2005/04/27 Council Agenda Packet

TERMINATION 15 Termination Right. BSM may terminate the licenses granted to the Licensee pursuant to this Agreement by notice in writing to the Licensee if(i) the Licensee commits any material breach of these Terms and Conditions or fails to make any payment payable to BSM, and (ii) the Licensee fails to rectify its default within fourteen(14)days of receiving written notice from BSM requiring it to so. Any notice, which BSM is entitled to deliver pursuant to this section, may be given at the address of the Licensee as stated in this Agreement or at the head office of the Licensee. Obligations of Licensee on Termination. Forthwith following termination of the Licensee's licenses pursuant to this section, the Licensee shall return to the Licensor any and all copies of the Software Product and the Program Documentation in its possession. Licensee shall also delete any electronic copies of the Software Product and Program Documentation from any computer equipment of the Licensee. Licenses Perpetual unless Terminated. Unless terminated in accordance with this Agreement,the licenses granted pursuant to this Agreement shall be perpetual. GOVERNING LAW In case of Canadian Customers, this Agreement and performance by the parties hereunder shall be construed in accordance with the laws of the Province of Ontario, Canada, and in case of US Customers, this Agreement and performance by the parties hereunder shall be construed in accordance with the laws of the State of Delaware, U.S.A. without regard to provisions on the conflicts of laws, Customer and BSM consent to the exclusive jurisdiction of, and venue in, the courts of Toronto, Ontario, Canada and Delaware, U.S.A. respectively. In any action or suit to enforce any right or remedy under this Agreement or to interpret any provision of this Agreement, the prevailing party shall be entitled to recover its costs including reasonable attorney's fees. MISCELLANEOUS MATTERS 9.1 Any consent by a party to,or waiver of,a breach of this Agreement by the other party,whether express or implied, shall not constitute a consent to,or waiver of,any different or subsequent breach. 9.2 This Agreement together with the Schedule(s)hereto is the exclusive statement of the entire agreement between BSM and the Licensee,and supersedes all prior oral or written representations or agreements between the parties,as to the subject matter hereof. Any modifications of this Agreement must be in writing and signed by both parties. No course of dealing between the parties or usage of trade shall be deemed to effect any such amendment or modification. 9.3 The terms and conditions of this Agreement and of the applicable BSM invoice or confirmation will apply to each order accepted or shipped by BSM hereunder. The provisions of Licensee's purchase order or other business forms will not apply to any order notwithstanding BSM's acknowledgment or acceptance of such order,unless such provisions are expressly agreed to in writing by BSM. 9.4 If any provision of this Agreement is held invalid,illegal,or unenforceable by a court of competent jurisdiction,the validity,legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby,and shall remain in full force and effect. 9.5 All headings and captions contained herein are for convenience and ease of reference only and are not to be considered in the construction or interpretation of any provision of this Agreement. 9.6 All notices,requests,demands and other communications hereunder shall be in writing and 157 Confidential BSM Stinger Hardware,software and Maintenance agreement V Oct04 Page 5