5.1 Entire Agreement.
This Agreement sets forth the entire agreement and understanding between the Parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
5.2 Relationship.
This Agreement does not create or imply any agency, partnership, or other joint relationship between the parties, and does not authorize either party to bind or obligate the other in any way.
5.3 Notices.
All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the Parties to the Agreement and addressed to each Party at the address set forth on the Cover Page or addressed to such other address as that Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices shall be effective on the date indicated in such confirmation. In the event that either Party delivers any notice hereunder by means of facsimile transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as set forth above or to such other address as the receiving Party may have previously substituted by written notice to the sender.
5.4 Amendments; Modifications.
This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
5.5 Assignment; Delegation.
Neither Party shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of the other Party, and, absent such consent, any attempted assignment or delegation will be null, void and of no effect. Notwithstanding the foregoing, Company may assign this Agreement, without consent, to any affiliate, or in connection with a merger, sale, transfer or other disposition of all or substantially all of its stock or assets.
5.6 No Third Party Beneficiaries.
The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
5.7 Severability.
If any part of this Agreement is void, prohibited or unenforceable, this Agreement is to be construed as if that part had never been part of the Agreement.
5.8 Waiver.
The failure of the Customer or Company to exercise any right under this Agreement, or to insist upon strict or full performance of the obligations under this Agreement, does not constitute a waiver or relinquishment of any provision of this Agreement. To bind a party, any such waiver must be express and in writing signed by that party. The rights of the parties under this Agreement are cumulative and not alternative.
5.9 Force Majeure.
Company is not responsible for the performance of, or in default of, any obligation or provision of this Agreement if delayed, hindered or prevented by labour disruptions, failure of the networks of other companies, casualties, civil disturbances, law, order of a court or other lawful authority, acts of civil or military authorities, terrorism, accidents, fires, epidemics, pandemics, natural disasters, or other catastrophes or events beyond Company’s reasonable control.
5.10 Mediation and Arbitration.
Company and the Customer shall use mediation and arbitration to resolve disputes between them arising from or relating to the Application Services or this Agreement, whether the dispute is based in contract, tort (including negligence), statute, or otherwise. If the business representatives of the parties have not been able to resolve any such dispute, in order to proceed with the dispute a party must submit the dispute to private and confidential mediation before a single mediator. If the dispute is not resolved after mediation, in order to proceed with the dispute a party must submit the dispute to private and confidential arbitration before a single arbitrator. Mediation and any arbitration will take place in the city and province in the Customer’s billing address in the Cover Page under the rules of the ADR Institute of Canada, including its rules as to initiation and submission of a dispute to mediation and arbitration, appointment of the mediator and any arbitrator, and responsibility for the fees and expenses arising from or relating to mediation and arbitration.
An arbitration decision will be final and binding on the parties, and the parties will have no rights of appeal. The decision may be enforced by court proceedings.
This subsection does not apply to the collection of any amounts owing to Company or any injunction application, except that in the case of an injunction application, the parties shall use mediation and arbitration to resolve the dispute that led to the application. The Customer waives any right it may have to start or participate in, and agrees to opt out of, any class action against Company arising from or relating to the Application Services or this Agreement. Nothing in this subsection restricts or intends to restrict the rights or powers of any administrative authority with jurisdiction over Company or the Application Services.
5.11 Governing Law.
If any provision of this Agreement is prohibited by or contravenes any CRTC order or decision, that provision applies only to the extent permitted by the order or decision. Company may change any terms and conditions of this Agreement, by giving 30 days advance notice to the Customer, to comply with any CRTC order or decision or when otherwise required by law or by a court or other lawful authority. Company and the Customer shall comply with all laws applicable to the exercise of their rights and performance of their obligations under this Agreement. This Agreement is subject to and is to be interpreted in accordance with the federal law of Canada and the laws of the province in the Customer’s billing address on the Cover Page of the Agreement, without regard to that province’s choice of law rules. Venue and jurisdiction will be in that province.
5.12 Counterparts.
This Agreement may be executed in any number of counterparts, each of which when so executed will be deemed to be an original and all of which when taken together will constitute one Agreement.
5.13 Headings.
The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.