2010/07/07 Council Agenda Packet

J contain ideas and concepts similar to those that may be developed by Developer. Nothing in this Agreement shall prevent Autodesk from licensing, acquiring or independently developing and marketing, directly or indirectly through third parties,products similar to and competitive with software developed by, or on behalf of Developer. Nothing in this Agreement shall be construed to grant Developer any rights in any such independently developed products so developed or acquired by Autodesk, or any rights to the revenues or any portion thereof derived by Autodesk from the use,sale, lease, license or other disposal of any such independently developed products. 14. LIMITATION OF LIABILITY. IN NO EVENT SHALL AUTODESK BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, DIRECT OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT OR USE OF THE SOFTWARE OR CONFIDENTIAL INFORMATION, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT AUTODESK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Developer's sole and exclusive remedy for breach of this Agreement by Autodesk, whether based in contract, tort or otherwise, shall be a pro rata refund of the current Enrollment Fee paid to Autodesk. These limitations shall apply notwithstanding any fundamental breach,breach of a fundamental term,or failure of essential purpose of any limited remedy. 15. GENERAL PROVISIONS. 15.1 This Agreement shall be construed, governed by and interpreted in accordance with the laws of California, without regard to choice of law principles. Any litigation between the parties shall be commenced and maintained in the Superior Court of the State of California, County of Marin, or in the United States District Court for the Northern District of California in San Francisco. The parties expressly submit themselves to the exclusive jurisdiction of such courts and the parties'agree and submit to the personal and jurisdiction and venue of those courts.The U.N.Convention on Contracts for the International Sale of Goods does not apply to this Agreement. 15.2 Developer shall not assignor sublicense any right or license granted pursuant to this Agreement. 15.3 Any and all amendments, alterations, or additions to this Agreement must be in writing and executed by an authorized representative of each party. No modifications to this Agreement proposed by Developer, or "riders" whether inserted in the page margins or attached on separate pages, shall be binding on Autodesk unless signed or initialed by a duly authorized representative of Autodesk. 15.4 The failure of either party at any time to require performance by the other party of any provision hereof will not affect in any way the right to require such performance at any time thereafter. The waiver by either party of a breach of any provision hereof will not be taken or held by the other party to be a waiver of the provision itself unless such a waiver is expressed in writing. 15.5 The prevailing party in any legal action shall be entitled to reimbursement of its expenses including without limitation reasonable attorney's fees. 15.6 This Agreement may be executed in counterparts, each shall be deemed to be an original and all when taken together constitute one and the same Agreement. 15.7 The individuals signing this Agreement on behalf of each of the parties have due authority to bind their respective companies to the terms and conditions of this Agreement. 15.8 This Agreement and the ADN Membership Application,which is incorporated herein by reference, constitutes the entire and exclusive Agreement between the parties with respect to the subject matter ADN Program Agreement-Americas Page 10 0111 II-Nov-09 105