PARTY SHALL BE LIABLE TO THE OTHER FOR LOSS, INJURY, DELAY,
EXPENSES, DAMAGES, OR OTHER CASUALTY SUFFERED OR INCURRED BY THE OTHER PARTY DUE
TO A DELAY IN PERFORMING OR THE FAILURE TO PERFORM OBLIGATIONS HEREUNDER AS
RESULT OF TRADE DISPUTES, STRIKES, RIOTS, STORMS, EARTHQUAKES, FIRES, ACTS OF
GOD OR GOVERNMENT OR ANY CAUSE (WHETHER SIMILAR OR DISSIMILAR TO THE FOREGOING),
INCLUDING BUT NOT LIMITED TO ANY SHORTAGES OF POWER THAT IS NOT CAUSED BY THE
FAULT OR INACTION OF THE PARTY SEEKING TO BE EXCUSED FROM PERFORMANCE, BEYOND
THE REASONABLE CONTROL OF THE PARTY, PROVIDED, HOWEVER, THAT SUCH PARTY SHALL
HAVE GIVEN THE OTHER PARTY PROMPT NOTICE IN WRITING OF THE OCCURRENCE OF ANY
SUCH EVENTS OR CAUSES, AND OF THEIR DISCONTINUANCE, AND
The symbol [***] is used to indicate that a portion of the exhibit has been
omitted and filed seperately with the commission.
Confidential treatment has
been requested with respect to the omitted portion.
12
diligently seeks to perform at the earliest reasonable opportunity; and further
provided that this Section 12.1 shall not apply to any obligation to pay money
hereunder.
Any mandate from a governmental authority regarding pricing for any
Cepheid Sourced Products shall be considered a force majeure event. If requested
by either Party, the Parties will discuss what, if any, modification of the
terms of this Agreement may be required in order to arrive at an equitable
solution should performance be materially delayed or prevented by events of
force majeure as set forth in this Section 12.1, but neither Party shall have an
obligation to amend this Agreement.
12.2.
PUBLICITY.
NEITHER PARTY NOR ANY OF ITS AFFILIATES WILL ORIGINATE
ANY NEWS OR ANY OTHER PUBLIC DISCLOSURE RELATING TO THIS AGREEMENT WITHOUT THE
PRIOR WRITTEN APPROVAL OF THE OTHER PARTY.
A PARTY MAY ISSUE A PRESS RELEASE AS
SOON AS FEASIBLE AFTER THE EFFECTIVE DATE, WHEREIN THE TEXT OF SUCH PRESS
RELEASE SHALL BE AGREED TO BY THE OTHER PARTY.
12.3.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUCTED,
PERFORMED, AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO,
CANADA, WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES.
THE PARTIES HEREBY
SPECIFICALLY EXCLUDE THE APPLICATION OF THE CONVENTION FOR THE INTERNATIONAL
SALES OF GOODS.
12.4.
SEVERABILITY. IF A COURT OR AN ARBITRATOR OF COMPETENT JURISDICTION
HOLDS ANY PROVISION OF THIS AGREEMENT TO BE ILLEGAL, UNENFORCEABLE, OR INVALID,
IN WHOLE OR IN PART FOR ANY REASON, THAT PROVISION WILL BE DEEMED SEVERED FROM
THE REST OF THE AGREEMENT, AND THE VALIDITY AND ENFORCEABILITY OF THE REMAINING
PROVISIONS, OR PORTIONS THEREOF, WILL NOT BE AFFECTED.
12.5.
ENTIRE AGREEMENT. THIS AGREEMENT AND ANY EXHIBITS AND SCHEDULES
REFERRED TO IN THIS AGREEMENT CONSTITUTE THE FINAL, COMPLETE, AND EXCLUSIVE
STATEMENT OF THE TERMS OF THE AGREEMENT BETWEEN THE PARTIES PERTAINING TO THE
SUBJECT MATTER OF THIS AGREEMENT AND SUPERSEDE ALL PRIOR AND CONTEMPORANEOUS
UNDERSTANDINGS OR AGREEMENTS OF THE PARTIES AS TO SUCH SUBJECT MATTER,
INCLUDING, BUT NOT LIMTED TO,
THE LETTER AGREEMENT DATED FEBRUARY 21,