10. GENERAL PROVISIONS
10.1 Diversity. BCG believes that diversity contributes to excellence. As a matter of policy, BCG staffs its teams with an appropriate mix of consultants from its offices around the world, without regard to gender, race, sexual orientation, religion or other protected class or characteristics.
10.2 Compliance with Law. BCG will comply with all BCG Laws. Company will comply with all Company Laws and will operate and utilize the Services and Deliverables in a manner that complies with all such laws and regulations, including without limitation, export restriction.
10.3 Company acknowledges and agrees that BCG does not provide fairness opinions or valuations of market transactions or legal, accounting, or tax advice. Company agrees that it will retain its own experts in these disciplines as it deems necessary
10.4 Dispute Resolution. If a dispute arises out of or in connection with the Engagement, a Party will be entitled to refer the dispute by written notice (“Dispute Notice”) for resolution by the Parties’ respective project managers who will meet to resolve the dispute within 15 business days of the date of such Dispute Notice. If the Parties fail to resolve the dispute within 15 business days of the date of the Dispute Notice, the dispute will then be automatically referred to a senior representative of each Party, who will meet to resolve the dispute within 30 business days of the date of the Dispute Notice. If the dispute cannot be resolved in accordance with this Section within 30 business days of the date of the Dispute Notice, either Party will be entitled to refer the dispute to a mediation provider agreed by the Parties, such mediation to be held as soon as possible but in any event within two months of the date of the Dispute Notice unless otherwise agreed between the Parties. If the Dispute is not resolved within three months of the date of the Dispute Notice, then either Party may start proceedings in accordance with Section 10.7. Nothing in the Agreement limits or in any way restricts the ability of a Party to seek injunctive relief in a court or other judicial body.
10.5 No Publicity. No Party will make any public announcement or press release regarding the Engagement or Services performed without the prior written consent of the other Party; provided, however, BCG has the right to refer to Company as a client of BCG for promotional purposes.
10.6 Governing Law. Any dispute arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore. The number of arbitrators shall be three. Each party shall nominate an arbitrator to the SIAC. The Chair shall be nominated by the party-nominated arbitrators. The seat, or legal place, of arbitration shall be Singapore. The language to be used in the arbitral proceedings shall be English. The governing law of the contract shall be the substantive law of Singapore.
10.7 Severability. The provisions of the Agreement will be deemed severable, and the invalidity or unenforceability of any one or more of its provisions will not affect the validity and enforceability of its other provisions. If any provision is held to be invalid, void, or unenforceable, the remaining provisions will continue in full force. In lieu of any invalid provision, a substitute provision will apply retroactively which comes as close as legally and commercially possible to the intent which the Parties had or would have had, according to the spirit and purpose of the Agreement.
10.8 Notices. All Notices required or permitted under the Agreement will be in writing, reference the Terms and Conditions and will be delivered to the Parties at the addresses referenced in the Terms and Conditions: (a) by hand (and will be deemed to have been received on signature of a delivery receipt or at the time the Notice is left at the proper address); or (b) by certified mail or deposit with a nationally recognized overnight carrier (and will be deemed delivered at 9.00am on the second business day after depositing or, if earlier, the time recorded by the mail service); or (c) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
10.9 Relationship of the Parties. BCG is an independent contractor. Nothing in the Agreement will be interpreted or construed as creating or evidencing any partnership or agency between the Parties or as imposing any partnership or agency obligation or liability upon any Party. No Party is authorized to enter into or incur any agreement, commitment, obligation, or liability in the name of, or on behalf of, the other Party.
10.10 Third Party Beneficiaries. The Agreement exists solely for the benefit of the Parties to the Terms and Conditions. Only a Party, or in the case of BCG its Affiliates, may enforce the terms of the Agreement in respect of the relevant Engagement. The Parties to the Terms and Conditions do not intend to confer any right or benefit in connection with the Terms and Conditions on any third party, and The Contracts (Rights of Third Parties) Act (Cap 53B) of Singapore shall not apply to the Agreement, except that a Party’s Affiliates can enforce their rights to be indemnified pursuant to sections 8.2 and 8.3.
10.11 Waiver. The delay or failure of a Party to insist upon or enforce the other Party’s strict performance of any provision herein, or to exercise any right or remedy under the Agreement, will not be interpreted or construed as a waiver of that Party’s right to assert or rely upon any such provision, right or remedy in that, or any other, instance.
10.12 Force Majeure. Except for the obligation to pay the applicable Fees when due, no Party will be liable to any other Party for failure or delay in performance caused by a Force Majeure Event, and such failure or delay will not constitute a material breach of the Agreement.
10.13 Survival. All provisions of the Agreement which are by their nature intended to survive the expiration or termination of the Engagement will survive, including but not limited to Sections 2.3 (Effect of Termination), 3 (Intellectual Property Rights), 5 (Fees and Payment), 6 (Confidentiality), 8 (Indemnity), 9 (Limitation of Liability), 10.3 (Dispute Resolution), 10.5 (No Publicity), 10.6 (Restrictions on Personnel), 10.7 (Governing Law), 10.8 (Severability), 10.9 (Notices), 10.11 (third party Beneficiaries), 10.12 (Waiver), 10.14 (Survival) and 10.15 (Remedies Cumulative).
10.14 Remedies Cumulative. Except as otherwise provided in the Agreement, the remedies specifically provided for herein are intended to be cumulative and will not be deemed to exclude any other right or remedy that a Party may have at law or in equity.
10.15 Assignment. A Party may assign its rights under the Agreement to any person or entity in connection with a merger, acquisition or sale of all or substantially all of its assets to which the Agreement pertains, provided that, in the case of an assignment by Company, Company is not permitted to assign such rights to a competitor of BCG. BCG is expressly permitted to assign its rights under the Agreement to any of its Affiliates. Except as specifically provided in this section, no Party will voluntarily, by operation of law, or otherwise, assign any rights or delegate any obligations under the Agreement, other than the right to receive payments, without the prior written consent of the other Party, and any attempt to do so is void. The Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
10.16 Entire Agreement. The Terms and Conditions signed by the Parties, these Terms, and any mutually agreed schedules, contain the entire agreement and understanding by and between the Parties with respect to the Engagement to the exclusion of all other terms, including, but not limited to, any purchase order or other standard terms of Company. No prior representations, promises, agreements, or understandings, whether written or oral, will be of any force or effect. No change or amendment is binding on any Party unless in writing and signed by the Parties. In the event of conflict between these Terms and the Terms and Conditions, the provisions of these Terms will prevail, unless expressly varied in the Terms and Conditions.
10.17 Counterparts. The Parties agree that the Terms and Conditions may be executed in counterparts, each of which will be deemed an original, but which together constitute one and the same instrument.
10.18 Interpretation. There is no rule of interpretation against the drafter in drafting these Terms. Both Parties acknowledge they have had ample time to review and negotiate the Terms and have had the opportunity to review the Terms with their respective legal advisers.