AFFECT THE OBLIGATION OF EITHER PARTY
TO MAKE PAYMENTS FOR WHICH SUCH PARTY IS LIABLE PRIOR TO SUCH TERMINATION, ANY
REMEDIES OF NUVASIVE UNDER SECTION 5, ANY PARTY'S INDEMNIFICATION OBLIGATIONS
UNDER SECTION 7 OR THE OBLIGATIONS OF CONFIDENTIALITY SPECIFIED IN SECTION 9
HEREOF.
11.
NOTICES.
ALL NOTICES REQUIRED OR PERMITTED TO BE GIVEN UNDER THIS
AGREEMENT SHALL BE IN WRITING AND SHALL BE ADDRESSED TO THE PARTY AT THE ADDRESS
AND/OR FACSIMILE NUMBER FIRST SET FORTH ABOVE (WHICH EITHER PARTY MAY CHANGE AT
ANY TIME UPON FIVE DAYS WRITTEN NOTICE).
NOTICES MAY BE SERVED BY CERTIFIED OR
REGISTERED MAIL, POSTAGE PAID, WITH RETURN RECEIPT REQUESTED, BY PRIVATE
COURIER, PREPAID, BY TELEX, FACSIMILE, OR OTHER TELECOMMUNICATION DEVICE CAPABLE
OF TRANSMITTING OR CREATING A WRITTEN RECORD, OR PERSONALLY.
MAILED NOTICES
SHALL BE DEEMED DELIVERED FIVE DAYS AFTER MAILING, PROPERLY ADDRESSED.
12
12.
GOVERNING LAW; VENUE.
THE PARTIES INTEND THAT THIS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA APPLICABLE TO CONTRACTS MADE AND WHOLLY PERFORMED WITHIN CALIFORNIA
BY PERSONS DOMICILED IN CALIFORNIA AND EXCLUSIVE OF CHOICE OF LAW RULES.
THE
PARTIES HEREBY CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION OF AND VENUE IN
CALIFORNIA AND FEDERAL COURTS LOCATED IN THE SAN DIEGO COUNTY, CALIFORNIA FOR
ANY LITIGATION ARISING OUT OF THIS AGREEMENT.
13.
INTEGRATION; AMENDMENT.
THIS AGREEMENT AND THE OTHER DOCUMENTS
CONTEMPLATED HEREBY CONSTITUTE THE ENTIRE AGREEMENT OF THE PARTIES RELATING TO
THE SUBJECT MATTER HEREOF.
THERE ARE NO PROMISES, TERMS, CONDITIONS,
OBLIGATIONS, OR WARRANTIES OTHER THAN THOSE CONTAINED IN THIS AGREEMENT OR
AMENDMENTS HERETO..
NO MODIFICATION OF THIS AGREEMENT (BY PURCHASE ORDER,
INVOICE OR OTHERWISE (EXCEPT AS PROVIDED IN SECTION 2(C)) SHALL BE OF ANY FORCE
OR EFFECT UNLESS SUCH MODIFICATION IS IN WRITING, REFERS SPECIFICALLY TO THIS
AGREEMENT, CONTAINS LANGUAGE INDICATING IT IS A MODIFICATION OF THIS AGREEMENT
AND IS SIGNED BY BOTH PARTIES.
14.
WAIVER.
NO PROVISION OF THIS AGREEMENT SHALL BE DEEMED TO HAVE
BEEN WAIVED UNLESS SUCH WAIVER IS IN WRITING SIGNED BY THE WAIVING PARTY.
NO
FAILURE BY ANY PARTY TO INSIST UPON THE STRICT PERFORMANCE OF ANY PROVISION OF
THIS AGREEMENT, OR TO EXERCISE ANY RIGHT OR REMEDY CONSEQUENT UPON A BREACH
THEREOF, SHALL CONSTITUTE A WAIVER OF ANY SUCH BREACH OF SUCH PROVISION OR OF
ANY OTHER PROVISION.
NO WAIVER OF ANY PROVISION OF THIS AGREEMENT SHALL BE
DEEMED A WAIVER OF ANY OTHER PROVISION OF THIS AGREEMENT OR A WAIVER OF SUCH
PROVISION WITH RESPECT TO ANY SUBSEQUENT BREACH, UNLESS EXPRESSLY PROVIDED IN
WRITING.
15.
ATTORNEY'S FEES.
IF ANY SUIT OR ACTION ARISING OUT OF OR RELATED
TO THIS AGREEMENT IS BROUGHT BY ANY PARTY, THE PREVAILING PARTY SHALL BE
ENTITLED TO RECOVER THE COSTS AND FEES (INCLUDING REASONABLE ATTORNEYS' FEES)
INCURRED BY SUCH PARTY IN SUCH SUIT OR ACTION, INCLUDING WITHOUT LIMITATION ANY
POST TRIAL OR APPELLATE PROCEEDING.
16.
EXHIBITS.
EACH EXHIBIT TO THIS AGREEMENT SHALL BE CONSIDERED A
PART HEREOF AS IF SET FORTH HEREIN IN FULL.
17.
CONTINUING AGREEMENT; BINDING