RIGHT OR EXCUSE A
SIMILAR SUBSEQUENT FAILURE TO PERFORM ANY SUCH TERM OR CONDITION.
NO WAIVER BY
EITHER PARTY OF ANY CONDITION OR TERM IN ANY ONE OR MORE INSTANCES SHALL BE
CONSTRUED AS A CONTINUING WAIVER OF SUCH CONDITION OR TERM OR OF ANOTHER
CONDITION OR TERM.
12.9
SEVERABILITY.
IF ANY PROVISION HEREOF SHOULD BE HELD INVALID, ILLEGAL
OR UNENFORCEABLE IN ANY JURISDICTION, THE PARTIES SHALL NEGOTIATE IN GOOD FAITH
A VALID, LEGAL AND ENFORCEABLE SUBSTITUTE PROVISION THAT MOST NEARLY REFLECTS
THE ORIGINAL INTENT OF THE PARTIES AND ALL OTHER PROVISIONS HEREOF SHALL REMAIN
IN FULL FORCE AND EFFECT IN SUCH JURISDICTION AND SHALL BE LIBERALLY CONSTRUED
IN ORDER TO CARRY OUT THE INTENTIONS OF THE PARTIES HERETO AS NEARLY AS MAY BE
POSSIBLE.
SUCH INVALIDITY, ILLEGALITY OR UNENFORCEABILITY SHALL NOT AFFECT THE
VALIDITY, LEGALITY OR ENFORCEABILITY OF SUCH PROVISION IN ANY OTHER
JURISDICTION.
12.10
ENTIRE AGREEMENT.
THIS AGREEMENT SET FORTH ALL THE COVENANTS, PROMISES,
AGREEMENTS, WARRANTIES, REPRESENTATIONS, CONDITIONS AND UNDERSTANDINGS BETWEEN
THE PARTIES HERETO AND SUPERSEDES AND TERMINATES ALL PRIOR AGREEMENTS AND
UNDERSTANDING BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF.
THERE
ARE NO COVENANTS, PROMISES, AGREEMENTS, WARRANTIES, REPRESENTATIONS CONDITIONS
OR UNDERSTANDINGS, EITHER ORAL OR WRITTEN, BETWEEN THE PARTIES RELATING TO THE
SUBJECT MATTER HEREOF OTHER THAN AS SET FORTH HEREIN.
NO SUBSEQUENT ALTERATION,
AMENDMENT, CHANGE OR ADDITION TO THIS AGREEMENT SHALL BE BINDING UPON THE
PARTIES HERETO UNLESS REDUCED TO WRITING AND SIGNED BY THE RESPECTIVE AUTHORIZED
OFFICERS OF THE PARTIES.
12.11
INDEPENDENT CONTRACTORS.
NOTHING HEREIN SHALL BE CONSTRUED TO CREATE
ANY RELATIONSHIP OF EMPLOYER AND EMPLOYEE, AGENT AND PRINCIPAL, PARTNERSHIP OR
JOINT VENTURE BETWEEN THE PARTIES.
EACH PARTY IS AN INDEPENDENT CONTRACTOR.
NEITHER PARTY SHALL ASSUME, EITHER DIRECTLY OR INDIRECTLY, ANY LIABILITY OF OR
FOR THE OTHER PARTY.
NEITHER PARTY SHALL HAVE THE AUTHORITY TO BIND OR OBLIGATE
THE OTHER PARTY AND NEITHER PARTY SHALL REPRESENT THAT IT HAS SUCH AUTHORITY.
12.12
HEADINGS.
HEADINGS USED HEREIN ARE FOR CONVENIENCE ONLY AND SHALL NOT
IN ANY WAY AFFECT THE CONSTRUCTION OF OR BE TAKEN INTO CONSIDERATION IN
INTERPRETING THIS AGREEMENT.
12.13
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN TWO COUNTERPARTS, EACH
OF WHICH SHALL BE DEEMED AN ORIGINAL, AND ALL OF WHICH TOGETHER, SHALL
CONSTITUTE ONE AND THE SAME INSTRUMENT.
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[ * ] = Confidential treatment of certain confidential information contained in
this document, marked by brackets, is being sought pursuant to Rule 24b-2 of the
Securities Exchange Act of 1934, as amended.
12.14
CONSTRUCTION.
THE DEFINITIONS OF THE TERMS HEREIN WILL APPLY EQUALLY TO
THE SINGULAR AND PLURAL FORMS OF THE TERMS DEFINED.
THE WORDS "INCLUDE,"
"INCLUDES" AND "INCLUDING" WILL BE DEEMED TO BE FOLLOWED BY THE PHRASE "WITHOUT
LIMITATION."
THE PARTIES EACH ACKNOWLEDGE THAT THEY HAVE HAD THE ADVICE OF
COUNSEL WITH RESPECT TO THIS AGREEMENT, THAT THIS AGREEMENT HAS BEEN JOINTLY
DRAFTED, AND THAT NO RULE OF STRICT CONSTRUCTION WILL BE APPLIED IN THE
INTERPRETATION HEREOF.
UNLESS THE CONTEXT REQUIRES OTHERWISE, (I) ANY
DEFINITION OF OR REFERENCE TO ANY