Terms and Conditions

TERMS AND CONDITIONS FOR SERVICES

  1. Applicability of this Agreement.  

1.1  General. MDC Productions LLC, a New Jersey limited liability company (the “Company”) provides certain services, including consulting services, event management services and video production services (“Services”) as may be further described in a Statement of Work (as defined below). The client of the Company who is the intended recipient of Services hereunder (“Client”), by engaging the Company pursuant to a written statement of work (including any amendments thereto, a “Statement of Work”) executed by Client and the Company (each, a “Party” and collectively, the “Parties”), or by agreeing to use or accept, or by using and accepting, any of the Services, hereby agrees to be bound by these terms and conditions (these “Terms and Conditions”), which Terms and Conditions are hereby incorporated into and made part of any Statement of Work. These Terms and Conditions, collectively with any Statement of Work, if any, into which these Terms and Conditions are incorporated, are referred to as the “Agreement.” This Agreement constitutes a legal and binding contract between Client and the Company for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Parties, and each Party agrees to all of the terms and conditions contained in this Agreement. This Agreement is effective as of the earlier of (a) the date of the earliest executed Statement of Work, or (b) the first date on which Client used and accepted, or agreed to use and accept, any Services provided hereunder (the “Effective Date”).

1.2  Entire Agreement. This Agreement comprises the entire agreement between the Parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, promises, covenants, representations, warranties and communications, both written and oral. In the event of any conflict between these Terms and Conditions and any applicable Statement of Work, such Statement of Work shall govern, unless such Statement of Work expressly states that the Terms and Conditions shall control.

1.3  No Other Terms. This Agreement and the Terms and Conditions herein shall prevail over any of Client’s general terms and conditions regardless of whether or when Client has submitted its request for proposal, order or any other instrument containing such terms and conditions proposed by Client. The provision of Services to Client shall not constitute acceptance by the Company of any of Client’s terms and conditions and shall not serve to modify or amend this Agreement.

  1. Services.

2.1  Provision of the Services. The Company will provide the Services to Client as specified in one or more Statements of Work executed by the Parties, or as otherwise agreed upon from time to time in written or oral communication or by course of dealing. The Company shall use commercially reasonable efforts to meet any performance dates specified in any Statement of Work, it being acknowledged and agreed that any such dates are estimates only, unless expressly provided otherwise in an applicable Statement of Work.

2.2  Company Obligations. Unless otherwise permitted hereunder including under Section 4, the Company shall not make any public release, display, publication or distribution of any materials containing any reference to Client or otherwise about or relating to Client or its business, profession or persona as part of the Services hereunder without the prior written consent of Client.

2.3  Client’s Obligations. Client shall provide the Company and its personnel with access to Client’s premises, information, data and suitably qualified personnel, in each case as reasonably needed for the Company to perform the Services. The Company shall not be responsible or liable for any late delivery or delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement. Client hereby irrevocably grants to the Company all such rights and permissions in or relating to any information or data of or relating to or provided by Client as are necessary or useful to perform the Services. During the Term (as defined below), Client shall respond promptly to any request of the Company to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for the Company to perform Services in accordance with the requirements of this Agreement. Furthermore, Client shall, during the Term, obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which any applicable Services are to commence.

2.4  Subcontractors. The Company may utilize subcontractors that are reasonably acceptable to Client in connection with the provision of Services under this Agreement, provided that any such subcontractors agree to comply with and be bound by all relevant terms of this Agreement, including all provisions relating to Confidential Information of Client; provided further, that the Company shall be fully responsible for all acts and omissions of the Company’s subcontractors (which will be deemed to be the Company’s acts and omissions under this Agreement).

  1. Fees.

3.1  Fees and Payment. Client shall pay the Company the applicable fees described in the applicable Statement of Work for the Services in accordance with the terms therein; provided, however, that if no Statement of Work has been executed by the Parties or if no Statement of Work contains a schedule of fees, the applicable fees due and payable by Client shall be the fees agreed to in the fee schedule provided by the Company in any other written communication and/or available on the Company’s website (such applicable schedule of fees, the “Fee Schedule”). The Fee Schedule shall be incorporated into and made part of this Agreement. The Company reserves the right to change its standard fees for Services at any time, with notice to Client, provided that any such change to the Company’s standard fees for Services shall not affect or amend any Fee Schedule then in effect for Services during the period for which such Fee Schedule is applicable, unless otherwise agreed in a Statement of Work.

3.2  Expenses. Client will reimburse the Company for expenses incurred in providing the Services, provided such expenses have been approved by Client in advance unless expressly provided in a Statement of Work.

3.3  Payment. Unless otherwise specified in an applicable Statement of Work, the Company may invoice Client on a monthly basis (or as otherwise determined by the Company with prior notice to Client) for fees and expenses relating to the Services. Client will pay such invoices within thirty (30) days of receipt (each such date, a “Due Date”). If Client’s account is more than thirty (30) days past due (except with respect to charges subject to a reasonable and good faith dispute), in addition to any other rights or remedies it may have under this Agreement or by law, the Company reserves the right to suspend the Services upon written notice until such amounts are paid in full. The Company reserves the right to collect payment on any payment Due Date by charging Client’s credit card or other method of payment on file, or as otherwise agreed by the Parties. Unless otherwise specified in the Statement of Work, unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, plus all expenses of collection. Client shall be responsible for all taxes associated with the Services other than U.S. taxes based on the Company’s net income.

  1. Proprietary Rights.

4.1  Client Ownership Intellectual Property. Subject to Section 4.2, all Intellectual Property Rights in and to all documents, work product and other materials that are specifically and expressly prepared solely for, and delivered to, Client under this Agreement by or on behalf of the Company as part of the Services (collectively, the “Deliverables”), and all goodwill associated therewith, shall be owned exclusively by Client. The Company agrees, and shall cause its employees and permitted subcontractors (collectively, “Service Provider Personnel”) to agree, that with respect to any Deliverables that may qualify as “work made for hire” as defined in 17 U.S.C. §101, such Deliverables are hereby deemed a “work made for hire” for Client. To the extent that any of the Deliverables do not constitute a “work made for hire,” the Company hereby irrevocably assigns, and shall cause the Service Provider Personnel to irrevocably assign to Client, in each case without additional consideration, all right, title and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein. The Company shall cause the Service Provider Personnel to irrevocably waive, to the extent permitted by applicable law, any and all claims such Service Provider Personnel may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral with respect to the Deliverables.

4.2  Company Materials. Notwithstanding anything to the contrary in the foregoing, the Company and its licensors are, and shall remain, the sole and exclusive owners of all right, title and interest in and to: (a) all documents, data, know-how, methodologies, software and other materials, including computer programs, reports and specifications, provided by or used by the Company in connection with performing the Services, in each case developed or acquired by the Company prior to the commencement or independently of this Agreement; (b) any materials expressly identified on any Statement of Work as “Company Materials” or similar designations implying ownership by the Company; (c) any copy, press releases, blog posts, articles, content, documents, reports, presentations, videos, artwork, photographs, graphic materials, audiovisual works or other materials (including copyrightable materials) created, developed or acquired by the Company relating to any event or activity that the Company is involved with as a participant, sponsor, presenter, coordinator, consultant, organizer, promoter or event manager or planner, to the extent the creation, development or acquisition of such is ancillary or unrelated to the Services, and not delivered or provided to Client as part of, or not intended to be part of, the Deliverables; and (d) any materials that are developed or acquired by the Company in the course of providing the Services or otherwise after the Effective Date but that are applicable to the Company’s business generally, and are not reasonably applicable to or intended to be part of the Deliverables (collectively, the “Company Materials”), including in each case all Intellectual Property Rights therein, and no Deliverables shall include any Company Materials. The Company hereby grants Client a license to use all Company Materials free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicenseable, fully paid-up, royalty-free and perpetual basis to the extent that the Company Materials are reasonably necessary to use the Services or any Deliverables. All other rights in and to the Company Materials are expressly reserved by the Company.

4.3  Grant of License to Certain Client Intellectual Property.

(a)        Client grants the Company and its Affiliates a limited, non-exclusive, royalty-free, worldwide license during the Term to use, solely in connection with any Services to be provided by the Company hereunder relating to or involving the organization, management, promotion or marketing of any event or activity that Client is or is intended to be involved with in connection with the Services: (i) Client’s Trademarks; (ii) Client’s domain names, website addresses, websites, and URL’s; (iii) any Trademarks created by the Company on Client’s behalf as part of the Services and included in the Deliverables; (iv), if Client is an individual, Client’s name and (to the extent provided or authorized by Client) images, videos and photographs of or depicting Client; and (v) any other materials provided by Client expressly for the purpose of being used in connection with the Company’s organization, management, promotion or marketing of such event or activity.

(b)        Client grants the Company and its Affiliates and licensees a perpetual, non-exclusive, royalty-free, worldwide license to use, in connection with the Company’s business (including for the purpose of trade, advertising, sales, publicity, promotion, training or otherwise, and including use of such materials on the Company’s website or social media sites): (i) any promotional materials, presentations, videos, artwork, images, photographs, graphic materials or audiovisual works in any medium of any nature whatsoever (including the right to edit, combine with other materials or create any type of derivative thereof), to the extent created, developed or acquired by the Company in connection with any event or activity relating to the Services, or any event or activity with which Client is involved as part of, or ancillary to, the Services (including any such images, videos, photographs or other such materials featuring or depicting Client); or (ii) Client’s name and logo for use in a list of the Company’s customers and clients on the Company’s website, social media sites or in other Company materials.

(c)        Client grants no other right or license to any of its Intellectual Property Rights to the Company by implication, estoppel or otherwise. The Company acknowledges that Client owns all right, title and interest in, to and under Client’s Trademarks and that the Company shall not acquire any rights therein unless expressly granted under this Agreement.

  1. Confidentiality.

5.1  Confidentiality. No Party shall disclose or use any Confidential Information of the other Party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement, or except with the other Party’s prior written consent. Each Party agrees to protect the Confidential Information of the other Party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.

5.2  Compelled Disclosure. A disclosure by one Party of Confidential Information of the other Party to the extent required by law shall not be considered a breach of this Agreement, provided the Party so compelled promptly provides the other Party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other Party’s cost, if the other Party wishes to contest the disclosure.

5.3  Remedies. If a Party discloses or uses (or threatens to disclose or use) any Confidential Information of the other Party in breach of confidentiality protections hereunder, the other Party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies would be inadequate.

5.4  Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other Party; (ii) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (iii) was independently developed by a Party without the use of any Confidential Information of the other Party; or (iv) is received from a third party without breach of any obligation owed to the other Party.

  1. Non-Solicitation. During the Term and for two (2) years thereafter, each of the Company and Client shall not, and shall not assist any other person to, directly or indirectly, recruit, take away, hire or solicit for employment or engagement as an independent contractor any person then or within the prior six (6) months employed or engaged by the other Party. In the event of a violation of this Section 6, the Party not in violation will be entitled to liquidated damages equal to the compensation paid by such Party to the applicable employee or contractor during the last three (3) months in which such person provided services to or on behalf of such Party as an employee or contractor.
  2. Non-Exclusive Relationship. Unless expressly agreed otherwise in a Statement of Work, the Company retains the right to perform the same or similar types of Services for third parties during the Term of this Agreement.
  3. Representations, Warranties and Disclaimers.

8.1  Mutual Representations. Each Party represents and warrants to the other Party that it has the authority to enter into this Agreement and the power and authority to grant the licenses granted by it hereunder, and, in connection with its performance of this Agreement, shall comply with all laws applicable to it.

8.2  Company Representations. The Company represents and warrants to Client that during the Term, it will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, and will devote adequate resources to meet its obligations under this Agreement.

8.3  Client Representations. Client represents and warrants to the Company that (a) it has provided the Company with a copy of any applicable internal policies or procedures and a written description of any specifications or other requirements or restrictions applying to any of the Services; and (b) it has, or shall obtain and shall maintain throughout the Term, all rights, licenses and consents required in connection with the Services, including any such right or licenses required to lawfully use, and to authorize the Company to use, any Client Intellectual Property Rights of Client or other Client materials provided to the Company expressly for use in connection with the Services.

8.4  No Liability for Third Party Brands. The Services may involve (i) events or activities that the Company is involved with as a participant, sponsor, presenter, coordinator, consultant, organizer, promoter or event manager or planner, or (ii) events, meetings, activities or other interactions, planned or otherwise, involving Client and other companies, non-profit organizations, charities, celebrities or other persons, entities or groups (“Third Party Participants”). Client acknowledges, understands and agrees that the Company is not responsible for any acts or omissions of any such Third Party Participant, or for any occurrences not caused by the Company that affect the brand, reputation or public perception of any such Third Party Participants or that cause the diminution of value of the brand, reputation or public perception of any such Third Party Participants; and Client acknowledges, understands and agrees that the Company is not and shall not be responsible for any losses, damages, liabilities or other harm (reputational or otherwise) that may be incurred by Client, directly or indirectly, by any occurrence relating to any such Third Party Participant or any brand, reputation or public perception thereof or any diminution of value thereof for any reason, and the Company hereby disclaims all such liabilities.

8.5  DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 8. THE COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE OR WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, IN EACH CASE WITH RESPECT TO THE SERVICES. THE COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR FREE OR THAT OCCURRENCES INVOLVING A THIRD PARTY PARTICIPANT WILL NOT NEGATIVELY IMPACT CLIENT. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICES.

  1. Indemnification.

9.1  Company Indemnification. The Company, at its own expense, shall defend, indemnify and hold Client and its Affiliates and their respective directors, employees, agents and permitted successors and assignees (the “Client Indemnitees”) harmless from and against any and all losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) (collectively “Damages”) suffered or incurred (including without limitation amounts agreed upon in settlement) or awarded in connection with any actual or alleged claim, suit or proceeding brought by a third party (each a “Claim”) arising out of or resulting from:

(a)        the Company’s gross negligence, fraud or intentional act or omission;

(b)        the Company’s material breach of this Agreement; or

(c)        any violation or claimed violation of a third party’s rights resulting in whole or in part from Client’s use of any Deliverables provided by the Company under this Agreement;

provided, however, that the Company will not be obligated to indemnify Client or any Client Indemnitees for Claims arising out of the gross negligence or intentional misconduct of Client or any Client Indemnitees.

9.2  Client Indemnification. Client, at its own expense, will defend, indemnify and hold the Company and its Affiliates and their respective directors, employees, agents and permitted successors and assignees (the “Company Indemnitees”) harmless from and against any and all Damages suffered or incurred (including without limitation amounts agreed upon in settlement) or awarded in connection with any Claim arising out of or resulting from:

(a)        Client’s gross negligence, fraud or intentional act or omission; or

(b)        Client’s material breach of this Agreement; or

(c)        any violation or claimed violation of a third party’s rights resulting in whole or in part from the Company’s use pursuant to the grant of license hereunder of any Intellectual Property Rights of Client;

provided, however, that Client will not be obligated to indemnify the Company or any Company Indemnitees for Claims arising out of the gross negligence or intentional misconduct of the Company or any Company Indemnitees.

9.3  Indemnification Procedure. The Party seeking indemnification (“Indemnitee”) will use reasonable efforts to notify other Party (“Indemnitor”) promptly of any Claim for which the Indemnitee believes it should be indemnified; provided that any failure by the Indemnitee to notify the Indemnitor within a reasonable time will not affect the Indemnitor’s indemnification obligations hereunder except to the extent any delay in providing notice materially prejudices the Indemnitor. The Indemnitor will assume the defense of such Claim with counsel that is mutually acceptable to both Parties. The Indemnitor will control the defense or settlement of the Claim, but will provide regular updates to and cooperate with the Indemnitee on a regular basis; provided, however, in no event will the Indemnitor settle or compromise any Claim or consent to the entry of any judgment without the prior written approval of the Indemnitee. Notwithstanding the foregoing, if the Indemnitee, in its sole judgment so elects, the Indemnitee may also participate in the defense thereof by employing counsel at its expense. If the Indemnitor fails, within a reasonable time after receipt of such notice from the Indemnitee, to assume the defense with counsel mutually acceptable to both Parties or if, in the reasonable judgment of Indemnitee, a direct or indirect conflict of interest exists between the Parties with respect to the claim, suit or proceeding, the Indemnitee will have the right, but not the obligation, to undertake the defense, compromise and settlement of such Claim for the account and at the expense of the Indemnitor.

  1. Limitation of Liability.

10.1                 Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE COMPANY AND ITS LICENSORS, AFFILIATES, SUBCONTRACTORS AND SERVICE PROVIDER PERSONNEL UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID TO THE COMPANY BY OR ON BEHALF OF CLIENT FOR SERVICES DURING THE PRIOR TWELVE (12) MONTH PERIOD. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

10.2                 Exclusion of Damages. EXCEPT WITH RESPECT TO CLIENT’S PAYMENT OBLIGATIONS, OR THE INDEMNIFICATION OBLIGATIONS SET FORTH HEREIN, OR STATUTORY DAMAGES FOR A PARTY’S MISUSE OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  1. Term and Termination.

11.1                 Term. This Agreement shall commence as of the Effective Date and shall continue thereafter until the completion of the Services under all Statements of Work or as otherwise agreed, unless earlier terminated pursuant to this Agreement.

11.2                 Mutual Termination. The Parties may terminate this Agreement at any time upon written consent of each Party.

11.3                 Termination by Client. Client may terminate this Agreement (a) for any reason and at any time by giving thirty (30) days’ advance written notice to the Company, or (b) immediately in the event the Company becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.4                 Termination by the Company. The Company may terminate this Agreement: (a) for any reason and at any time by giving thirty (30) days’ advance written notice to Client; (b) if Client fails to pay any amounts owing to the Company within sixty (60) days after the applicable Due Date; (c) if Client breaches any representation, warranty, covenant or obligation in this Agreement and such breach is not cured within thirty (30) days after receiving written notice of such breach from the Company; or (d) immediately in the event Client becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

11.5                 Effect of Termination. Upon termination of this Agreement for any reason:

(a)        Client will pay the Company, within thirty (30) days following the date of termination, all outstanding expenses and fees for Services incurred or performed through the date of termination;

(b)        the Company will immediately deliver to Client all material in its possession or control that includes any Deliverables, Client’s Confidential Information, or any material supplied to the Company by Client; and

(c)        all sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment of fees, confidentiality and non-solicitation obligations, warranty disclaimers, and limitations of liability.

  1. General Provisions.

12.1                 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. There are no third party beneficiaries to this Agreement.

12.2                 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the third business day after first class mailing; or (iii) the second business day after sending by facsimile with telephonic confirmation of receipt, in each case to the addresses provided by the Parties for notice hereunder.

12.3                 Force Majeure. Any delay in the performance of any duties or obligations of either Party (except the payment of fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, civil unrest, acts of terror, computer attacks on or through the Internet or any other event beyond the control of such Party, provided that such Party uses commercially reasonable efforts, under the circumstances, to notify the other Party of the cause of such delay and to resume performance as soon as possible.

12.4                 Governing Law. This Agreement and any action related hereto will be governed and interpreted by and under the laws of the state of New Jersey, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.

12.5                 Arbitration. All disputes between the Parties arising out of or in connection with this Agreement, including any question regarding its breach, existence, validity or termination, shall be referred to and finally resolved by mandatory binding expedited arbitration under the Commercial Arbitration Rules of the American Arbitration Association in effect as of the date the request for arbitration is filed (the “Rules”) before a single, neutral arbitrator, selected in accordance with the Rules. Each of the Company and Client may initiate such an arbitration pursuant to the Rules. The arbitration shall be held in New York City, New York (such site being herein referred to as the “Forum”). Each Party agrees that it will abide by any decision rendered in such arbitration, and that any court having jurisdiction may enforce such a decision. Each Party submits to the non-exclusive personal jurisdiction of the courts of the Forum as an appropriate place for compelling arbitration or giving legal confirmation of any arbitration award, and irrevocably waives any objection which it may now or hereafter have to the venue of any such enforcement proceeding brought in any of said courts and any claim of inconvenient forum. Each Party agrees that service of process for all arbitration proceedings may be made in accordance with the Rules and shall be deemed effective as provided therein.

12.6                 Miscellaneous. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (which consent shall not be unreasonably withheld). This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter hereof. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument.

  1. Definitions.

Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either Party.

Confidential Information” means (a) each Party’s business or technical information, including but not limited to training materials, any information relating to software, plans, designs, costs, prices, names, finances, marketing plans, business opportunities, personnel, strategies, data, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or that the receiving party knows or should reasonably know is confidential or proprietary; (b) the Deliverables; (c) the Company Materials; and (d) the terms and conditions (including pricing terms and the provisions of any Statement of Work) of this Agreement.

Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, Trademarks, trade secrets, know-how, patents, patent disclosures and inventions (whether patentable or not), and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related thereto.

Trademarks” means all rights in and to United States and foreign trademarks, service marks, trade dress, trade names, brand names, logos, corporate names, and domain names, and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered.