ANY TIME PERFORMANCE BY THE OTHER PARTY
OF ANY OF THE PROVISIONS OF THIS AGREEMENT, SHALL IN NO WAY BE CONSTRUED TO BE A
PRESENT OR FUTURE WAIVER OF SUCH PROVISIONS, NOR IN ANY WAY AFFECT THE RIGHT OF
EITHER PARTY TO ENFORCE EACH AND EVERY SUCH PROVISION THEREAFTER.
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28.7
SEVERABILITY
IF ANY TERM, CONDITION, OR PROVISION OF THIS AGREEMENT, OR PORTION THEREOF, IS
FOUND TO BE INVALID, UNLAWFUL, OR UNENFORCEABLE TO ANY EXTENT, THE PARTIES SHALL
ENDEAVOR IN GOOD FAITH TO AGREE TO SUCH AMENDMENTS THAT WILL PRESERVE, AS FAR AS
POSSIBLE, THE INTENTIONS EXPRESSED IN THIS AGREEMENT.
SUCH INVALID TERM,
CONDITION OR PROVISION WILL BE SEVERED FROM THE REMAINING TERMS, CONDITIONS AND
PROVISIONS, WHICH WILL CONTINUE TO BE VALID AND ENFORCEABLE TO THE FULLEST
EXTENT PERMITTED BY LAW.
28.8
NO THIRD PARTY BENEFICIARIES
UNLESS OTHERWISE EXPRESSLY PROVIDED, NO PROVISIONS OF THIS AGREEMENT ARE
INTENDED OR SHALL BE CONSTRUED TO CONFER UPON OR GIVE TO ANY PERSON OR ENTITY
OTHER THAN UTS, EMS, AND DESIGNATED THIRD PARTIES ANY RIGHTS, REMEDIES OR OTHER
BENEFITS UNDER OR BY REASON OF THIS AGREEMENT.
28.9
INTERPRETATION
UNLESS THE CONTEXT CLEARLY INDICATES OTHERWISE, IN THIS AGREEMENT, THE TERMS SET
OUT IN EXHIBIT E DEFINITIONS SHALL HAVE THE MEANING ASSIGNED TO THEM THEREIN.
THIS AGREEMENT REPRESENTS THE NEGOTIATED AGREEMENT OF THE PARTIES, WITH THE
ADVICE AND ASSISTANCE OF COUNSEL, AND SHALL NOT BE CONSTRUED AGAINST EITHER
PARTY AS THE DRAFTER THEREOF.
THIS AGREEMENT IS WRITTEN IN ENGLISH AND THE
CONTROLLING LANGUAGE OF THE AGREEMENT SHALL BE ENGLISH.
28.10
ENTIRE AGREEMENT
THIS AGREEMENT AND THE EXHIBITS ATTACHED HERETO, REPRESENT AND CONSTITUTE THE
ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PRIOR AGREEMENTS BETWEEN
THE PARTIES, WHETHER WRITTEN OR ORAL.
THE NON-DISCLOSURE AGREEMENT EXECUTED BY
THE PARTIES IS ATTACHED AS EXHIBIT F AND SHALL BE INCORPORATED INTO THIS
AGREEMENT.
THE PROVISIONS OF THE NON-DISCLOSURE AGREEMENT SHALL SURVIVE THE
TERMINATION OF THIS AGREEMENT. THIS AGREEMENT MAY ONLY BE AMENDED IN WRITING
SIGNED BY DULY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES.
28.11 Order of Precedence
All quotations, Orders, acknowledgments and invoices issued pursuant to this
Agreement are issued for convenience of the Parties only and shall be subject to
the provisions of this Agreement and the Exhibits hereto.
When interpreting
this Agreement, precedence shall be given to the respective parts in the
following descending order: (a) this Agreement; (b) Schedules and Exhibits to
this Agreement; and (c) if Orders are used to release product, those portions of
the Order that are not pre-printed and which are accepted by EMS. The Parties
acknowledge that (y) the preprinted provisions on the reverse side of any such
quotation, Order, acknowledgment or invoice and (z) all terms other than the
specific terms set forth in Section 5(i)-(vi) shall be deemed deleted and of no
effect whatsoever.
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28.12
COUNTERPARTS
THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE COUNTERPARTS, EACH OF WHICH WILL
BE DEEMED AN ORIGINAL, AND ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE
SAME INSTRUMENT.
28.13
NON-EXCLUSIVITY