This excerpt taken from the LWSN 10-K filed Aug 29, 2006.
12.1 Assignment Except as permitted by this Section 12.1, neither Party may assign the Agreement or transfer any rights or obligations under the Agreement without the other Partys prior written consent, such consent to not be unreasonably withheld. Either Party may, if it is in Compliance with the Agreement and upon prompt written notice to the other Party but without the other Partys consent, assign all of the assigning Partys rights and obligations under this Agreement in connection with a merger, reorganization, sale or transfer of substantially ell of the capital stock or assets of the assigning Party or its applicable operating division, provided that the assigning Partys successor or transferee is not a developer and licensor of software that directly competes with the other Partys Products. Any assignment or transfer in violation of this Section 12.1 is void.
12.2 Independent Contractors. The relationship of Crystal Decisions and OEM established by this Agreement is that of independent contractors. This Agreement does not give either party the power to direct and control the day to day activities of the other, constitute the parties as partners, joint venturers, co-owners, principal-agent, or otherwise participants in a joint or common undertaking, or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
12.3 Entire Agreement. This Agreement constitutes the entire agreement of the parties and supersedes any prior and contemporaneous oral or written understanding as to the subject matter hereof. Each party acknowledges that it is entering into this Agreement as a result of its own independent investigation and not as a result of any representation of the other party not contained herein.
12.4 Amendments; Waivers. This Agreement may be modified only by a writing signed by the party to be charged. A waiver of any provision or breach is no waiver of any other provision or breach.
12.5 Force Majeure. Except as otherwise provided in Section 11.2, neither party shall be liable to the other for its failure to perform any of its obligations hereunder during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to earthquake, fire, flood, war, embargo, strike, riot, inability to secure materials and transportation facilities, or the intervention of any governmental authority.
12.6 Import and Export Controls. OEM shall comply with all applicable laws, including export, re-export and foreign policy controls and restrictions. OEM shall take all necessary actions and precautions to ensure that its customers do not contravene such laws or regulations.
12.7 Publicity. The terms of this Agreement are confidential. No press release or other like publicity regarding this Agreement may be made without the other partys prior written approval.
12.8 Notices. All notices and other communications hereunder shall be given in writing and delivered by a method that provides for proof of delivery. Notices are deemed given on receipt or attempted delivery (if receipt is refused).
12.9 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without regard to any conflict of laws principles.
12.10 Dispute Resolution.
(a) Except as otherwise provided below, any controversy or claim arising out of or relating to this Agreement shall be submitted to final and binding arbitration in San Francisco, California, in accordance with the commercial rules of the American Arbitration Association (AAA). The arbitration shall be before a single arbitrator, except that in the event the amount in controversy exceeds $100,000 the arbitration shall be before three (3) arbitrators and the decision of any two of them shall be binding. If not mutually agreed upon, the arbitrator(s) shall be selected according to AAA rules from a list, prepared by the AAA, of persons having expertise in the subject matter. Judgment upon the award may be entered in any court having jurisdiction thereof. This provision is self-executing, and in the event that either party fails to appear at any properly noticed arbitration proceeding, an award may be entered against such party notwithstanding said failure to appear.
(b) Notwithstanding the foregoing: (1) any claim relating to any of Crystal Decisions confidential information, the Trademarks, or other proprietary technology or intellectual property shall not be determined by arbitration, but only by a court located in San Francisco, California to whose jurisdiction the parties hereby consent; (2) any claim relating to OEMs confidential information, OEMs trademarks, or other proprietary technology or intellectual property shall not be determined by arbitration, but only by a court located in St. Paul, Minnesota to whose jurisdiction the parties hereby consent; and (3) each party acknowledges that any breach of its obligations under this Agreement with respect to the proprietary rights or confidential information of the other party will cause the other party irreparable harm, and therefore the non-breaching party will be entitled to equitable relief in addition to all other remedies provided by this Agreement or available at law or in equity, in any court of competent jurisdiction.
12.11 Attorneys Fees. In the event of any litigation or arbitration hereunder, the arbitrator or court shall award costs and reasonable attorneys fees to the prevailing party.
12.12 Severability. The terms of this Agreement are severable. If any term hereof is held invalid, illegal, or unenforceable for any reason whatsoever, such term shall be enforced to the fullest extent permitted by applicable law, and the validity, legality, and enforceability of the remaining terms shall not in any way be effected or impaired thereby.
OEM has read, understands and agrees to the terms of this Agreement and the undersigned represents that he or she is duly authorized to sign this Agreement.