in the
parties' reaching a mutually satisfactory resolution within thirty (30) days
after Franklin issued a written notice invoking this escalation procedure,
Franklin may pursue obtaining access to relevant versions of MobiPocket Reader
source code in accordance with the release conditions and other terms of the
Source Code Escrow Agreement.
2.4.4 Franklin agrees that notwithstanding anything to the contrary in the
Going-Forward Technology Agreements or any other agreement between Franklin and
MobiPocket, this Section 2.4 together with Section 1.1 and Exhibit A of the
Japan Reader Development and License Agreement, Section 8(d) of the Development
and License Agreement (as amended), and the Source Code Escrow Agreement set
forth the sole and exclusive obligations of MobiPocket and Amazon with respect
to any future software development, customization or update activities
(collectively, "Future Development Projects") in connection with any
Going-Forward Technology Agreement or any other agreement between Franklin and
MobiPocket.
2.4.5 SOLE AND EXCLUSIVE REMEDY; WAIVER OF OTHER REMEDIES. FRANKLIN FURTHER
AGREES THAT, SUBJECT TO MOBIPOCKET'S DEPOSIT OF ALL SOURCE CODE AS EXPRESSLY
REFERENCED IN SECTION 2.3.1 HEREIN OR SECTION 1.6 OF THE SOURCE CODE ESCROW
AGREEMENT OR ANY SUCCESSOR THERETO, THE TERMS OF SECTION 2.4.3 AND THE RELEASE
TO FRANKLIN OF APPROPRIATE SOURCE CODE IN ACCORDANCE WITH THE SOURCE CODE ESCROW
AGREEMENT SHALL CONSTITUTE ITS SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE BY
MOBIPOCKET OR AMAZON OR ANY AMAZON AFFILIATE TO PROVIDE ANY REQUESTED SOFTWARE
CUSTOMIZATION, ERROR CORRECTION, OR OTHER FUTURE SOFTWARE DEVELOPMENT. FRANKLIN
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHTS AND REMEDIES THAT IT MAY HAVE AT
LAW OR OTHERWISE TO OBTAIN ANY REMEDY OR RELIEF OTHER THAN AS EXPRESSLY SET
FORTH IN THIS AGREEMENT OR THE JAPAN READER DEVELOPMENT AND LICENSE AGREEMENT OR
THE DEVELOPMENT AND LICENSE AGREEMENT WITH RESPECT TO ANY FAILURE BY MOBIPOCKET
OR AMAZON OR ANY AMAZON AFFILIATE TO PERFORM ANY OBLIGATION TO FRANKLIN
(INCLUDING WITHOUT LIMITATION ANY OBLIGATION TO TIMELY COMPLETE AND DELIVER ANY
SOFTWARE UPDATE OR ERROR CORRECTION, ANY MODIFIED OR NEW SOFTWARE, OR ANY
WARRANTY OR REPAIR OBLIGATION REGARDING ANY OF THE FOREGOING), WHETHER OR NOT
SUCH FAILURE CONSTITUTES A MATERIAL BREACH OF ANY AGREEMENT OF MOBIPOCKET,
AMAZON OR ANY AMAZON AFFILIATE.
2.4.6 AMAZON RESPONSIBILITY FOR MOBIPOCKET PERFORMANCE; TERMINATION OF CERTAIN
AGREEMENTS. For purposes of clarification, Amazon agrees that it shall be
responsible for MobiPocket's compliance with and performance of all
responsibilities under this Agreement, the Going-Forward Technology Agreements,
and the Source Code Escrow Agreement, and that Amazon will be liable for any
failure of MobiPocket to so comply or perform, and Amazon further agrees that in
the case in which MobiPocket is merged into or otherwise consolidated with
Amazon or in the case in which MobiPocket takes action to assign or transfer any
Going-Forward Technology Agreements or the Source Code Escrow Agreement to
Amazon that Amazon hereby accepts the obligations of MobiPocket thereunder or
accepts the delegation of all duties of MobiPocket thereunder. Without limiting
the foregoing, the parties hereby acknowledge and agree that, other than the
Source Code Escrow Agreement, and