(b) By the Company. The Company shall indemnify, defend (at Contractor’s request) and hold Contractor harmless from and against any and all Damages incurred by Contractor to the fullest extent permitted under the Company’s By-Laws, Articles of Incorporation, Delaware Law, and any Indemnification Agreement between the Company and Contractor. The provisions of the Company’s By-Laws, Articles of Incorporation, Delaware Law and any Indemnification Agreement between the Company and Contractor shall control in the event of any discrepancy between this Agreement and any such documents.
(c) Procedures. If Contractor or the Company has any knowledge of any actual or threatened action, suit or proceeding, whether civil, criminal, administrative or investigative, as to which such party may request indemnity under this provision, the party having such knowledge will give the other party prompt written notice thereof. The indemnifying party shall be entitled to assume the defense of any such proceeding and the indemnified party will use all reasonable efforts to cooperate with such defense.
16. Legal Fees. In the event either party institutes any action or proceeding to enforce the terms and conditions of this Agreement, the non-prevailing party in any final, non-appealable determination will promptly, upon demand, reimburse the prevailing party for all costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) incurred by the prevailing party in any such action or proceeding.
17. Right of Set-Off. Contractor acknowledges and agrees that the Company will have the right to offset any amounts due by Contractor to the Company against any amounts due to Contractor by the Company.
18. Independent Contractor. Contractor is an independent contractor of the Company, and Contractor is solely responsible for the manner and form by which Contractor performs the Services under this Agreement. Contractor hereby assumes all liability for the payment of any and all amounts due with respect to Contractor’s compensation hereunder for social security, withholding, income or similar requirements. As an independent contractor, the Company is under no obligation to withhold any federal, state or other employment taxes from any compensation paid to Contractor by the Company, and the Company will issue to Contractor annually a 1099 Statement reflecting the fees paid to Contractor each year during the term. Contractor will not have authority or represent himself as having the authority to bind or obligate the Company in any manner whatsoever.
19. Notices. All notices, requests, demands and other communications permitted or required under this Agreement will be in writing and will be deemed duly given (a) upon delivery if delivered in person, (b) the next business if sent by overnight courier services, or (c) three (3) business days after deposit if sent by U. S. Mail, certified or registered, return receipt requested, in each case postage-prepaid and addressed to the parties at their respective addresses set forth on the signature page hereto or to such other address(es) as a party hereto may designate in writing from time to time in accordance with this paragraph.
20. Dispute Resolution; Governing Law; Jurisdiction. The parties will attempt in good faith to resolve any issue, dispute, claim or controversy arising out of or relating to this Agreement and their respective rights and obligations hereunder. If any issue, dispute, claim or controversy arising out of, or in any way related to, this Agreement is not resolved in a reasonable manner within a reasonable time period, at the request of either party, the matter will be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The parties agree that the arbitrator shall have authority to resolve all threshold issues, including those related to the basic formation and validity of this Agreement. The arbitration will take place in Boston, Massachusetts, (or another location agreed upon by the parties). The arbitration award will be valid and binding upon the parties, and judgment thereon may be entered and enforced as a final judgment in any court of competent jurisdiction. However, the parties further agree that claims for injunctive relief or other equitable relief (including but not limited to claims involving trade secrets, confidential information, non-competition, non-solicitation and intellectual property rights) may be filed in the state or federal courts of Massachusetts (or any other jurisdiction selected by the Company for such action) for an order effective until the conclusion of the arbitration and enforcement of the arbitration award and such claims may be filed without a good faith attempt to resolve issues underlying such claims. All formal service or notice via arbitration or litigation may be made in accordance with Section 19 of this Agreement.