ON ANY OTHER BASIS, FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL, DAMAGES OF THE OTHER, OR FOR MULTIPLE OR PUNITIVE DAMAGES, WHETHER OR
NOT FORESEEABLE AND WHETHER OR NOT THE OTHER IS ADVISED OF THE POSSIBILITY OF
DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING FROM OR
The symbol [***] is used to indicate that a portion of the exhibit has been
omitted and filed separately with the commission.
Confidential treatment has
been requested with respect to the omitted portion.
11
RELATED TO LOSS OF USE, LOSS OF DATA, FAILURE OR INTERRUPTION IN THE OPERATION
OF ANY EQUIPMENT, DELAY IN REPAIR OR REPLACEMENT, OR LOSS OF OPPORTUNITY OR
GOODWILL.
THE PARTIES AGREE THAT THE DAMAGES INDEMNIFIED UNDER SECTION 11
SHALL NOT BE DEEMED INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, OR
MULTIPLE OR PUNITIVE DAMAGES.
12.
GENERAL PROVISIONS
12.1.
FORCE MAJEURE.
EXCEPT AS MAY BE HEREIN OTHERWISE SPECIFICALLY
PROVIDED, NEITHER 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 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.
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 ONTARIO, CANADA, WITHOUT
REGARD TO ITS CONFLICTS OF LAW PRINCIPLES.
THE PARTIES HEREBY SPECIFICALLY
EXCLUDE THE APPLICATION OF THE CONVENTION FOR THE INTERNATIONAL SALE 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