OR TO
PAY DAMAGES OR EXPENSES INCURRED BY LICENSEE FOR ANY CLAIM OF INFRINGEMENT
ARISING FROM: (I) LICENSEE'S DESIGNS, SPECIFICATIONS OR EXPRESS INSTRUCTIONS
REGARDING THE BINARY SOFTWARE; (II) USE OF THE BINARY SOFTWARE BY LICENSEE WITH
ANY HARDWARE OR SOFTWARE OTHER THAN THAT SPECIFIED IN THE DOCUMENTATION, IF SUCH
CLAIMED INFRINGEMENT WOULD HAVE BEEN AVOIDED BY NOT USING SUCH OTHER HARDWARE OR
SOFTWARE; OR (III) MODIFICATION TO THE BINARY SOFTWARE BY LICENSEE OTHER THAN BY
LICENSOR, WHERE SUCH MODIFICATION IS DIRECTLY OR INDIRECTLY RESPONSIBLE FOR THE
CLAIMED INFRINGEMENT.
1.12.5.
INDEMNIFICATION:
EXCEPT FOR INFRINGEMENT CLAIMS
INDEMNIFIED BY LICENSOR PURSUANT TO THIS SECTION, LICENSEE SHALL DEFEND,
INDEMNIFY AND HOLD HARMLESS LICENSOR AGAINST ANY AND ALL CLAIMS, DAMAGES AND
EXPENSES (INCLUDING REASONABLE LEGAL FEES) ARISING FROM LICENSEE'S USE OF THE
BINARY SOFTWARE AND LICENSOR'S USE OF THE LICENSEE CONTENT.
1.13.
MISCELLANEOUS
1.13.1.
ENTIRE AGREEMENT. THIS AGREEMENT CONSTITUTES THE ENTIRE
AGREEMENT BETWEEN THE PARTIES CONCERNING THE SUBJECT MATTER HEREOF AND
SUPERSEDES ALL PRIOR AND CONTEMPORANEOUS AGREEMENTS AND COMMUNICATIONS, WHETHER
ORAL OR WRITTEN, BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF, AND
ALL PAST COURSES OF DEALING OR INDUSTRY CUSTOM. THE TERMS AND CONDITIONS OF THIS
AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING PURCHASE ORDER, SALES
ACKNOWLEDGEMENT, OR OTHER WRITTEN INSTRUMENT SUBMITTED BY LICENSEE IN CONNECTION
WITH THE BINARY SOFTWARE.
17
1.13.2.
AMENDMENT.
NEITHER THIS AGREEMENT NOR ANY DOCUMENT MADE A
PART HEREOF MAY BE AMENDED, MODIFIED OR WAIVED IN ANY RESPECT WHATSOEVER EXCEPT
PURSUANT TO A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF EACH
PARTY HERETO.
1.13.3.
WAIVER.
NO DELAY ON THE PART OF EITHER PARTY IN
EXERCISING ANY RIGHT OR REMEDY NOR ANY FAILURE TO ENFORCE COMPLIANCE UNDER THIS
AGREEMENT SHALL OPERATE AS A WAIVER THEREOF, UNLESS EXPRESSLY AGREED TO IN
WRITING BY SUCH PARTY.
ANY SUCH WRITTEN WAIVER MUST REFER TO A SPECIFIC FAILURE
TO COMPLY AND SHALL NOT HAVE THE EFFECT OF WAIVING ANY SUBSEQUENT FAILURES TO
COMPLY.
THE SINGLE OR PARTIAL EXERCISE OF ANY RIGHT OR REMEDY UNDER THIS
AGREEMENT BY EITHER PARTY SHALL NOT PRECLUDE ANY OTHER OR FURTHER EXERCISE OF
SUCH RIGHT OR REMEDY.
1.13.4.
SEVERABILITY. IT IS THE INTENTION OF THE PARTIES THAT, IF
ANY PROVISION OF THIS AGREEMENT SHALL BE HELD INVALID OR UNENFORCEABLE IN ANY
RESPECT, SUCH PROVISION SHALL BE ENFORCED TO THE MAXIMUM EXTENT PERMITTED BY
LAW, AND THAT THE REMAINING PROVISIONS OF THIS AGREEMENT SHALL CONTINUE IN FULL
FORCE AND EFFECT.
1.13.5.
CAPTIONS:
THE HEADINGS AND CAPTIONS OF THIS AGREEMENT ARE
INSERTED FOR REFERENCE CONVENIENCE AND DO NOT DEFINE, LIMIT OR DESCRIBE THE
SCOPE OR INTENT OF THIS AGREEMENT OR ANY PARTICULAR SECTION, PARAGRAPH, OR
PROVISION.
1.13.6.
GOVERNING LAW AND JURISDICTION.
THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO
AND THE LAWS OF CANADA APPLICABLE THERETO, WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
SUBJECT TO SUBSECTION 1.13.7, BOTH PARTIES HERETO HEREBY
IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION OF THE COURT OF COMPETENT
JURISDICTION IN THE PROVINCE OF ONTARIO FOR ALL QUESTIONS