Provider can assign the Agreement (including all its rights and obligations hereunder) to Provider’s affiliated companies by providing Written Notice of such assignment to Client; assignments to any other third parties require the prior written consent of Client (which shall not be unreasonably withheld or delayed). Client may assign the Agreement only with prior written consent of Provider (which shall not be unreasonably withheld or delayed).
Provider is, and for all purposes hereunder shall be deemed, an independent contractor, and not an agent, partner or joint venturer of Client. Neither party shall make any warranties or representations of any kind, express or implied, to third parties in the name of the other party, nor shall any party hereunder assume or create, or attempt to assume or create, any obligation of any kind on behalf of the other party.
No delay or omission by either party in exercising any right under the Agreement will operate as a waiver of that or any other right. A waiver or consent given by a party on any one occasion is effective only on that occasion, and shall not be construed as a waiver of that right or consent as to any other occasion or any other breach. No course of dealing between the parties will give rise to any implied amendment or waiver.
In case that any provision in the Agreement is invalid or becomes invalid, the remaining provisions remain unaffected hereby. The parties undertake to replace any invalid provision in the Specific Terms by a valid provision that comes as close as possible to the invalid provision in legal, economic and factual terms. The same applies in case of a loophole in the Specific Terms.
Neither party shall be in default by reason of failure in performance of the Agreement if such failure arises, directly or indirectly, out of causes beyond the reasonable or foreseeable control of either party, including but not limited to, default by suppliers, acts of hackers, problems associated with the Internet or a telecommunications service provider, acts of God, acts of terrorism or the public enemy, U.S. or foreign governmental acts in either a sovereign or contractual capacity, transportation contingencies, fire, flood, epidemic, restrictions and strikes.
The Agreement shall be exclusively governed by, and construed in accordance with, the laws of the State of New York, United States, without regard to the conflicts of laws rules or principles thereof that would require the application of the laws of another jurisdiction.
ANY PARTY BRINGING A LEGAL ACTION OR PROCEEDING AGAINST ANOTHER PARTY FOR THE RESOLUTION OF ANY DISPUTE ARISING IN CONNECTION WITH THE INTERPRETATION, CONSTRUCTION, OR ENFORCEMENT OF THE AGREEMENT SHALL BRING SUCH LEGAL ACTION OR PROCEEDING IN ANY COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY OR ANY FEDERAL COURT HAVING JURISDICTION OVER NEW YORK COUNTY, NEW YORK. EACH PARTY HERETO AGREES TO SUBMIT TO THE EXCLUSIVE PERSONAL JURISDICTION AND VENUE OF THE STATE AND FEDERAL COURTS HAVING JURISDICTION OVER NEW YORK COUNTY, NEW YORK FOR THE RESOLUTION OF ALL DISPUTES ARISING IN CONNECTION WITH THE INTERPRETATION, CONSTRUCTION, AND ENFORCEMENT OF THE AGREEMENT, AND HEREBY WAIVES THE CLAIM OR DEFENSE THEREIN THAT SUCH COURTS CONSTITUTE AN INCONVENIENT FORUM. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION THAT IT MAY NOW OR LATER HAVE TO THE LAYING OF VENUE OF ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT BROUGHT IN ANY SUCH COURTS.
If litigation, or any form alternative dispute resolution, is necessary to enforce the terms of the Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and costs, court costs, and costs of any alternative dispute resolution.
Provider can modify the terms and conditions of the Agreement with Client’s consent. Client’s consent to such modification shall be deemed given if (i) Provider communicates the proposed modification to Client in a Written Notice or electronically at least thirty (30) days before the proposed effective date and (ii) client does not object to the modification in a Written Notice or electronically within 21 days after Client’s receipt of Provider’s communication. In its communication to Client regarding the proposed modification, Provider shall explicitly mention this effect of Client’s failure to object to the modification.
Any and all notices, requests, claims, demands and other communications required or permitted hereunder as well as changes and amendments to this Agreement shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by facsimile, by nationally recognized overnight courier, or by express, registered or certified mail to the respective party at the address or facsimile number first set forth above (or at such other address as a party shall specify in a written notice given in accordance with this paragraph).
Changes and amendments to the Agreement need to be made in writing, i.e. through a document signed personally or through advanced electronic signature (pursuant to the European eIDAS Regulation No 910/2014) by authorized representatives of the parties and provided to the other party as original form, telefax or PDF copy as email attachment. This also applies to a change of this written form requirement.
The Agreement, consisting of any Specific Terms and these General Terms, constitute the entire agreement between the Parties with respect to the delivery of Services, and the information provided in connection therewith, and supersedes all prior or contemporaneous agreements, proposals, negotiations, representations or communications, whether written or oral, relating to such subject matter. The Parties acknowledge and agree that they have not been induced to enter into the Agreement by any representations or promises not specifically stated herein.
Should a contradiction arise between contractual documents, it is formally agreed that the provisions contained in the document of a higher rank shall supersede. The following document hierarchy shall apply by decreasing order of priority: 1. Specific Terms including all appendices and any addendum, 2. General Terms.