GENERAL TERMS AND CONDITIONS

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1. Definitions: In addition to the definitions provided elsewhere in this Agreement, the following definitions will apply:

1.1. “24/7” means continuous around-the-clock, seven-days-a-week, and year-around without exception for weekends, holidays, or any other events.

1.2. “Affiliate” means any Person that controls, is controlled by, or is under common control with, another Person. A Person is deemed to “control” another Person if it possesses, directly or indirectly, the power to direct or cause the direction of management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise. Affiliate also makes references to the respective owners, partners, directors, officers, employees, agents, consultants, and representatives of any Person, and any subcontractor who performs any part of this Agreement.

1.3. “Anti-Corruption Laws” means the United States Foreign Corrupt Practices Act (as amended from time to time), the United Kingdom Bribery Act 2010 (as amended from time to time), and any other applicable anti-bribery Law.

1.4. “Anti-Terrorism Laws” means Laws prohibiting the engagement of, or becoming involved in, supporting financially, or otherwise sponsoring, facilitating, or giving aid or comfort to any terrorist person, activity or organization.

1.5. “Change of Control Event” means (a) the legally concluded acquisition of the Client by any individual, entity or group of beneficial ownership of at least fifty-one percent (51%) or more interest in the Client; or (b) a legally consummated reorganization, merger, or consolidation or sale, lease, exchange or other disposition or transfer of all or substantially all of the assets of the Client to any individual, entity or group.

1.6. “Claims” means all causes of action, claims, damages, judgments, settlements, awards, interest, penalties, fines, liens, demands, liabilities, costs, losses and expenses of whatever kind, including all professional fees and other expenses of litigation, court costs and reasonable attorney fees.

1.7. “Confidential Information” means any proprietary information that one party discloses to the other in contemplation or fulfillment of the Agreement, including, without limitation, the existence, terms or conditions of this Agreement; provided that 1) the information is marked with a restrictive legend by the discloser; 2) the information would otherwise appear to be or would be considered by a reasonable person to be confidential or proprietary in the context and circumstances in which the information is known or used;  or 3) if disclosed orally or in another non-tangible manner, such disclosure is identified at the time as confidential or followed reasonably promptly by a written communication identifying the disclosure as confidential. If a recipient is unsure of whether information it received is Confidential Information, such recipient must seek clarification from the discloser before doing anything with that information that would be a breach of this Agreement if the information were in fact Confidential Information. The manners in which a party may disclose Confidential Information include, but are not limited to: 1) in writing; 2) by delivery of items; 3) by initiation of access to such information, for example via provision of access to a computer, computer systems or a database; or 4) by oral communication or visual presentation. Confidential Information also includes (i) the fact of communication thereof; (ii) analyses or notes containing Confidential Information; and (iii) the terms of this Agreement, as well as the existence, success, or failure of any resulting business relationship.

1.8. “Force Majeure” means an event that no human foresight could reasonably anticipate or which, if anticipated, is too strong to be controlled, like acts of God, acts, orders, decrees, instructions or other requirements of governmental entities or instrumentalities, civil unrest, accidents, insurrections, mobilizations, terrorism, riots, act of terrorism, vandalism, sabotage, strikes lock-outs or other labor disturbances, natural disasters, quarantines, floods, storms, hurricanes, tornados, or other adverse weather conditions, fires, explosions, wars, embargoes, shortage of labor, fuel, power, materials or supplies, transportation delays, epidemic, pandemic, or any other cause or causes beyond reasonable control of a party.

1.9. “Government Official” means: (a) any appointed, elected, customary, tribal, or honorary official of, or any officer or employee of, (i) any government, government ministry or department, or any agency or instrumentality thereof, (ii) any company or corporation that is owned or controlled by a government (such as a national oil company), or (iii) any public international organization or any person acting in an official capacity for or on behalf of any such entity or organization; or (b) a Political Official (as defined below).

1.10. “Intellectual Property” means any intellectual property, including trademarks, trade dress, trade secrets, unregistered copyrights, registered copyrights, patentable inventions, and patents, eligible for protection under Law, including but not limited to the Trademark Act of 1946, as superseded or amended, the Copyright Act of 1976, as superseded or amended, and the Patent Act, as superseded or amended.

1.11. “Law” means any and all laws, regulations, rules, ordinances, codes, orders and decrees of any local, state, or federal governmental authority affecting this Agreement or the Services. This specifically includes but is not limited to all laws affecting the jurisdiction in which any Services or Vendor Services are being performed to the benefit of the Client.

1.12. “Money Laundering Laws” means Law relating to the receipt, transfer, transportation, use, structuring, diverting, or hiding of the proceeds of any criminal activity whatsoever.

1.13. “Person” means natural persons, corporations, limited partnerships, limited liability companies, general partnerships, joint stock companies, joint ventures, associations, companies, trusts, trust companies, business trusts or other entities or organizations, whether or not legal entities, and all governmental authorities.

1.14. “Political Official” means any (i) political party, (ii) official of any political party, or (iii) candidate for political office.

1.15 “Product” means any goods, equipment or products to be provided to Client.

1.16. “Request for Services” means the engagement by the Client of METALGEAR for the possible provision of Services by METALGEAR, to the benefit of the Client, pursuant to this Agreement.

1.17. “Safety Laws” means the United States Occupational Safety and Health Act of 1970 and any other applicable safety laws.

1.18. “Services” means the services, goods or Product to be provided by METALGEAR pursuant to this Agreement.

1.19. “Vendor” means the vendors of METALGEAR providing services, goods or Products related to or utilized in rendering the Services.

2. Services

2.1. Scope of Work. METALGEAR will provide the Services described in Schedule “C” – Scope of Work – in conformance with the requirements of this Agreement and applicable Law. However, METALGEAR is excused from performance of the Services in that a Force Majeure event that effects METALGEAR or when Client is unable to provide access to the location where the Services will be performed or executed by METALGEAR.

2.2. Request for Services. Upon the need for Services, the Client will contact METALGEAR, by contact information denoted on Schedule “B” or as otherwise arranged between the parties, and provide METALGEAR with all of the information requested by METALGEAR as further specified within Schedule “C” - Scope of Work.

2.3. General Requirement of the Services. In the execution of the Services, METALGEAR shall use commercially reasonable efforts to comply with the requirements of this Agreement and applicable Law. Furthermore, METALGEAR shall perform the Services in accordance with industry practices and standards.

3. Compensation.

3.1. Invoicing and Payment. Invoices shall be paid within 30 days of receipt by the Client. The Client will be charged and agrees to pay one and one half percent (1.5%) per month interest on any portion of any invoice issued by METALGEAR and not paid by the Client within thirty (30) days of receipt by the Client.

3.2. Amount of Payment. All payments under this Agreement shall be in currency of the United States of America. If the Client disputes and does not approve an item billed, the Client shall notify METALGEAR of the item or portion of an item disputed, but may under no circumstances withhold payment or otherwise set-off the disputed amount from any payment otherwise payable to METALGEAR. The Parties agree to work together in good faith at resulting the disputed amount. Payment of any invoice shall not prejudice the right of the Client to question the propriety of any charges therein. All payments shall be on account only and are subject to adjustment after audit.

3.3. Taxes. The Client is responsible for any and all local, state, or federal taxes, including, but not limited to any and all sales, use, excise, consumption or any other tax (except METALGEAR income taxes) or governmental charges in connection with or incident to the performance of this Agreement and any Request for Services. 

The Client agrees to reimburse METALGEAR on demand for all taxes and governmental charges, whether local, state, or federal, that METALGEAR may be required or deemed necessary to pay for the account of the Client or the Client’s employees or subcontractors or otherwise due to this Agreement.

3.4. Setoff. METALGEAR shall have the right to set-off against amounts payable by METALGEAR to the Client: (a) any amount previously owed to METALGEAR, which is determined to be an undisputed outstanding payment by the Client to METALGEAR; (b) any fine or penalty imposed by any governmental authority which is due to the Client’s failure to comply with its obligations pursuant the Agreement, its negligence or willful misconduct, and which is paid by METALGEAR; and (c) all costs (including, without limitation, attorneys’ fees) incurred by METALGEAR to discharge liens pursuant to this Agreement. METALGEAR shall also have the right to collect any and all amounts owed by Client to METALGEAR.

4. Compliance.

4.1. Compliance Generally with Laws. The Client shall comply and require its suppliers and subcontractors to comply with all Laws. The Client represents and warrants that they are and will remain in full compliance with all immigration Law. The Client expressly agrees that it will not request or direct METALGEAR, METALGEAR Vendors, or METALGEAR or Vendor personnel to violate any law. The Client further expressly agrees that it will indemnify, defend, save and hold harmless METALGEAR from any claim arising from breaches of Laws, including all claims, liabilities, obligations, damages, awards judgements, or the like plus all costs incurred, including but not limited to all fines, charges, expenses, attorney’s fees and costs,.

4.2. No Cash Payments. The Client acknowledges that all payments to METALGEAR under this Agreement shall be made only by check or wire transfer, and that none shall be made by cash or other negotiable instruments.

4.3. Records. For a period of seven years from the termination of this Agreement, the Client shall keep proper books, records and accounts of operations hereunder (and those of its Affiliates), except to the extent required to be destroyed after ceasing Services as otherwise noted within this Agreement.

4.4. Material Provision. The Client and METALGEAR agree that Article 5.2 and Article 5.3 are material provisions of this Agreement without which the Parties would not have entered into this Agreement.

5. Liability.

5.1. MUTUAL INDEMNIFICATION.

EACH PARTY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE OTHER PARTY FROM AND AGAINST ALL CLAIMS, DAMAGES, OR AMOUNTS PAYABLE (AS DEFINED HEREIN) ADVANCED OR SOUGHT BY A THIRD PARTY ARISING OUT OF, RESULTING FROM, RELATED TO OR IN CONNECTION WITH ANY ALLEGED BREACH OF CONTRACT, ACT, OR OMISSION BY THE INDEMNIFYING PARTY, INCLUDING WITHOUT LIMITATIONS ANY CLAIMS, DAMAGES, OR AMOUNTS PAYABLE ARISING OUT OF OR IN CONNECTION WITH, OR AS AN INCIDENT TO, ANY NEGLIGENCE, WILLFUL MISCONDUCT, CRIMINAL ACTS, CRIMINAL FINES, OR CRIMINAL PENALTIES OF THE INDEMNIFYING PARTY, ITS EMPLOYEES, SUBCONTRACTORS AGENTS AND OTHER REPRESENTATIVES. THE INDEMNIFYING PARTY WILL PAY THE REASONABLE ATTORNEY’S FEES OF THE INDEMNIFIED PARTY. METALGEAR WILL HAVE THE RIGHT TO CHOOSE ITS OWN COUNSEL IF BEING INDEMNIFIED AND THE RIGHT TO CHOOSE COUNSEL IF PROVIDING DEFENSE TO THE OTHER PARTY. THE INDEMNITY PROVIDED BY THE INDEMNIFYING PARTY WILL BE LIMITED TO THE INDEMNIFYING PARTY’S PROPORTIONAL RESPONSIBILITY FOR ANY BREACH, ACT, OR OMISSION GIVING RISE TO THE CLAIM FOR WHICH INDEMNITY IS SOUGHT.

5.2. NO LIABILITY FOR VENDOR’S FAILED PERFORMANCE.

THE CLIENT AGREES THAT METALGEAR WILL NOT UNDER ANY CIRCUMSTANCE BE LIABLE TO INDEMNIFY, OR DEFEND OR HOLD HARMLESS THE CLIENT FOR WHOM METALGEAR AND ANY VENDOR ARE PERFORMING SERVICES FROM AND AGAINST ANY CLAIMS OF PERSONAL INJURY, PROPERTY DAMAGE, OR DEATH BY A THIRD PARTY (AS DEFINED HEREIN) ARISING OUT OF, RESULTING FROM, RELATED TO OR IN CONNECTION WITH VENDOR’S FAILURE TO PERFORM THE SERVICES IN ACCORDANCE WITH THIS AGREEMENT, FAILURE TO PERFORM ANY SERVICES OR OBLIGATIONS IN ANY AGREEMENT BETWEEN METALGEAR AND VENDOR, BREACH OF THE STANDARD OF CARE, OR OTHER ACTION. THIS PROVISION SHALL SURVIVE TERMINATION OR OTHER EXPIRATION OF THE AGREEMENT.

5.3. LIMITATION OF LIABILITY.

NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, METALGEAR’S LIABILITY IN RELATION TO ANY CLAIM THAT THE CLIENT MAKES AGAINST METALGEAR WILL NOT EXCEED THE LESSER OF: (i) THE MAXIMUM AMOUNT PAID TO METALGEAR BY THE CLIENT DURING THE SIX MONTHS PROCEEDING THE EVENT GIVING RISE TO THE CLAIM; OR (ii) THE TOTAL FEE QUOTE METALGEAR PROVIDED TO THE CLIENT AT THE COMMENCEMENT OF THE SPECIFIC ORDER FOR SERVICES GIVING RISE TO THE CLAIM. FURTHERMORE, METALGEAR’S LIABILITY ONLY EXISTS AS TO THE DEFINED “METALGEAR” ENTITY SIGNING AS A SIGNATOR TO THIS AGREEMENT. METALGEAR WILL NOT BE LIABLE UNDER THIS AGREEMENT OR UNDER ANY CAUSE OF ACTION RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT FOR PUNITIVE, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES RELATED IN ANY WAY TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, ANTICIPATED PROFITS, REVENUE, OPPORTUNITY, FINANCING, LOSS OF GOODWILL, OR BUSINESS INTERRUPTIONS, NOTWITHSTANDING HOW ANY OF THE FOREGOING MAY BE CAUSED.

6. Termination.

6.1. Termination for Cause. The Agreement may be terminated by either Party, effective immediately, if the other Party defaults in its obligations under this Agreement. A Party defaults if it: (a) breaches this Agreement; (b) becomes insolvent (as evidenced by any means); (c) becomes the voluntary or involuntary subject of any insolvency proceedings or any petition in bankruptcy, for reorganization, or for appointment of a receiver or trustee; (d) makes a general assignment or other arrangement for the benefit of its creditors, (e) such other Party becomes nationalized or has any of its material assets expropriated, or (f) otherwise causes an occurrence that allows for termination in accordance with any other provision of this Agreement. In the event of a default under (a), the non-defaulting Party will provide the defaulting Party with notice and a thirty (30) day opportunity to cure; provided, however, if the reason for termination is based upon on-going safety issues which have failed to be resolved, an immediate safety event from which property damage or personal injury could have or did occur, or if such cure would be futile, then the non-defaulting Party shall be entitled to terminate this Agreement, as applicable, immediately with notice but without giving the defaulting Person an opportunity to cure. If the defaulting Party fails to cure the default within the cure period, if applicable, the non-defaulting Party may terminate the Agreement upon notice to the defaulting Party. If Service Provider's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client or its agents, subcontractors, consultants, or employees, Service Provider shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay. In the event of a default under (b), (c), (d), or (e), the non-defaulting Party may terminate this Agreement upon notice to the defaulting Person.

6.2. Termination for Convenience. The Agreement may be terminated by either Party, immediately and for no reason, after giving the party no less than sixty (60) days written notice of such termination. In the event of a termination for convenience by METALGEAR, the Client will comply with METALGEAR’s instructions for stopping the Services. In the event of termination for convenience by the Client, the Client will pay (i) for all services rendered to that date,(ii) plus the percentage of work completed, (iii) plus 20% of the order and (iv) plus the out-of-pocket expenses incurred by METALGEAR as a direct result of the termination through the fifth (5th) business day after a termination for convenience.

7. Confidentiality. 

7.1 Disclosure. Except as may be necessary to enforce its rights under this Agreement, as otherwise may be necessary to respond in any legal proceeding (including any deposition, interrogatory, subpoena, or civil investigative demand), or as otherwise may be necessary to procure any insurance or bonding required by this Agreement, the Client will not disclose to any third party, other than the Client’s parents, Affiliates, officers, directors, employees, agents, permitted subcontractors or other representatives who have a need to know, any Confidential Information. The Client’s obligations will survive the expiration or termination of this Agreement.

7.2 Access. Each party acknowledges that in the course of performing its obligations under this Agreement, it may be furnished with, receive, or otherwise have access to Confidential Information, and information of or concerning the other party which the other party considers to be confidential, proprietary, a trade secret or otherwise restricted, and whether or not such information is labeled as confidential or proprietary, and whether disclosed in connection with any inspection, demonstration, observation or presentation, whether written or oral, tangible or intangible, whether machine readable or otherwise. 

7.3 Ownership. All Confidential Information furnished by either Party in the course of performing its obligations under this Agreement shall remain the property of and be deemed proprietary. Both Parties agree: (i) to receive such Confidential Information in strict confidence and not disclose it to any third party without the prior written consent of the other; (ii) to accord such Confidential Information at least the same level of protection against unauthorized use or disclosure as the disclosing Party customarily accords to its own confidential, proprietary or trade secret information of a like nature, but in no event less than reasonable care; and (iii) to use such Confidential Information solely and exclusively for the purposes of and in accordance with the these Terms.

7.4. Restriction on Copying. Recipient shall not make any copies of discloser’s Confidential Information except as necessary to achieve the purpose of the Agreement, nor shall a receiving party reverse engineer, reverse compile or otherwise seek to acquire proprietary information or intellectual property of a disclosing party via disclosed Confidential Information.

7.5. Destruction or Return. Upon the earlier of the termination of this Agreement or the written request of discloser, a recipient shall promptly either destroy and certify such destruction to discloser or return to discloser all of discloser’s Confidential Information that exists in tangible form and that is in recipient’s custody, possession, or control. recipient shall require the same of any representative with whom Confidential Information has been shared. Recipient shall not keep any archival copies of discloser’s Confidential Information unless authorized to do so by discloser in writing. Notwithstanding anything herein to the contrary, the parties shall each have the right to retain a copy of the Confidential Information of the other party only to the extent required for legal, regulatory, or other governmental compliance purposes and neither party shall be obligated to return or destroy Confidential Information contained in its electronic back-up systems, provided that any retained Confidential Information shall remain subject to the protection of this Agreement for so long as it is retained.

7.6  Exceptions. Neither party shall be liable for disclosure of any particular Confidential Information to the other party if the same: (i) is in the public domain at the time of its disclosure or thereafter enters the public domain through no fault of that a party; (ii) is or becomes known to either party on a non-confidential basis without breach of any obligation of confidentiality; (iii) is independently developed by a party without reference to the other party’s Confidential Information; or (iv) is legally required to be disclosed (provided that a party promptly informs the other party of the requirement and affords such party a reasonable opportunity to resist the required disclosure).

If the parties entered into a separate confidentiality agreement or non-disclosure agreement (a “Non-Disclosure Agreement”), such Non-Disclosure Agreement shall be and remain in full force and effect as provided therein. In the event of any conflict between the terms of these Terms and the terms of any such Non-Disclosure Agreement, the terms of such Non-Disclosure Agreement shall control.

7.7 Term. The term of this Agreement for the purpose of disclosing Confidential Information commences on the date of this Agreement set forth above and shall continue so long as the parties agree to disclose Confidential Information in connection with the Agreement. Notwithstanding the foregoing, recipient’s confidentiality obligations regarding any disclosed Confidential Information shall extend for a period of three (3) years from the date of disclosure, except for source code, trade secrets (as defined in the Uniform Trade Secrets Act), and non-public information concerning the financial condition of discloser, for which confidentiality obligations shall extend in perpetuity. Notwithstanding any termination of this Agreement, any terms of this Agreement which by their nature extend beyond its termination remain in effect until fulfilled, and apply to respective successors and assignees.

8. Miscellaneous.

8.1. Time of the Essence. Time is expressly declared to be the essence of this Agreement. In the event that the Client fails or refuses to comply with the terms of this Agreement, in whole or in part, or shall unreasonably delay the performance of Services, METALGEAR, at its election, may terminate this Agreement or it may, if it so elects, complete the Services for which the Client will be responsible for paying METALGEAR the reasonable value of said Services.

8.2. Governing Law. This Agreement and any and all Claims that in any way arise out of or related to this Agreement shall be governed exclusively by the laws of the state of New Jersey.

8.3. Choice of Venue & Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by a single arbitrator in arbitration administered in New Jersey, by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction over the arbitration proceeding. The parties expressly agree that the arbitrator shall have the power to determine any questions of jurisdiction or arbitrability, and further expressly agree that both parties are barred from bringing any action, claim, or collateral attack seeking to dismiss or abate an arbitration claim made pursuant to this Agreement. The parties expressly agree that the decision of the arbitrator is final and that each party is barred from challenging the decision of the arbitrator under the Federal Arbitration Act or any other relevant law on any grounds other than that the award was procured by corruption, fraud, or undue means. The parties will be allowed written and deposition discovery during the course of the arbitration.

8.4. Attorneys’ Fees. If either the Client or METALGEAR institutes suit or arbitration to enforce any right or obligation arising under this Agreement, the prevailing Party will be entitled to recover reasonable attorneys’ fees from the other Party.

8.5. Notices. Any notice incorporated into this Agreement will be in writing either delivered by a nationally recognized overnight courier to METALGEAR’s address specified within Schedule “B”. Any such notice shall be deemed to have been given or made as of the date delivered by the courier. Either Party may change their notice address upon notice to the other Party at least ten (10) days in advance of the effective date of the change.

8.6. Waiver. No waiver by any Person of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Person so waiving. No waiver by any Person shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

8.7. Non-Exclusivity. Nothing in this Agreement shall prevent METALGEAR from rendering services similar to those provided in terms of this Agreement to any other person, firm or company.

8.8. Force Majeure. METALGEAR shall not be in default of this Agreement or liable for any loss or damage of any kind by reason of, or resulting from any delay in the performance of orders or contracts, or in the delivery or shipment of Products, or the delay of the Vendor in the performance of, or failure to perform, any of its obligation, or for any damages suffered by the other party by reason of such delay when such delay is directly caused by a Force Majeure event. Upon termination of such Force Majeure event, METALGEAR shall promptly resume its obligations under the Agreement. In the event, however, METALGEAR’s or Vendor’s failure to perform due to Force Majeure extends more than ninety (90) days, the Client shall be entitled to obtain the Services elsewhere, and shall not be required to obtain Services from METALGEAR upon cessation of the Force Majeure event. 

8.9. Assignment. Client may only assign this Agreement or a right under this Agreement with the prior written consent of METALGEAR. Any purported assignment in violation of this provision will be void ab initio.

8.10. Survival. Any indemnity or obligation of confidence under this Agreement is independent and survives termination of this Agreement. Any other term by its nature intended to survive termination of this Agreement survives termination of this Agreement.

8.11. Modification. No amendment to this Agreement will be effective unless made in writing and signed by METALGEAR and the Client.

8.12. Severability. If any provision of this Agreement is partially or completely unenforceable pursuant to Law, that provision will be deemed amended to the extent necessary to make it enforceable, if possible. If not possible, then that provision will be deemed deleted. If any provision is so amended or deleted, then the remaining provisions will remain in full force and effect.

8.13. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original and part of one and the same document. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy thereof.

8.14. Entire Agreement. This Agreement represents the entire agreement of METALGEAR and the Client with respect to the matters addressed therein and supersedes and replaces any previous agreements, oral or written, between the Parties thereto with respect to such matters and the terms and conditions in the Agreement will control, except with respect to any conflicts in relation to insurance policy requirements set forth in this Agreement, in which the higher insurance policy requirements shall apply.

8.15. Interpretation. For purposes of this Agreement, (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation;” (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole, including as may be supplemented. Unless the context otherwise requires, references herein: (x) to sections, schedules, and exhibits mean the sections of, and schedules and exhibits attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Schedules referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. References in this Agreement to “days,” “months” or “years” means calendar days, months and years unless otherwise indicated.

8.16. Continuation of Services. In the event that a dispute arises between METALGEAR and the Client, METALGEAR will continue to perform Services as required by this Agreement pending the final resolution of the dispute and Client will continue performing under this Agreement, including making timely payment for any Services provided. Notwithstanding anything to the contrary, at the option of METALGEAR, no Services will be rendered by METALGEAR as a result of a dispute between the Client and METALGEAR if the dispute is not resolved within 10 days after the date the invoice is due to be paid.

8.17. No Third-Party Rights or Beneficiaries. The Parties agree that third parties do not have rights under this Agreement and that no third-party beneficiaries exist as to this Agreement.