Subscription Agreement

Subscription Agreement

THIS AGREEMENT (this “Agreement”) GOVERNS YOUR ACQUISITION AND USE OF OUR SOFTWARE. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, PARTNERSHIP OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SOFTWARE. This Agreement is effective between Vested Software Inc. (“VSI”) and Subscriber as of the date Subscriber accepts this Agreement. 

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Subscriber and VSI (collectively, the “Parties” and each, a “Party”) hereby agree as follows: 

1. DEFINITIONS.  The definitions for some of the defined terms used in this Agreement are set forth below.  The definitions for other defined terms are set forth elsewhere in this Agreement.

1.1 Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity.  The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise. 

1.2 Authorized User” means an employee of Subscriber or an individual consultant, vendor, or contractor engaged by and acting under the direction and control of Subscriber that Subscriber permits to access and use the Software, and to whom Subscriber has supplied a user identification and password (for Software utilizing authentication).  VSI acknowledges that Subscriber will not need to disclose the specific identity of such Authorized Users to VSI, but will be required to disclose the total number of Authorized Users.

1.3 Data” means any data that is accessible to Subscriber via the Software, including all Updates thereto.

1.4 Documentation” means any written specifications, user documentation, training materials, validation test plans, and other documents relating to the Software that VSI provides to Subscriber.

1.5 Order Form” means an ordering document or online order specifying the Software to be provided hereunder that is entered into between Subscriber and VSI or any of its Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

1.6 Software” means the Hull e-State Planner™ will planning software platform and application program interface, including any tools, registration pages and documentation related thereto through which Subscriber may access Data.

1.7 Updates” means updates to the Data that are periodically made available to Subscriber during the Term through the Software.

1.8 Website” means any website or other access point through which VSI provides access to the Software.

2. SUBSCRIPTION; RESTRICTIONS ON USE.

2.1 Subscription to Software, Documentation, and Data.  Subject to the terms and conditions of this Agreement, VSI hereby grants to Subscriber during the Term access to the Software through the Website and to authorize Authorized Users to use the Documentation (all of the foregoing rights, collectively, the “Subscription”). Subscriber shall be responsible to VSI for any and all acts or omissions of the Authorized Users, including ensuring that all such Authorized Users comply with the applicable provisions of this Agreement, including the license scope set forth in this Section 2.1, and the Restrictions on Use set forth immediately below in Section 2.2.  Subscriber will be primarily liable to VSI for any and all violations thereof by such Authorized Users.  Unless otherwise provided in the applicable Order Form, (a) access to Software is purchased as a subscription, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.

2.2 Restrictions on Use.  Except as expressly provided in this Agreement, Subscriber will not (and will use best efforts to restrict any Authorized User or other third party to) make any use or disclosure of the Software, the Website, the Data, the Updates, or the Documentation that is not expressly permitted under this Agreement.  Without limiting the foregoing and unless otherwise agreed in writing by VSI and Subscriber, Subscriber will not and will use commercially reasonable efforts to restrict any third party from: (i) reverse engineering, decompiling, disassembling, or otherwise attempting to discern the source code or interface protocols of the Software or the Website; (ii) modifying or adapting the Software, the Website, the Data or the Documentation; (iii) making any copies of the Software, the Website, the Data, the Updates, or the Documentation; (iv) reselling, distributing, or sublicensing the Software, the Website, the Data, the Updates, or the Documentation; or otherwise allowing any third party to use or access the Software, the Website, the Data, the Updates, or the Documentation (except as provided in Section 2.1); (v) removing or modifying any proprietary markings or restrictive legends placed on the Software, the Website, the Data, the Updates, or the Documentation; (vi) using the Software, the Website, the Data, the Updates, or the Documentation in violation of any applicable law, rule, or regulation or for any purpose not specifically permitted in this Agreement; (vii) introducing into the Software, the Website, the Data, or the Updates any Software, virus, worm, “back door,” Trojan Horse, or similar harmful code; or (viii) providing access to the Software or the Data to any third party.

3. SUPPORT SERVICES.  VSI will provide Subscriber problem resolution and technical support in connection with the Software, the Website, the Data, and the Updates during the Term (the “Support Services”). 

4. FEES.

4.1 Subscription Fees.  As consideration for the Subscription and the Support Services, Subscriber will pay an annual subscription fee as set by VSI from time to time per Authorized User (collectively, the “Fees”). Fees are based on Authorized User subscriptions and not actual usage.  Payment obligations are non-cancellable and Fees paid are non-refundable, subject to Section 4.3.  Quantities of subscriptions cannot be decreased during the relevant subscription term.

4.2 Payment Terms. Fees shall be paid annually in advance, in accordance with any billing frequency stated in the applicable Order Form.  All payments are due in Canadian dollars.  Subscriber will provide VSI with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to VSI. If Subscriber provides credit card information to VSI, Subscriber authorizes VSI to charge such credit card for all purchased Software listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 5.1. If the Order Form specifies that payment will be by a method other than a credit card, VSI will invoice Subscriber in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due with your submission of an Order Form. Subscriber is responsible for providing complete and accurate billing and contact information to VSI and notifying VSI of any changes to such information. 

4.3 30-Day Refund.  If,  within 30 days of paying for the Software, Subscriber notifies VSI in writing that the Software is not suitable for which it was subscribed for, VSI will email Subscriber a cancellation form, which must be completed, signed and returned to VSI by Subscriber (together with appropriate identification documents) by registered mail within 7 daysof the date of issue of the cancellation form.  Within 30 days of receipt of a duly completed cancellation form and satisfactory identification evidence matching the registered user information held on VSI’s database, VSI will authorize a refund of the full amount paid.  The rights provided pursuant to this refund policy may only be exercised once per Authorized User or, if Subscriber is a company, partner or other legal entity, once per such entity.

4.4 Overdue Charges. If any invoiced amount is not received by VSI by the due date, then without limiting VSI’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) VSImay condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 4.2

4.5 Suspension of Service. If any amount owing by Subscriber under this or any other agreement for Subscription is 30 or more days overdue (or 10 or more days overdue in the case of amounts Subscriberhas authorized VSI to charge), VSI may, without limiting its other rights and remedies, accelerate Subscriber’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend the Subscription until such amounts are paid in full. 

4.6 Taxes.  The Fees do not include applicable transaction taxes. If VSI is required by law to pay any federal, province, municipal or value added tax, sales and use tax, goods and services tax, or similar applicable taxes based on this Agreement, VSI shall ensure that such taxes are invoiced to Subscriber in accordance with applicable rules so as to allow Subscriber to reclaim such value-added and/or similar tax from the appropriate government authority. Nothing in this Agreement, however, shall require Subscriber to pay any payroll, corporate, partnership, succession, transfer, income, excise, profits, or income tax of VSI.

5. TERM AND TERMINATION.

5.1 Term.  This Agreement commences on the date Subscriber first accept it and continues until all subscriptions hereunder have expired or have been terminated. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any renewal term may be increased above the applicable pricing in the prior term, upon VSI providingSubscriber notice of different pricing at least 60 days prior to the applicable renewal term.

5.2 Termination.  

(a) For Cause.  In the event of a breach of this Agreement by a Party, the other Party may terminate this Agreement by giving thirty (30) days prior, written notice to the breaching Party; provided, however, that this Agreement will not terminate if the breaching Party has cured the breach before the expiration of such thirty (30) day period.  In addition, VSI may terminate this Agreement upon written notice to Subscriber under the limited circumstances set forth in Section 9.3 below.

5.3 Effect of Termination or Expiration.  In the event of any termination or expiration of this Agreement: 

(a) Subscriber will pay VSI for all undisputed Fees payable hereunder through the effective date of termination or expiration;  

(b) all rights granted hereunder to Subscriber will immediately cease, and Subscriber will immediately cease all access of the Software, the Website, the Data, and the Documentation; 

(c) all Subscriber Data entered or stored on the Software will be deleted; and

(d) each Party will either return to the other Party (or provide the other Party with written certification of the destruction of) all documents, computer files, and other materials containing any Confidential Information (as defined below) of such other Party that are in the first Party’s possession or control; provided that this obligation does not extend to automatically generated computer backup or archival copies generated in the ordinary course of the receiving party’s information systems procedures, provided that the receiving party shall make no further use of such copies.

5.4 Survival.  The following provisions will survive any termination or expiration of this Agreement:  Section 5.3 (“Effect of Termination or Expiration”), Section 6 (“Intellectual Property”), Section 7 (“Confidentiality”), Section 8 (“Disclaimer; “Limitation of Liability”), Section 9(“Indemnification”), Section 10 (“Miscellaneous Provisions”) (except for Section 10.1), and this Section 5.4 (“Survival”).

6. INTELLECTUAL PROPERTY.  As between VSI and Subscriber, VSI shall own all right, title, and interest in and to the Software, the Website, the Data, the Updates and the Documentation, including all source code, object code, operating instructions, and interfaces developed for or relating to the Software, the Website, the Data, the Updates and the Documentation, together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, and derivative works thereto, including all copyrights and other intellectual property rights relating thereto (the “VSIIntellectual Property”).  Subscriber will have no rights with respect to the VSI Intellectual Property other than those expressly granted under this Agreement.  Unless otherwise agreed in writing by the Parties, Subscriber will have no right to develop (or to permit any third party to develop) any software tool or other application that interfaces with the Software.      

7. CONFIDENTIALITY AND PUBLICITY.

7.1 Definition of Confidential Information.  For the purposes of this Agreement, “Confidential Information” means:  (a) with respect to VSI, the Software, any and all source code relating thereto, the Data, the Updates and the Documentation, all pricing and Fees relating to the Software and related services, and any other non-public information or material regarding VSI’s legal or business affairs, financing, or customers, and (b) with respect to Subscriber and any non-public information or material regarding Subscriber’s legal or business affairs, products, services, financing, or customers.  Notwithstanding any of the foregoing, Confidential Information does not include information which:  (i) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (ii) is documented as being known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (iii) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party and is so documented; or (iv) is obtained by the Receiving Party without restrictions on use or disclosure from a third person who, to the Receiving Party’s knowledge, did not receive it, directly or indirectly, from the Disclosing Party.  

7.2 Use and Disclosure of Confidential Information.  The Receiving Party will, with respect to any Confidential Information of the Disclosing Party:  (i) use such Confidential Information only in connection with the Receiving Party’s performance of its obligations and exercise of its rights under this Agreement; (ii) subject to Section 7.4 below, restrict disclosure of such Confidential Information within the Receiving Party’s organization to only those employees and consultants of the Receiving Party who have a need to know such Confidential Information in connection with the Receiving Party’s performance of this Agreement and (iii) except as expressly contemplated under the preceding clause (ii), not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so.

7.3 Protection of Confidential Information.  The Receiving Party will protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care). 

7.4 Compliance by Personnel.  The Receiving Party will, prior to providing any employee, consultant, or vendor access to any Confidential Information of the Disclosing Party, inform such employee or consultant, or vendor of the confidential nature of such Confidential Information and require such employee, consultant, or vendor to comply with the Receiving Party’s obligations hereunder with respect to such Confidential Information.  The Receiving Party will be responsible to the Disclosing Party for any violation of this Section 7 by any such employee, consultant, or vendor.

7.5 Required Disclosures. In the event the Receiving Party becomes or may become legally compelled to disclose any Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process, or otherwise), the Receiving Party shall provide to the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section.  In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use its best efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.   

8. DISCLAIMER; LIMITATION OF LIABILITY.

8.1 Disclaimer.  THE SOFTWARE, ITS COMPONENTS, THE WEBSITE, THE DATA, ANY UPDATES, THE DOCUMENTATION, THE SUPPORT SERVICES, AND OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND VSI MAKES NO WARRANTY WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.  TO THE EXTENT THAT VSI MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE SOFTWARE, THE WEBSITE, THE DATA, ANY UPDATES, THE DOCUMENTATION, THE SUPPORT SERVICES AND OTHER MATERIALS PROVIDED HEREUNDER ARE PROVIDED FOR GENERAL INFORMATION PURPOSES ONLY AND DO NOT CONSTITUTE LEGAL OR OTHER PROFESSIONAL ADVICE OR AN OPINION OF ANY KIND.  VSI does not warrant or guarantee the quality, accuracy or completeness of any information contained in the Software, the Website, the Data, any Updates, the Documentation, the Support Services and other materials provided hereunder. 

8.2 Liability Exclusion.  NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THE SOFTWARE, THE WEBSITE, THE DATA, THE UPDATES, THE SUPPORT SERVICES, THE DOCUMENTATION, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.  

8.3 Limitation of Damages.  EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE SOFTWARE, THE WEBSITE, THE DATA, THE UPDATES, THE SUPPORT SERVICES, THE DOCUMENTATION, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID TO VSI BY SUBSCRIBER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES, PLUS THE TOTAL AMOUNT OF ANY FEES PAYABLE UNDER THIS AGREEMENT TO VSI BY SUBSCRIBER BUT UNPAID. 

8.4 Exceptions.  THE FOREGOING EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 8.1 AND SECTION 8.2 SHALL NOT APPLY TO (I) THE FAILURE OF SUBSCRIBER TO MAKE PAYMENTS, (II) LIABILITY RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SUBSCRIBER, (III) USE OF THE SOFTWARE, THE WEBSITE, THE DATA, THE UPDATES AND/OR THE DOCUMENTATION OUTSIDE THE SCOPE OF THE APPLICABLE RIGHTS GRANTED PURSUANT TO THIS AGREEMENT, (IV) LIABILITY RESULTING FROM SUBSCRIBER’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, OR (V) SUBSCRIBER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.  

9. INDEMNIFICATION.

9.1 Indemnification by VSI.  Subject to Section 9.2, VSI will indemnify, defend, and hold harmless Subscriber and its officers, directors, employees, Authorized Users, and agents (each, a “Subscriber Indemnitee”) from and against any and all liabilities, settlement payments, awards, damages, losses, costs, and expense, including, but not limited to, reasonable legal fees (collectively, “Losses”) incurred by such Subscriber Indemnitees in connection with any third-party claim, action, or proceeding (each, a “Claim”) to the extent arising from, relating to, or alleging that the Software, Documentation, Website, or the Data infringes or misappropriates any patent, copyright, trade secret, or other intellectual property right of any third party.

9.2 Exceptions to VSI Indemnification Obligations.  VSI shall not be obligated to indemnify, defend, or hold harmless the Subscriber Indemnitees hereunder to the extent: (i) the Loss arises from or is based upon use by Subscriber, or any Authorized User of: (a) the Software, the Website, and/or the Data in a manner for which they were not authorized by this Agreement; or (b) any unauthorized enhancements, modifications, alterations, or implementations of the Software, the Website and/or the Data; or (ii) the Claim arises from use of the Software in combination with unauthorized modules, apparatus, hardware, software, or other services; or (iii) the Claim arises from Subscriber’s use of the Software and/or the Data that violates this Agreement or any applicable law, rule, or regulation of any governmental authority or self-regulatory agency or authority.

9.3 Infringement Claims.  In the event that VSI reasonably determines that the Software, the Website or the Data is likely to be the subject of an claim of infringement or misappropriation of third-party rights, VSI shall have the right (but not the obligation), at its own expense and option, to: (i) procure for Subscriber the right to continue to use the Software, the Website and/or the Data for the remainder of the then-current Term, (ii) replace the infringing components of the Software, the Website and/or the Data with other components with the same or similar functionality that are reasonably acceptable to Subscriber, or (iii) suitably modify the Software, the Website and/or the Data so that it is non-infringing and reasonably acceptable to Subscriber.  If none of the foregoing options are available to VSI on commercially reasonable terms, VSI (a) may terminate this Agreement without further liability to Subscriber, and (b) shall refund to Subscriber an amount equal to a pro rata portion of any Fees prepaid by Subscriber hereunder as of the effective date of the termination.  This Section 9.3, together with the indemnity provided under Section 9.1, states Subscriber’s sole and exclusive remedy, and VSI’s sole and exclusive liability, regarding infringement or misappropriation of any intellectual property rights of a third party.

9.4 Indemnification by Subscriber.  Subscriber will indemnify, defend, and hold harmless VSIand its officers, directors, shareholders employees, and agents (each, a “VSI Indemnitee”) from and against any and all Losses incurred by such VSI Indemnitees in connection with any Claim to the extent arising from, or resulting from Subscriber, or any Authorized User’s violation of Section 2. Nothing herein shall restrict the right of VSI to participate in a claim, action or proceeding through its own counsel and at VSI’s own expense.  

10. MISCELLANEOUS PROVISIONS.

10.1 Usage of Analytics.  VSI may use analytics to monitor, identify, and collect trend and usage statistics, including, without limitation, how often different features of the Software or the Website are used, how often different buttons and menu items are clicked, execution time for different operations, error reports, download locations, versions, platform information, application and Software or Website usage, features usage, exception tracking, and operating system information (collectively, “Analytical Information”).  Such Analytical Information does not include any information that personally identifies the Subscriber or any Authorized User.  Subscriber hereby agrees that VSI may collect such Analytical Information and use it in anonymized, aggregated form to provide, operate, manage, maintain, and enhance the Software and the Website. 

10.2 Notices.  All notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Notices”), which shall clearly be identifiable as Notices, the day of sending by email. Billing-related notices to Subscriber will be addressed to the relevant billing contact designated by Subscriber. All other notices to Subscriber will be addressed to the relevant Software system administrator designated by Subscriber.

10.3 Relationship of the Parties.  Each Party is an independent contractor of the other Party.  Nothing herein will constitute a partnership between or joint venture by the Parties, or constitute either Party the agent of the other.

10.4 Assignment.  Subscriber may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of VSI.  Any assignment or other transfer in violation of this Section will be null and void.  Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.  

10.5 Force Majeure.  Except with respect to failure to pay any amount due under this Agreement, nonperformance of either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing Party.  

10.6 Choice of Law; Venue. This Agreement, and any disputes directly or indirectly arising from or relating to this Agreement, will be governed by and construed in accordance with the laws of the Province of Ontario, without regard to principles of conflicts of law. Each of the Parties irrevocably and unconditionally submits and attorns to the exclusive jurisdiction of the courts of the Province of Ontario to determine all issues, whether at law or in equity, arising from this Agreement.

10.7 Modification.  No modification of or amendment to this Agreement will be effective unless in writing signed by authorized representatives of both Parties.  

10.8 No Waiver.  The rights and remedies of the Parties to this Agreement are cumulative and not alternative.  No waiver of any rights is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the Party so charged.  Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.  

10.9 Severability.  If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties’ intent. 

10.10 Entire Agreement. This Agreement (including the Schedules attached hereto) contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements and commitments with respect thereto.  There are no other oral or written understandings, terms or conditions and neither Party has relied upon any representation, express or implied, not contained in this Agreement.

10.11 Counterparts.  This Agreement may be executed in counterparts (which may be exchanged by PDF or facsimile), each of which will be deemed an original, but all of which together will constitute the same Agreement.