RedCare Support Services General Terms and Conditions

SECTION 1 – DEFINITIONS

“Agreement” shall mean this document, including all the attached Schedules and any amendments.

“Confidential Information” shall mean any business, marketing, sales, financial (including pricing) or technical information, including, without limitation, any information relating to present or future business affairs, operations, methods, techniques, operations, financial condition, reports, research, product plans, products, developments, processes, models, designs, drawings, formulae, markets, software (including source and object code), algorithms, business plans or agreements with third parties and all other information of any kind which may reasonably be deemed confidential or proprietary, disclosed by one party (the “Disclosing Party”) to the other (the “Receiving Party”), whether such information is in written, oral, graphic or machine-readable form and which is designated or identified as “confidential”, “proprietary” or in some other manner prior to the disclosure, to indicate its confidential nature. Oral disclosures will be confirmed in written format 30 days following the disclosure. Notwithstanding the foregoing, “Confidential Information” shall not include information which:

  1. has been or becomes published or is now or is in the future in the public domain through no action of the Receiving Party;

  2. prior to disclosure hereunder, is within the legitimate possession of the Receiving Party as evidenced by competent written proof;

  3. subsequent to disclosure hereunder, is lawfully received from a third-party having rights therein without restriction of the third party’s rights to disseminate the information and without notice of any restriction against its further disclosure; or

  4. is independently developed or acquired by the Receiving Party through persons who have not had, either directly or indirectly, access to or knowledge of such Confidential Information.

 

“Corrective Maintenance” shall mean:

  1. making adjustments (Upgrades and configuration changes) to Redline Products; and

  2. replacing any parts or components of the Redline Products, required to restore the Redline Products to operate in accordance with Redline specifications.

 

“Covered Equipment” means the Redline Products listed in Schedule B to this Agreement.

“Disclosing Party” means the Party disclosing Confidential Information.

“Documentation” shall mean user manuals, training materials, product descriptions and specifications, technical manuals and supporting materials and other printed information relating to the Redline Products, in effect and generally available from Redline as of the date the Redline Product is shipped to Customer.

“Effective Date” shall mean the date of Customer’s signed acceptance of this Agreement and the counter signature by an officer of Redline. The agreement becomes active and service will be rendered once the payment has been received from Customer by Redline.

“End-User(s)” shall mean any party that uses Redline Products for its own use and not for redistribution.

“Excluded Causes” shall mean:

  1. Defects or damage resulting from improper / non-standard use of the product;

  2. Defects or damage occurring from improper or unauthorized testing, operation, maintenance, service, repair, installation, alteration, modification or adjustment;

  3. Defects or damage resulting from environmental impact (e.g. lightning, power surge, water ingress, etc.);

  4. Illegal or unauthorized alteration of the products’ software / firmware; and / or

  5. Normal and customary wear and tear.

 

“Excluded Maintenance” shall mean any Support Services required to restore any defective or damaged Redline Products to operate in accordance with Redline specifications where the defect or damage results from or is caused by any of the Excluded Causes.

“Hardware” shall mean equipment included as part of the Redline Products.

“Intellectual Property Rights” shall mean all forms of intellectual property rights and protections that may be obtained for, or may pertain to, the Redline Products, Confidential Information, Documentation and Marks and may include without limitation:

  1. All right, title and interest in and to all Letters Patent and all filed, pending or potential applications for Letters Patent, including any re-issue, re-examination, division, continuation or continuation in part applications throughout the world now or hereafter filed;

  2. All right, title and interest in and to all trade secrets, and all trade secret rights and equivalent rights arising under common law, provincial law, Federal law and laws of foreign countries;

  3. All right, title and interest in and to all mask works, copyrights other literary property or authors rights, whether or not protected by copyright or as a mask work, under common law, provincial law, Federal law and laws of foreign countries; and

  4. All right, title and interest in and to all proprietary indicia, trademarks, trade names, symbols, logos and / or brand names under common law, provincial law, Federal law and laws of foreign countries.

 

“List Price” shall mean the price for Redline Products as set forth in Redline’s then-current published price list or manufacturer’s suggested retail price (“MSRP”).

“Marks” shall mean all proprietary indicia, trademarks, trade names, symbols, logos and / or brand names Redline may adopt from time to time to identify Redline, the Redline Products or any related parties or materials.

“Material Defect(s)” shall mean any reported malfunction, error or other defect in a Redline Product that:

  1. can be reproduced by Redline; and

  2. constitutes a substantial non-conformity with the Specifications for such Redline Product.

 

“Parties” or “Party” shall mean Redline and / or Customer.

“Preventive Maintenance” shall mean:

  1. Testing that the Redline Products are functional; and

  2. Making any adjustments as may be required to ensure the Redline Products remain operating in accordance with Redline specifications.

 

“Purchase Price” shall mean the amount to be paid by Customer for the Redline Products.

“Receiving Party” means the Party receiving Confidential Information.

“Redline Product(s)” shall mean the products, including Hardware, Software, Documentation and Support Services, or any part thereof, not included in or pertaining to Redline’s legacy products listed as “manufacturing discontinued” or “end of life” as documented on Redline’s website, authorized by Redline for purchase by Customer based on this Agreement and its schedules or Amendments.

“Software” shall mean each software program in machine readable object code form included as part of the Redline Products.

“Specifications” shall mean the published specifications applicable to the Redline Products that are in effect as of the date the Redline Products are shipped to Customer. During the Term, when Redline substantially amends the Specifications, Redline shall inform Customer of the revised Specifications.

“Support Services” shall mean the Preventive and Corrective Maintenance defined above and further described in Schedule A to this Agreement.

“Term” shall mean the period beginning on the Effective Date and terminating on the date this Agreement is terminated under Article 9.

“Work” shall mean the activities, services, goods, equipment, matters and things required to be done, delivered or performed by Redline under the Agreement.

SECTION 2 – SUPPORT SERVICES

Redline will perform Support Services as described in Schedule A for the Redline Products listed in Schedule B to this Agreement.

Redline warrants to the Customer that the Support Services will be performed:

  1. by an appropriate number of suitably qualified and experienced personnel;

  2. using reasonable skill and care; and

  3. in accordance with all applicable laws and regulations in force from time to time.

 

SECTION 3 – CUSTOMER OBLIGATIONS

3.1. The Customer shall:

  1. Ensure that:

    1. The Covered Equipment, any associated software and equipment are installed and operated according to Redline specifications and recommendations;

    2. All upgrades or engineering changes to Covered Equipment, associated software and equipment specified or recommended by Redline have been procured by Customer and properly installed;

    3. A continuous, uninterrupted and suitable power supply and temperature, humidity and other environmental conditions recommended by Redline have been implemented and maintained;

    4. Suitable surge protection devices have been implemented to protect the Covered Equipment from electrical power surges;

    5. No other equipment or software having an adverse impact on the Covered Equipment have been introduced;

    6. No repair attempts or other changes have been made to Covered Equipment, other than by or with the express approval of Redline;

    7. The Covered Equipment has not been mishandled, neglected, abused, vandalized, dropped, jolted, transported to another location, damaged by fire, lightning or water (especially including damage caused by spilled beverages), or otherwise subjected to unusual electrical or physical stress beyond Redline’s specified operating capabilities;

    8. Customer removes or takes other precautions to protect all software, data and removable storage media prior to commencement of the Support Services, and

    9. Customer periodically makes and stores in a safe place archival copies of all valuable data and software residing on or affected by the operation or malfunction of Covered Equipment.

  2. At all reasonable times permit full and free access, either physically when on-site or electronically when remote, to the Redline Products listed in Schedule B to Redline and provide Redline with adequate and safe working space, and any other facilities that are reasonably required to enable Redline to perform the Support Services, including obtaining all necessary permits, authorizations, licenses, and consents for Redline to deliver the Support Services.

  3. Cooperate with Redline and provide Redline with any information that is reasonably requested in the delivery of Support Services and ensure that such information is accurate in all material respects. At a minimum, Customer will provide Redline with sufficient information to establish entitlement, severity and priority for identified problems.

  4. Use commercially reasonable efforts to isolate problems and reproduce any identified errors or malfunctions.

  5. Take any steps reasonably necessary to ensure the safety of Redline’s personnel when working on-site, encompassing reasonable access, working space and facilities that include heat, air conditioning, ventilation, electric current, electric outlets, and access to a working telephone.

  6. Identify to Redline on or before Agreement commencement, any requirement for the use of personal protective equipment (“PPE”) or other measures including, but not limited to, specific site safety training. Customer also agrees to provide such equipment and / or training as needed at no charge prior to the start of on-site Support Services.

 

3.2. The Customer agrees to act in a timely manner and to provide properly competent and qualified personnel with respect to its obligations under this Agreement and to any tasks to be undertaken by it, whether expressly set out in this Agreement or otherwise reasonably requested of it by Redline. Performance of the Support Services is provided on the assumption that the Customer and its personnel will fulfil their obligations and tasks on time and as stated.

3.3. If, as a result of any act or omission by the Customer or its personnel (howsoever caused) which is not directly and wholly caused by Redline (including the provision of any incorrect or inadequate information or data by the Customer), Redline is prevented or delayed from performing any of its obligations under this Agreement or the cost of such performance increases, then:

  1. the time for performance of Redline’s obligations will be extended for a reasonable period;

  2. the Customer will be responsible at its own cost for storing the Redline Products until the Redline Products are ready for performance of the Support Services; and

  3. the Customer shall pay Redline on demand:

    1. at Redline’s standard time and materials rates for any additional time spent and materials used by Redline with respect to any delays or extra work caused by such act or omission; and

    2. all other reasonable costs, loss or damage which Redline sustains as a direct result of such act or omission.

 

3.4. The Customer shall neither on its own account nor in partnership or association with any person, firm, company or organization, or otherwise and whether directly during, or for a period of six (6) months after expiry or termination of this Agreement, solicit or entice away or attempt to entice away or authorize the taking of such action by any other person, any of Redline’s personnel who have worked on performance of the Support Services provided under this Agreement at any time during the term of this Agreement.

SECTION 4 – CONFIDENTIALITY

4.1. Non-disclosure. The Confidential Information shall:

  1. be kept confidential by the Receiving Party and not disclosed to any third parties,

  2. not be used by the Receiving Party in any way detrimental to the Disclosing Party, and

  3. not be used other than in connection with the Support Services. The Receiving Party may disclose the Confidential Information to its affiliates and its affiliates’ directors, officers, employees, consultants and agents (collectively, “Representatives”) only if such Representatives need to know the Confidential Information in connection with the Support Services and are bound by confidentiality obligations similar to those contained herein.

 

The Receiving Party shall:

  1. inform each of its Representatives receiving Confidential Information of the confidential nature of the Confidential Information and of this Agreement,

  2. direct its Representatives to treat the Confidential Information confidentially and not to use it other than in connection with the Support Services, and

  3. be responsible for any improper use of the Confidential Information by the Receiving Party or its Representatives.

 

Without the prior written consent of the Disclosing Party, the Receiving Party will not, and will direct its Representatives not to, disclose to any person that the Confidential Information has been made available to it or that the Support Services are taking place.

4.2. Care and Return of Confidential Information. The Receiving Party shall provide at least the same care to avoid disclosure or unauthorized use of the Confidential Information as it generally provides to protect its own proprietary information, which shall, in all events, equal or exceed a standard and level of care generally recognized as being reasonable for the protection of highly confidential information. All Confidential Information shall be retained by the Receiving Party in a place with access limited only to the Receiving Party’s Representatives who reasonably need to know the Confidential Information in connection with the Discussions. Upon the request of the Disclosing Party, the Receiving Party shall destroy or return to the Disclosing Party, or in the case of electronic, magnetic or digital media, at the election of the Disclosing Party, erase or render unreadable, all materials furnished which contain Confidential Information of the Disclosing Party, including, without limitation, documents, drawings, models, prototypes, sketches, designs, lists, papers, magnetic media and other tangible media.

4.3. No Licenses. Neither the execution of this Agreement nor the furnishing of any information under this Agreement shall be construed as granting any party or any of its Representatives, either expressly or by implication, any license or right to use any Confidential Information for its own benefit or the benefit of any other person, firm or entity, and each party expressly agrees not to so use any such information. Nothing contained in this Agreement shall be construed as conferring any rights, by license or otherwise, to any invention, discovery, or improvement made, conceived or acquired prior to, during or after the date of this Agreement.

4.4. Remedies. Each party acknowledges that the Disclosing Party would be irreparably harmed by a breach hereof by the Receiving Party or its Representatives and that it is difficult to estimate damages resulting from such a breach and, consequently, the non-breaching party shall be entitled to seek injunctive or other equitable relief to prevent a breach or continued breach of this Agreement, and to secure the enforcement of this Agreement, without foregoing any legal relief to which the non-breaching party may be entitled to recover.

4.5. Term. The restrictions and obligations of this Agreement relative to the use or disclosure of Confidential Information shall survive the termination of this Agreement for a period of five (5) years.

4.6. Disclosure Under Court Order or Subpoena. Should applicable law or any rule or regulation of any governmental entity of competent jurisdiction require disclosure of Confidential Information of the Disclosing Party in the Receiving Party’s possession, custody or control, the Receiving Party shall use commercially reasonable efforts to:

  1. give at least ten (10) days prior written notice of such disclosure to the Disclosing Party;

  2. limit such disclosure to the extent practicable; and

  3. make such disclosure only to the extent so required.

 

SECTION 5 – PATENT AND COPYRIGHT INDEMNITY

5.1. Indemnification. Redline will defend, at its expense, any action brought against Customer to the extent that it is based on a claim that the use of the Support Services infringes any United States, Canadian and European Union (“EU”) patent or copyright, and Redline will indemnify Customer from any costs, damages and fees finally awarded against Customer in such action which are attributable to such claim, provided Customer notifies Redline promptly in writing of any claim, to permit Redline to solely defend, compromise or settle the claim and to provide all available information and assistance regarding such claim. Redline shall not be liable for any costs, damages, settlement or fees incurred by Customer on such action or claim unless authorized in writing by Redline.

5.2. Remedies. Should any Support Services become, or in Redline’s opinion be likely to become, the subject of a claim for infringement of a United States, Canadian or EU patent or copyright, Redline may

  1. procure for Customer, at no cost to Customer, the right to continue to use the Support Services,

  2. replace or modify the Support Services at no cost to Customer, to make such non-infringing, provided that the replacement or modified Support Services provide substantially similar functionality and performance; or

  3. if neither (a) or (b) are practical, terminate the right to use such Support Services and grant Customer credit for any pre-paid Support Services that have not been rendered at the time of the termination.

 

5.3. Limitation. Redline shall have no liability for any claim based upon:

  1. Defects or damage resulting from improper and / or non-standard use of the Redline Products;

  2. Defects or damage occurring from improper or unauthorized testing, operation, maintenance, service, repair, installation, alteration, modification or adjustment;

  3. Defects or damage resulting from environmental impact (e.g. lightning, power surge, water ingress, etc.);

  4. Illegal or unauthorized alteration of the products’ software / firmware; and / or

  5. Normal and customary wear and tear.

 

5.4. Entire Liability. This Article 5 states the entire liability of Redline with respect to infringement of any intellectual property rights by the Support Services and Redline shall have no additional liability with respect to any alleged or proven infringement.

5.5. Notification of Unauthorized Use. Customer shall promptly notify Redline in writing upon its discovery of any unauthorized use or infringement of the Redline Products, Documentation or Confidential Information, or Redline’s Intellectual Property Rights with respect thereto. Redline shall have the sole and exclusive right to bring an infringement action or proceeding against any infringing third party, and, in the event that Redline brings such an action or proceeding, Customer shall cooperate and provide full information and assistance to Redline and its counsel in connection with any such action or proceeding.

5.6. Indemnification by Customer. Except as provided in Articles 6 and 8, Customer will defend, at its expense, any action brought against Redline to the extent that it is based on a claim by a third party based on the actions or omissions of Customer and Customer will indemnify Redline from any costs, damages and fees incurred by Redline from such claim.

SECTION 6 – LIMITATION OF LIABILITY

Redline’s liability arising out of this Agreement shall be limited to the amount paid by Customer to Redline, for the Support Services. In no event shall Redline be liable to Customer or any other entity for any special, consequential, incidental, or indirect damages, including lost profits, lost data, or lost goodwill however caused. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.

SECTION 7 – INVOICING AND PAYMENT

Commencing on the Effective Date, the Customer shall pay to Redline the monthly recurring charges and any non-recurring charges incurred.

The monthly recurring charges will be invoiced in advance at the beginning of each month. If the Effective Date occurs on a date other than the first day of a calendar month, the first monthly recurring charges shall be reduced to an amount equal to the remaining days of the month in which the Effective Date falls (including the Effective Date) multiplied by a rate equal to one-thirtieth (1/30th) of the monthly recurring charges. Redline shall invoice any non-recurring charges on and from the Effective Date, but reserves the right to invoice earlier if the Customer cancels a service or Redline terminates or cancels a service for the Customer’s breach. Redline shall invoice the non-recurring charges on the basis set out in the corresponding purchase order (“PO”).

The monthly recurring charges for Support Services may be aggregated and invoiced on a periodic basis other than monthly. Apart from the monthly recurring charges, if the PO specifies that additional charges may be incurred due to the actual usage of Support Services by Customer (“Extra Charge”), Redline reserves the right to invoice the Customer an Extra Charge at the end of each calendar month following the relevant Effective Date.

The Customer shall pay each invoice issued pursuant to this Agreement within thirty (30) calendar days of the date of the invoice (“Due Date”).

In addition and without prejudice to any other remedies Redline may have, if the Customer fails to pay any amount when due, Redline may charge interest on the unpaid balance compounded daily from the Due Date until the date paid at 1½% per month or the maximum legal rate, whichever is lower. Redline may also net or set-off amounts payable by Redline to the Customer under this Agreement or otherwise against any unpaid balance if the Customer fails to pay any amount when due.

The charges payable by the Customer under this Agreement are exclusive of, and the Customer shall assume and pay promptly, all applicable taxes, including value added tax and consumption taxes directly comparable therewith such as goods and sales taxes, including any non-deductible taxes and duties on services rendered by subcontractors of Redline, and duties or levies imposed by any authority, government or government agency (except income tax attributable to Redline). The payment of such sums shall be made in full without any set-off, deduction or withholding whatsoever.

If for any reason Redline receives in respect of any obligation of the Customer under this Agreement an amount (the “received amount”) in a currency other than United States dollars (“USD”), the received amount shall only constitute a discharge of the Customer’s obligation to the extent the amount (the “converted amount”) in USD which Redline is able to purchase with the received amount (at the prevailing market rate in the normal course of Redline’s business as soon as reasonably possible after receipt) is at least the amount of USD due to Redline. If the converted amount is less than the amount in USD expressed to be due to Redline, the Customer shall forthwith on demand pay to Redline an amount in the contractual currency equal to the deficit and reimburse Redline for all costs and expenses incurred in converting the received amount to USD.

Without limiting Redline’s other rights and remedies under this Agreement, Redline may suspend all or part of the applicable Support Services with written notice if any part of an undisputed invoice related to those Support Services remains unpaid for more than fourteen (14) calendar days after the Due Date.

Starting on and from the first anniversary of the Effective Date, Redline may, by providing fourteen (14) calendar days’ written notice, increase the monthly recurring charges once annually by the prevailing Consumer Price Index (“CPI”) (as determined at the date of the notice).

Redline reserves the right to charge for performance of services, maintenance, support or other activities requested by Customer that are outside of this Agreement.

SECTION 8 – LIMITED WARRANTY

8.1. Support Services Warranty. Unless agreed otherwise in writing by Customer and Redline, Redline warrants that each Redline Product that benefits from Support Services shall have a warranty period that lasts the greater of

  1. the remaining portion of the original warranty period; or

  2. ninety (90) days.

 

8.2. Services Warranty. Redline warrants that it will perform the Support Services hereunder in a manner that is consistent with industry practice.

Customer’s exclusive remedy for any breach of this warranty shall be for Redline, upon receipt of written notice, to use commercially reasonable efforts to cure such breach, or, failing any such cure in a reasonable period of time, to return the professional fees paid to Redline hereunder with respect to the services giving rise to such breach.

8.3. Limitations. The foregoing warranties apply only to Customer and to its End-Users. Redline shall provide warranty service only for the most-current version of the Redline Products. Redline shall have no obligation to provide warranty services if a Material Defect in the Redline Product is caused by:

  1. a malfunction of non-Redline hardware or software;

  2. modification of the Redline Product not made by Redline;

  3. operator error; or

  4. use of the Redline Product that is not in accordance with the operating instructions for the Redline Products.

 

Redline will accept warranty returns only from Customer and Customer must arrange all details of such returns with End-Users eligible under the foregoing warranties. Redline has no liability for general, consequential, incidental or special damages. These include lost profits and the cost of the installation or removal of any Redline Products, the installation of repaired or replacement Redline Products, and any inspection, testing, or redesign caused by any defect or by the repair or replacement of Products arising from a defect in any Redline Product.

8.4. Disclaimer. EXCEPT FOR THE WARRANTIES STATED IN THE ABOVE, REDLINE DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES ON REDLINE PRODUCTS OR SERVICES FURNISHED HEREUNDER, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ANY “ACTS OF GOD” INCLUDING, BUT NOT LIMITED TO, LIGHTNING DAMAGE WILL NOT BE COVERED UNDER THIS AGREEMENT AND ANY DAMAGE TO THE EQUIPMENT AS A RESULT OF AN “ACT OF GOD” WILL NOT BE COVERED UNDER THE REDLINE WARRANTY POLICY. THE CUSTOMER WILL BE BILLED FOR THE PRICE OF THE PRODUCT FOR ANY PRODUCT RETURNED TO REDLINE THAT IS DEEMED TO HAVE FAILED AS A RESULT OF AN “ACT OF GOD”.

SECTION 9 – TERM AND TERMINATION

9.1. Term. This Agreement shall continue in force for an initial term described on the front page of the RedCare Support Services Agreement attached hereto. Upon the expiration of this initial term, this Agreement may be extended for an additional one (1) year term (“Renewal Terms”) with written consent or extension by Redline unless the Agreement has previously been terminated under this Article 9. Renewal requests received by Redline more than ninety (90) days following contract expiration may be subject to a reinstatement fee. Redline reserves the right to confirm the health condition of the equipment prior to accepting service reinstatement. Equipment not meeting the minimum health requirement must be repaired at the Customer’s expense prior to service reinstatement. All equipment maintenance must be continuous with no gaps in coverage period. Reinstatement will be retroactive to the day following the last covered date.

9.2. Termination for Default. In the event of any material breach of this Agreement, the non breaching Party may terminate this Agreement by giving thirty (30) days prior written notice to the other Party; provided, however, that this Agreement shall not terminate if the other Party has cured the breach prior to the expiration of such thirty (30) day period, or if such breach cannot be cured within such thirty (30) day period, the other Party has taken steps within such thirty (30) day period to cure the breach and thereafter cured such breach as soon as practicable.

9.3. Termination for Insolvency. This Agreement shall terminate, without notice,

  1. upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings,

  2. upon either Party’s making an assignment for the benefit of creditors, or

  3. upon either Party’s dissolution or ceasing to do business.

 

9.4. Order of Precedence. If a conflict occurs between this Agreement and any Appendix, Exhibit or Schedule, unless otherwise specifically stated in the Appendices, Exhibits or Schedules, the order of precedence shall be:

  • Schedule A – Support Services;

  • Schedule B – List of Covered Redline Products;

  • Schedule C – Price; and

  • Agreement.

The terms and conditions contained in or related to Customer’s purchase orders shall have no bearing on this Agreement or any Work performed by Redline or Customer in association with this Agreement.

9.5. Survival. The provisions of Redline Communications Inc. Standard Terms and Conditions of Sale (https://rdlcom.com/sales-terms/) and Articles 4, 5, 6 and 8 of this Agreement shall survive the termination of this Agreement for any reason.

SECTION 10 – GENERAL TERMS AND CONDITIONS

10.1. Independent Contractors. The relationship of Redline and Customer established by this Agreement is that of independent contractors, operating at arms-length, and nothing contained in this Agreement shall be construed to

  1. give either Party the power to direct and control the day to day activities of the other,

  2. constitute Redline and Customer as partners, joint venturers, co owners or otherwise as participants in a joint or common undertaking, or

  3. allow Customer to create or assume any obligation on behalf of Redline for any purpose whatsoever.

 

10.2. Governing Law. This Agreement shall be governed by and construed under the laws of the Province of Ontario, Canada, without reference to conflicts of law principles.

10.3. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and merges all prior discussions between them. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing signed by both Parties.

10.4. Force Majeure. Except for the obligation to make payments, non-performance of either Party shall be excused to the extent the performance is rendered impossible by strike, fire, flood, terrorism, disease, epidemic, pandemic, shortage of labour, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of and is not caused by the negligence of the nonperforming Party.

10.5. Non-assignability and Binding Effect. Neither Party shall assign this Agreement to any third party without the prior written consent of the other Party, and attempted assignments shall be void and without effect, provided, however, that the merger or consolidation of one Party into, or the sale of all or substantially all of the assets of such Party to, a third party shall not be deemed to be an assignment. Subject to the foregoing, this Agreement shall be binding upon and enure to the benefit of the Parties hereto and their permitted successors and assigns.

10.6. Legal Expenses. The prevailing Party in any legal action brought by one Party against the other and arising out of this Agreement shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses, including court costs and reasonable attorneys’ fees.

10.7. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

10.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.