THE DATE OF TERMINATION SHALL BE CANCELLED;
(B)
THE COMPANY WILL BE ENTITLED TO HAVE DELIVERED, AT ITS SOLE
DISCRETION, THE GALLIUM ORDERED PRIOR TO TERMINATION ON A LETTER OF CREDIT,
C.O.D., OR CASH-IN-ADVANCE BASIS;
(C)
ALL SUMS OWED TO RECAPTURE BY THE COMPANY SHALL BECOME DUE AND
PAYABLE WITHIN THIRTY (30) DAYS UPON THE EFFECTIVE DATE OF TERMINATION; AND
(D)
NEITHER PARTY WILL BE LIABLE FOR DAMAGES OF ANY KIND AS A RESULT
OF EXERCISING ITS RIGHT TO TERMINATE THIS AGREEMENT ACCORDING TO ITS TERMS, AND
TERMINATION WILL NOT AFFECT ANY OTHER RIGHT OR REMEDY AT LAW OR IN EQUITY OF
EITHER PARTY.
14.
GENERAL.
14.1
WAIVER.
NO TERM OR PROVISION HEREOF WILL BE CONSIDERED WAIVED BY
EITHER PARTY, AND NO BREACH EXCUSED BY EITHER PARTY, UNLESS SUCH WAIVER OR
CONSENT IS IN WRITING SIGNED ON BEHALF OF THE PARTY AGAINST WHOM THE WAIVER IS
ASSERTED.
NO CONSENT BY EITHER PARTY TO, OR WAIVER OF, A BREACH BY EITHER
PARTY, WHETHER EXPRESS OR IMPLIED, WILL CONSTITUTE A CONSENT TO, WAIVER OF, OR
EXCUSE OF ANY OTHER, DIFFERENT, OR SUBSEQUENT BREACH BY EITHER PARTY.
14.2
SEVERABILITY.
IF ANY PART OF THIS AGREEMENT IS FOUND INVALID OR
UNENFORCEABLE, THAT PART WILL BE AMENDED TO ACHIEVE AS NEARLY AS POSSIBLE THE
SAME ECONOMIC EFFECT AS THE ORIGINAL PROVISION AND THE REMAINDER OF THIS
AGREEMENT WILL REMAIN IN FULL FORCE.
14.3
CHOICE OF LAW.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE UNITED STATES AND THE STATE OF CALIFORNIA AS
APPLIED TO AGREEMENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN
CALIFORNIA BETWEEN CALIFORNIA RESIDENTS.
THE PARTIES AGREE THAT
6
THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS
(1980) IS SPECIFICALLY EXCLUDED FROM APPLICATION TO THIS AGREEMENT.
14.4
CHOICE OF FORUM.
THE PARTIES HEREBY SUBMIT TO THE JURISDICTION OF,
AND WAIVE ANY VENUE OBJECTIONS AGAINST, THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA, AND THE SUPERIOR AND MUNICIPAL COURTS OF THE
STATE OF CALIFORNIA, ALAMEDA COUNTY, IN ANY LITIGATION ARISING OUT OF THE
AGREEMENT.
14.5
NOTICES.
ANY NOTICE PROVIDED FOR OR PERMITTED UNDER THIS AGREEMENT
WILL BE TREATED AS HAVING BEEN GIVEN WHEN (A) DELIVERED PERSONALLY, (B) SENT BY
CONFIRMED TELEX OR TELECOPY, (C) SENT BY COMMERCIAL OVERNIGHT COURIER WITH
WRITTEN VERIFICATION OF RECEIPT, OR (D) MAILED POSTAGE PREPAID BY CERTIFIED OR
REGISTERED MAIL, RETURN RECEIPT REQUESTED, TO THE PARTY TO BE NOTIFIED, AT THE
ADDRESS SET FORTH BELOW, OR AT SUCH OTHER PLACE OF WHICH THE OTHER PARTY HAS
BEEN NOTIFIED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION.
If to Recapture:
AXT
4281 Technology Drive
Fremont, California 94538
Attention: Mr. Wilson Cheung
Facsimile: 510-438-4793
If to Company:
Recapture Metals Limited
625 Neal Drive
Peterborough, Ontario
Canada K9J 6X7
Attention: Mr. Mark Tindale
Facsimile: (705) 755-0163
Such notice will be treated as having been received upon the earlier of actual
receipt or five (5) days after posting.
14.6
ENTIRE AGREEMENT.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT
BETWEEN