xi
E
XHIBIT
A: E
ND
U
SER
L
ICENSE
A
GREEMENT
E
ND
U
SER
L
ICENSE
A
GREEMENT
(EULA)
FREE; AND (B) THE IS5COM MATERIALS ARE PROVIDED “
AS IS
” WITHOUT WARRANTY OR
CONDITION OF ANY KIND.
–
5.2 Limitation of Liability
EXCEPT AS EXPRESSLY PROVIDED IN THE CONTRACT, IN NO EVENT SHALL IS5COM BE LIABLE
TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSE
-
QUENTIAL DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS EULA EVEN IF ADVISE
OF THE POSSIBILITY THEREOF. THIS LIMITATION SHALL APPLY IRRESPECTIVE OF THE NATURE
OF THE CAUSE OF ACTION, DEMAND OR CLAIM, INCLUDING BREACH OF CONTRACT, NEGLI
-
GENCE, TORT OR ANY OTHER LEGAL THEORY, AND SHALL SURVIVE A FUNDAMENTAL BREACH
OR BREACHES AND/OR FAILURE OF THE ESSENTIAL PURPOSE OF THIS EULA.
6)
TERM
–
6.1 Term
Customer’s right to use iS5Com Materials shall terminate at such time as set out in the Con
-
tract or upon termination or expiration of the Contract, in each case at which time this EULA
shall be deemed to terminate.
–
6.2 Survival
Each of Sections 1, 2.4, 3, 4, 5, 6.2, and 7 shall survive termination of the EULA.
7)
MISCELLANEOUS
–
7.1 Miscellaneous
This EULA is (together with, as applicable, any click-wrap license agreement or Third Party Li
-
cense Terms pertaining to the use of iS5Com Materials) the entire agreement between the
Customer and iS5Com pertaining to the Customer’s right to access and use iS5Com Materials,
and supersedes all prior or collateral oral or written representations or agreements related
thereto. Notwithstanding anything to the contrary contained in the Contract, to the extent of
any inconsistency between this EULA and the Contract, or any such applicable click-wrap
agreement, this EULA shall take precedence over the Contract and such click- wrap agree
-
ment. In the event that one or more of the provisions is found to be illegal or unenforceable,
this EULA shall not be rendered inoperative but the remaining provisions shall continue in full
force and effect. The parties expressly disclaim the application of the United Nations Conven
-
tion for the International Sale of Goods. This EULA shall be governed by the laws of the Prov
-
ince of Ontario, Canada, and federal laws of Canada applicable therein. In giving effect to this
EULA, neither party will be or be deemed an agent of the other for any purpose and their re
-
lationship in law to the other will be that of independent contractors. Any waiver of any terms
or conditions of this EULA: (a) will be effective only if in writing and signed by the party grant
-
ing such waiver, and (b) shall be effective only in the specific instance and for the specific pur
-
pose for which it has been given and shall not be deemed or constitute a waiver of any other
provisions (whether or not similar) nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided. The failure of either party to exercise, and any delay in exercis
-
ing, any of its rights hereunder, in whole or in part, shall not constitute or be deemed a waiver
or forfeiture of such rights, neither in the specific instance nor on a continuing basis. No single
or partial exercise of any such right shall preclude any other or further exercise of such right
or the exercise of any other right. Customer shall not assign or transfer this EULA or any of its
rights or obligations hereunder, in whole or in part, without the prior written consent of
