will relieve any party
from liability for any breach of this Agreement and the non-breaching party
shall have the right to pursue all available legal and equitable remedies.
ARTICLE XI
MISCELLANEOUS
Section 11.1
Amendment.
This Agreement may not be amended, altered or modified except by written
instrument executed by Buyer and Seller.
Section 11.2
Entire Agreement.
(a)
This Agreement, the Confidentiality Agreement and the other Seller
Transaction Documents and Buyer Transaction Documents constitute the entire
understanding of the parties hereto with respect to the transactions
contemplated hereby, and supersede all prior agreements and understandings,
written and oral, among the parties with respect to the subject matter hereof.
(b)
THE REPRESENTATIONS AND WARRANTIES MADE BY SELLER IN THIS AGREEMENT ARE
IN LIEU OF AND ARE EXCLUSIVE OF ALL OTHER REPRESENTATIONS AND WARRANTIES,
INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR
PURPOSE AND ANY OTHER EXPRESS OR IMPLIED WARRANTIES OF SELLER. SELLER HEREBY
DISCLAIMS, AND NEITHER SELLER, ITS AFFILIATES, NOR ANY OF ITS OR THEIR
RESPECTIVE DIRECTORS, TRUSTEES, OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES
SHALL HAVE ANY RESPONSIBILITY OR LIABILITY PURSUANT TO, ANY SUCH OTHER EXPRESS
OR IMPLIED REPRESENTATIONS OR WARRANTIES, NOTWITHSTANDING THE DELIVERY OR
DISCLOSURE BY SELLER OR ANY OTHER PERSON TO BUYER OR ANY OF ITS DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS OR REPRESENTATIVES, OF ANY DOCUMENTATION OR OTHER
INFORMATION IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
THEREBY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER HEREBY
ACKNOWLEDGES THAT IT HAS INVESTIGATED AND REVIEWED THE DESIGN, ARCHITECTURE,
PROTOCOLS AND SOFTWARE RELATING TO THE NETWORK FACILITIES AND THEIR OPERATION,
AND SELLER MAKES NO EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WITH RESPECT
THERETO.
96
Section 11.3
Interpretation. When reference is made in this Agreement to any
Article, Section, Exhibit or Schedule, such reference is to an Article, Section,
Exhibit or Schedule of this Agreement unless otherwise indicated. The table of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." The phrases "the date of this Agreement," "the date hereof" and
terms of similar import, unless the context otherwise requires, shall be deemed
to refer to the date set forth in the first paragraph of this Agreement. The
words "hereof", "herein", "hereby" and other words of similar import refer to
this Agreement as a whole unless otherwise indicated. The phrase "to the
knowledge of Seller" or any similar phrase shall be deemed to refer to the
actual knowledge of any of the executive officers of Seller, the President or
General Counsel of the Company or the Subsidiaries or the CFO of CSS, after due
inquiry with regard to the subject matter to which the phrase "to the knowledge
of Seller" or any similar phrase applies. Whenever the singular is used herein,
the same shall include the plural, and