed to Client by third parties under agreements accompanying such software ("Third Party Software") and other data, programs and other materials provided by third parties, regardless of whether or not obtained with the assistance of MC, shall exclusively be as provided in the applicable third party license agreement, and Client is solely responsible for compliance with such third party agreements and policies.
10. Warranties.
(a) General Representations and Warranties. Each Party represents and warrants to the other Party that (i) it has the right to enter into the agreement comprising the Transaction Documents and perform its obligations hereunder; (ii) if not a natural person, it is organized in a corporate or equivalent form and is in good standing under the laws of its jurisdiction; (iii) to the best of its knowledge there are no claims, actions or proceedings against it (including without limitation bankruptcy, dissolution, liquidation, or any assignments for the benefit of creditors) that would impair its ability to honor all legal obligations hereunder; (iv) the person executing any Transaction Documents on its behalf has been authorized to do so; and (v) the Transaction Documents constitutes its valid, legal and binding obligations.
(b) MC Warranties. MC shall use commercially reasonable means to render the Services as set forth in the Transaction Documents. Subject to the provisions and qualifications of the Transaction Documents, upon completion of the Services outlined in the Transaction Documents, MC warrants only to Client that on such date such finalized Services shall have been performed in a workmanlike manner.
(c) Client Warranties. Client also warrants to MC that (i) all Client-Provided Materials do not and will not (1) use or include any confidential or proprietary information or trade secrets of any third party, unless Client has received a written license from the owner thereof to use as contemplated hereunder; and (2) violate the rights of any third party in any jurisdiction, including but not limited to copyright, trade secret, trademarks, publicity, privacy, patents or other rights; and (ii) Client has completed and received all authorizations, approvals and appropriations necessary for Client to perform its obligations under the Transaction Documents.
(d) Third Party Software. MC DOES NOT PROVIDE ANY WARRANTY FOR Third Party Software. ALL Third Party Software PROVIDED PURSUANT TO THE Transaction Documents IS PROVIDED ON AN "AS IS" BASIS, WITH ALL FAULTS, AND THERE ARE NO WARRANTIES FROM MC, EXPRESSED OR IMPLIED, MADE IN CONNECTION THEREWITH, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Client WILL ONLY RECEIVE WARRANTIES, IF ANY, FOR Third Party Software AS PROVIDED BY THE AUTHORS OR MANUFACTURERS OF SUCH SOFTWARE. Client agrees that MC shall not be liable for any defects, flaws, programming errors, inefficiencies or malfunctions in any such Third Party Software, or for any non-performance of the Third Party Software. Client further agrees that any claim based on, related to or arising out of the use of any such Third Party Software shall be governed exclusively by the terms of Client's software license agreement with such third-party.
(e) Disclaimer. EXCEPT AS EXPLICITLY SET FORTH IN SECTION 10, MC DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE Services, INCLUDING ANY Deliverables, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPATIBILITY WITH OTHER SOFTWARE OR HARDWARE, AGAINST INFRINGEMENT OR THE LIKE, AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING AND USAGE OF TRADE. It is hereby expressly understood and agreed that unless a statement is specifically identified in the Transaction Documents as a warranty, the statements made herein and therein relating to the Services are not express warranties and do not form a part of the basis of the bargain but are merely MC's opinion or commendation of the Services. Any description of the Services specified in the Transaction Documents or any description of Services contained in MC's website, on any and all brochures, pamphlets or other literature of MC, whether delivered before or after the Term, are not intended to be warranties. Instead, they are for the sole purpose of identifying such Services; and such descriptions are not part of the basis of the bargain, and do not constitute a warranty that the Services or Deliverables thereunder shall conform to those descriptions.
(f) Exclusive Remedy. Client's SOLE AND EXCLUSIVE RIGHTS AND REMEDIES IN CONNECTION WITH THE WARRANTY CONTAINED IN SUB-SECTIONS 10(a)AND 10(b) SHALL BE LIMITED TO MC CORRECTING THE DEFECTIVE Services/Deliverable, OR IF MC IS UNABLE TO DO SO OR IF SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE, THEN MC WILL PROVIDE A CREDIT OF THE FEE CHARGED Client FOR THE DEFECTIVE Services/Deliverable OR PROVIDE A REFUND THEREFOR, AT MC's OPTION.
11. Waiver of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE Transaction Documents, AND SUBJECT TO THE PROVISIONS OF THIS SECTION 11, EXCEPT FOR A BREACH BY CLIENT OF SECTIONS 7, 8, OR 9, NEITHER Party SHALL BE LIABLE TO THE OTHER OR ANY OTHER PERSON OR ENTITY FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO COVER DAMAGES OR LOST PROFITS, OR DAMAGES RELATING TO OR RESULTING FROM BUSINESS INTERRUPTION, LOSS OF GOODWILL, LOSS OF DATA, OR COMPUTER FAILURE OR MALFUNCTION DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF THE Transaction Documents OR THE TRANSACTIONS CONTEMPLATED THEREBY, REGARDLESS OF WHETHER THE LIABILITY RESULTED FROM ANY GENERAL OR PARTICULAR REQUIREMENT OR NEED WHICH A Party KNEW OR SHOULD HAVE KNOWN OF AND REGARDLESS OF WHETHER THE CLAIM IN QUESTION IS BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY, TORT OR OTHERWISE. IN THE EVENT THAT ANY TERM OF ANY OF THE Transaction Documents IS FOUND UNCONSCIONABLE OR UNENFORCEABLE FOR ANY REASON, OR ANY EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE, THIS PROVISION OF WAIVER BY AGREEMENT OF CONSEQUENTIAL DAMAGES SHALL NEVERTHELESS CONTINUE IN FULL FORCE AND EFFECT.
12. Limitation of Liability. THE MAXIMUM AGGREGATE LIABILITY OF MC ARISING OUT OF OR RELATING TO THE Transaction Documents OR TRANSACTIONS CONTEMPLATED THEREBY SHALL NOT EXCEED FIFTY PERCENT (50%) OF THE TOTAL FEES ACTUALLY COLLECTED BY MC FROM Client FOR THE AFFECTED Service IN QUESTION DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE SUCH CLAIM AROSE, REGARDLESS IF THE CLAIM IN QUESTION IS BASED ON WARRANTY, CONTRACT, NEGLIGENCE, STRICT PRODUCT LIABILITY, TORT OR OTHERWISE.
13. Indemnification. Client shall indemnify, defend and hold MC and its directors, officers, shareholders, employees, contractors and agents harmless from and against any and all liabilities, damages, losses, claims, actions, proceedings, and expenses, including, without limitation, reasonable legal fees (collectively "Damages") of whatsoever kind and nature, imposed upon, incurred by, asserted, threatened or awarded against MC, directly or indirectly arising out of, relating to or resulting from (i) Client-Provided Materials and Services provided in accordance with Client-Provided Materials or derived from Client-Provided Materials to meet Client's particular requirements or instructions, or (ii) any breach by Client of any Transaction Documents. Any and all amounts due for indemnity shall be paid as Damages are incurred, and in any event, within ten (10) days after written demand therefor.
14. Independent Contractor. MC is, and at all times will be, an independent contractor. Nothing in the Transaction Documents shall be construed to constitute either Party as a partner, employee, agent or joint venturer of the other; it being the intention that MC is and shall remain an independent contractor of Client, and that each Party shall be responsible for the supervision and control of their operations, including without limitation supervising and controlling their own personnel. Except as may be expressly set forth in the Transaction Documents, neither Party has the authority to enter into any contracts on behalf of the other Party or otherwise act on behalf of the other Party.
15. Non-Exclusivity. Client acknowledges that MC may be performing similar design, development, hosting or other services (which may be similar or identical to the Services) for businesses other than Client, including without limitation, other business in the same industries or competitors of Client. Unless explicitly agreed in a writing signed by the Parties, nothing in the Transaction Documents shall prohibit MC from performing such services.
16. Limitation of Action. No action or proceeding at law, in equity or otherwise shall be commenced by Client against MC for MC's alleged breach of any obligation or duty owed by MC (including without limitation by negligent acts or omissions) under any Transaction Document or under applicable law, unless: (i) Client notifies MC in writing within thirty (30) days from the date of such alleged breach, provided MC does not remedy or correct the breach or non-conformity within thirty (30) days from the receipt of the notice; and (ii) such action or proceeding is commenced by Client within twelve (12) months from the date the breach or non-conformity occurs, or commenced within the applicable statute of limitations period (whichever occurs first), for any action, regardless of Client's lack of knowledge.
17. Force Majeure. Except for the payment of monies due hereunder, neither Party shall be liable to the other Party for failure or delay in fulfilling its obligations under the Transaction Documents to the extent that such failure or delay is due to a force majeure, including, without limitation, interruption of carrier telecommunications, governmental regulation, labor disputes, strikes, acts of God, wars, terrorism, acts of public enemy, civil disturbance, or any other causes beyond its reasonable control, whether or not such cause be of the same class or kind as those enumerated above, such enumeration being expressly understood to be in addition to other causes or classes of causes beyond a Party's control. However, the delayed Party shall use its commercially reasonable efforts to minimize the delays caused by any such event beyond its reasonable control. The delayed Party must notify the other Party upon the occurrence of any such event (or performance by the delayed Party will not be considered excused pursuant to this Section 17), and inform the other Party of its plans to resume performance. In the event of the occurrence of a force majeure event, MC shall have the right to allocate labor among its customers in such proportions as it deems appropriate, in its sole and absolute discretion.
18. Choice of Law and Forum.
(a) The Parties acknowledge and agree that the Transaction Documents and the transactions contemplated thereby shall be a contract made in the United States, state of New York. All questions pertaining to the validity, construction, execution and performance of the Transaction Documents and the transactions contemplated thereby shall be construed and governed in accordance with the domestic laws of the state of New York, without giving effect to principles of comity of nations or conflicts of law.
(b) Any controversy or claim arising out of or relating to the Transaction Documents or any of the transactions contemplated thereby, including without limitation whether or not such dispute is subject to arbitration and claims for breach of these Terms, shall be settled by binding arbitration in accordance with the United States Arbitration Act and administered by the American Arbitration Association in accordance with its commercial arbitration rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
i. The arbitration proceedings shall be conducted before a panel of three (3) neutral arbitrators. The place of the arbitration shall be in New York, New York. Any award in an arbitration initiated hereunder shall be in accordance with New York law, as more particularly specified above. The successful Party will be entitled to be awarded all costs, including reasonable attorney's fees, paid or incurred by such prevailing Party during the course of the arbitration proceedings.
ii. In any arbitration initiated under these Terms, except for Client's breach of sections 7, 8, or 9, the arbitrators will have no authority to award (1) injunctive or other equitable relief, or (2) consequential, exemplary, incidental, indirect or special damages, lost profits or punitive or other damages not measured by the prevailing Party's actual direct damages, except as may be required by statute and then only to the extent such requirement cannot, as a matter of law, be waived. Any award shall include no injunction or direction to any Party other than the direction to pay damages in accordance with the provisions hereof.
iii. Except as required by law, neither Party nor any arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of Client and MC.
iv. If either Party fails to proceed with arbitration as provided herein or unsuccessfully seeks to stay such arbitration, or fails to comply with any arbitration award, or is unsuccessful in vacating or modifying the award pursuant to a petition or application for judicial review, the other Party shall be entitled to be awarded costs, including reasonable attorneys' fees, paid or incurred by such other Party in successfully compelling such arbitration or defending against the attempt to stay, vacate or modify such arbitration award and/or successfully defending or enforcing the award.
19. Miscellaneous.
(a) Integration. The Transaction Documents are intended by the Parties to be a final, complete and exclusive statement of their agreement with respect to the subject matter contained therein. All prior or contemporaneous oral or written statements, agreements, promises or understandings are hereby excluded and are superseded. It is expressly agreed that no course of performance, course of dealing or usage of trade shall be relevant or admissible to contradict, supplement, explain, or modify any express provisions of the Transaction Documents. Furthermore, it is expressly agreed that a Party's acceptance of or acquiescence in a course of performance under the Transaction Documents shall not be admissible to modify, waive, supplement or explain the terms hereof, even if that Party is aware of a course of performance and has an opportunity to object to it.
(b) Conflict. The provisions of these Terms may in some instances conflict with some of the terms and conditions contained in the other Transaction Documents. In such case, the terms which are more favorable to MC, as determined by MC, shall govern.
(c) Assignability. The Transaction Documents shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Client shall not have the right to assign any of its rights or benefits hereunder or under any applicable Transaction Document, nor delegate any of its obligations or duties thereunder without the prior written consent of MC. Any assignment in contravention of this provision shall be null and void, and of no legal force or effect.
(d) Modification or Amendment. Except as explicitly provided for in these Terms, no Transaction Document may be modified or amended except by an instrument in writing signed by the Party or Parties against whom enforcement is sought.
(e) Substantial Impairment. It is acknowledged that a breach by Client of any provision of the Transaction Documents will constitute a substantial impairment to MC of the value of such Transaction Documents permitting MC to, among other things, suspend performance thereunder.
(f) Captions. The headings and subheadings of the Transaction Documents are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of the Transaction Documents or any provisions hereof.
(g) Severability. Any term or provision of the Transaction Documents which is invalid or unenforceable in any jurisdiction on account of unconscionability or otherwise, shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of such Transaction Documents or affecting the validity or enforceability of any of the terms or provisions of the Transaction Documents in any other jurisdiction. Further, to the extent that any term or provision of any Transaction Document is deemed so invalid, void or otherwise unenforceable, but may be made enforceable by amendment thereto, the Parties agree that such amendment may be made so that the same shall, nevertheless, be enforceable to the fullest extent permissible under the laws and public policies applied in any such jurisdiction in which enforcement is sought.
(h) Waiver of Breach. Any waiver of any of the provisions of the Transaction Documents shall not be effective unless made in writing and signed by MC.