WORDS
IMPORTING THE USE OF ANY GENDER SHALL INCLUDE ALL GENDERS.
9.13.
SEVERABILITY. IN THE EVENT THAT ANY PROVISION OF THIS AGREEMENT IS
DECLARED OR HELD BY ANY COURT OF COMPETENT JURISDICTION TO BE INVALID OR
UNENFORCEABLE, SUCH PROVISION SHALL BE SEVERABLE FROM, AND SUCH INVALIDITY OR
UNENFORCEABILITY SHALL NOT BE CONSTRUED TO HAVE ANY EFFECT ON, THE REMAINING
PROVISIONS OF THIS AGREEMENT, UNLESS SUCH INVALID OR UNENFORCEABLE PROVISION
GOES TO THE ESSENCE OF THIS AGREEMENT, IN WHICH CASE THE ENTIRE AGREEMENT MAY BE
DECLARED INVALID AND NOT BINDING UPON ANY OF THE PARTIES.
30
9.14.
PARTIES IN INTEREST. NOTHING IMPLIED IN THIS AGREEMENT IS INTENDED
OR SHALL BE CONSTRUED TO CONFER ANY RIGHTS OR REMEDIES UNDER OR BY REASON OF
THIS AGREEMENT UPON ANY PERSON OTHER THAN THE PURCHASER AND THE SELLER AND THEIR
RESPECTIVE REPRESENTATIVES, SUCCESSORS AND PERMITTED ASSIGNS. NOTHING IN THIS
AGREEMENT IS INTENDED TO RELIEVE OR DISCHARGE THE LIABILITIES OF ANY THIRD
PERSON TO THE PURCHASER OR THE SELLER.
9.15.
WAIVER. THE TERMS, CONDITIONS, WARRANTIES, REPRESENTATIONS AND
INDEMNITIES CONTAINED IN THIS AGREEMENT, INCLUDING THE DOCUMENTS, INSTRUMENTS
AND AGREEMENTS EXECUTED AND DELIVERED BY THE PARTIES PURSUANT HERETO, MAY BE
WAIVED ONLY BY A WRITTEN INSTRUMENT EXECUTED BY THE PARTY WAIVING COMPLIANCE.
ANY SUCH WAIVER SHALL ONLY BE EFFECTIVE IN THE SPECIFIC INSTANCE AND FOR THE
SPECIFIC PURPOSE FOR WHICH IT WAS GIVEN AND SHALL NOT BE DEEMED A WAIVER OF ANY
OTHER PROVISION HEREOF OR OF THE SAME BREACH OR DEFAULT UPON ANY RECURRENCE
THEREOF. NO FAILURE ON THE PART OF A PARTY HERETO TO EXERCISE AND NO DELAY IN
EXERCISING ANY RIGHT HEREUNDER SHALL OPERATE AS A WAIVER THEREOF NOR SHALL ANY
SINGLE OR PARTIAL EXERCISE OF ANY RIGHT HEREUNDER PRECLUDE ANY OTHER OR FURTHER
EXERCISE THEREOF OR THE EXERCISE OF ANY OTHER RIGHT.
9.16.
CONSTRUCTION. THE PARTIES HAVE PARTICIPATED JOINTLY IN THE
NEGOTIATION AND DRAFTING OF THIS AGREEMENT. IN THE EVENT AN AMBIGUITY OR
QUESTION OF INTENT OR INTERPRETATION ARISES, THIS AGREEMENT SHALL BE CONSTRUED
AS IF DRAFTED JOINTLY BY THE PARTIES AND NO PRESUMPTION OR BURDEN OF PROOF SHALL
ARISE FAVORING OR DISFAVORING ANY PARTY BY VIRTUE OF THE AUTHORSHIP OF ANY OF
THE PROVISIONS OF THIS AGREEMENT. THE WORDS "INCLUDING," "INCLUDE" OR "INCLUDES"
SHALL MEAN INCLUDING WITHOUT LIMITATION. THE PARTIES INTEND THAT EACH
REPRESENTATION, WARRANTY AND COVENANT CONTAINED HEREIN SHALL HAVE INDEPENDENT
SIGNIFICANCE. IF ANY PARTY HAS BREACHED ANY REPRESENTATION, WARRANTY OR COVENANT
CONTAINED HEREIN IN ANY RESPECT, THE FACT THAT THERE EXISTS ANOTHER
REPRESENTATION, WARRANTY OR COVENANT RELATING TO THE SAME SUBJECT MATTER
(REGARDLESS OF THE RELATIVE LEVELS OF SPECIFICITY) WHICH THE PARTY HAS NOT
BREACHED SHALL NOT DETRACT FROM OR MITIGATE THE FACT THAT THE PARTY IS IN BREACH
OF THE FIRST REPRESENTATION, WARRANTY OR COVENANT.
31
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by duly authorized representatives as of the day, month and year first above
written.
SELLER:
PURCHASER:
/s/
EDWARD D. RILEY
SYMMETRY MEDICAL USA INC.
Edward D. Riley
/s/
RUSSELL