INTO WITHOUT ITS PRIOR WRITTEN CONSENT, SUCH CONSENT NOT
TO BE UNREASONABLY WITHHELD.
12.2
LIMITATION.
SECTION 12.1 SETS FORTH THE ENTIRE LIABILITY OF
VISTULA, AND THE EXCLUSIVE REMEDY OF TELSTRA AND ITS AFFILIATES, WITH RESPECT TO
ANY CLAIM OF
PATENT, COPYRIGHT OR TRADE SECRET INFRINGEMENT BY THE PRODUCTS,
ANY PART THEREOF OR THE USE THEREOF, AND ARE IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, AND
13
INDEMNITIES WITH RESPECT TO PATENT, COPYRIGHT OR TRADE SECRET INFRINGEMENT BY
THE PRODUCTS, ANY PART THEREOF OR THE USE THEREOF.
12.3
INDEMNIFICATION.
TELSTRA SHALL INDEMNIFY AND HOLD HARMLESS VISTULA
FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, LOSSES, COSTS AND
EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES) OF ANY KIND WHATSOEVER SUFFERED
OR INCURRED BY VISTULA AS A RESULT OF A FAILURE BY TELSTRA TO COMPLY WITH
APPLICABLE LAW WITH RESPECT TO THE MARKETING OR DISTRIBUTION OF THE PRODUCTS.
13.
GENERAL PROVISIONS.
13.1
ENTIRE AGREEMENT.
THIS AGREEMENT, INCLUDING ALL EXHIBITS ATTACHED
HERETO, SETS FORTH THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL ORAL AND WRITTEN
AGREEMENTS AND UNDERSTANDINGS RELATING THERETO.
AS BETWEEN THE PARTIES, IN THE
EVENT OF ANY CONFLICT BETWEEN THE TERMS OF THIS AGREEMENT AND THE TERMS OF THE
ESCROW AGREEMENT OR ANY SUBLICENSE AGREEMENT OR END USER LICENSE AGREEMENT WITH
RESPECT TO THE PRODUCTS AND THE PROVISIONS OF THIS AGREEMENT, THE TERMS OF THIS
AGREEMENT SHALL PREVAIL.
13.2
MODIFICATION/WAIVER.
NO WAIVER, ALTERATION, MODIFICATION, OR
CANCELLATION OF ANY OF THE PROVISIONS OF THIS AGREEMENT SHALL BE BINDING UNLESS
MADE IN WRITING AND SIGNED BY EACH OF THE PARTIES HERETO.
EITHER PARTY'S
FAILURE AT ANY TIME OR TIMES TO REQUIRE PERFORMANCE OF ANY PROVISION HEREOF
SHALL IN NO MANNER AFFECT ITS RIGHT AT A LATER TIME TO ENFORCE SUCH PROVISION.
NO REMEDY REFERRED TO IN THIS AGREEMENT IS INTENDED TO BE EXCLUSIVE, BUT EACH
SHALL BE CUMULATIVE AND IN ADDITION TO ANY OTHER REMEDY REFERRED TO HEREIN OR
OTHERWISE AVAILABLE AT LAW, IN EQUITY OR OTHERWISE.
13.3
ASSIGNMENT.
THIS AGREEMENT SHALL BE BINDING UPON, AND INURE TO THE
BENEFIT OF, THE PARTIES HERETO AND THEIR RESPECTIVE LEGAL REPRESENTATIVES,
SUCCESSORS AND PERMITTED ASSIGNS.
NEITHER PARTY MAY ASSIGN ANY OF ITS RIGHTS OR
DELEGATE ANY OF ITS DUTIES HEREUNDER, IN WHOLE OR IN PART, TO ANY THIRD PARTY,
WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER, SUCH CONSENT NOT TO BE
UNREASONABLY WITHHELD OR DELAYED; PROVIDED, HOWEVER, THAT EITHER PARTY MAY
ASSIGN ITS RIGHTS UNDER THIS AGREEMENT TO AN AFFILIATE PROVIDED THAT SUCH
AFFILIATE AGREES IN WRITING TO BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS
AGREEMENT.
13.4
RELATIONSHIP OF THE PARTIES.
THE RELATIONSHIP BETWEEN VISTULA AND
TELSTRA SHALL BE THAT OF INDEPENDENT CONTRACTORS.
NOTHING CONTAINED IN THIS
AGREEMENT SHALL BE CONSTRUED TO CREATE A PARTNERSHIP, JOINT VENTURE OR AGENCY
RELATIONSHIP BETWEEN THE PARTIES, AND, NOTWITHSTANDING ANYTHING ELSE HEREIN,
NEITHER PARTY SHALL HAVE THE RIGHT TO INCUR (AND WILL NOT ATTEMPT TO INCUR) ANY
OBLIGATION OR LIABILITY ON BEHALF OF THE