This excerpt taken from the NDAQ 8-K filed Sep 9, 2005.
Attn: Office of General Counsel - Contracts Group
Section 37. Assignment. Neither party may assign this Agreement nor any right or obligation contained herein without the prior written consent of the other party provided, however, either party may assign this Agreement to an affiliate that owns, is owned by, or is under common control with the assigning party. In the event assignment is permitted the original party to this Agreement shall remain liable for the obligations hereunder and be a guarantor for the assignees performance hereunder.
Section 38. Governing Law. This Agreement shall be deemed to have been made in the State of New York and will be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the State of New York, without reference to its principles of conflicts of laws. The parties hereby consent to submit to the jurisdiction of the federal or state courts of or for the State of New York in connection with any action or proceeding instituted relating to this Agreement.
Section 39. Subsequent Parties; Limited Relationship. This Agreement shall inure to the benefit of and shall be binding upon the parties hereto and their respective permitted successors, or assigns. Nothing in this Agreement, express or implied, is intended to or shall: (a) confer on any person other than the parties hereto, or their respective permitted successors or assigns, any rights to remedies under or by reason of this Agreement; (b) constitute the parties hereto partners or participants in a joint venture; or (c) appoint one party the agent of the other.
Section 40. Entire Agreement. This Agreement (including the Exhibits hereto) constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior negotiations, communications, writings, and understandings. The parties expressly acknowledge and agree that this Agreement will supersede all prior agreements between them. In the event of any conflict between the provisions of this Agreement and any additional provisions contained in other agreements or documents, including any pre-printed language, the provisions of this Agreement shall prevail.
Section 41. Survival Of Provisions. The terms of this Agreement apply to those rights that survive any cancellation, termination, or rescission, namelyperpetual licenses, transfer of assets, payment obligations, as well as Confidentiality, Non-Use of Intellectual Property, and Indemnification sections of this Agreement, and any warranties.
Section 42. Authorization. This Agreement will not be binding unless executed by authorized officers of NASD and Nasdaq. Nasdaq and NASD and the persons executing this Agreement represent that such persons are duly authorized by all necessary and appropriate corporate or other action to execute this Agreement on behalf of NASD and Nasdaq.
Section 43. Amendment, Waiver, and Severability. Except as otherwise provided herein, no provision of this Agreement may be amended, modified, or waived, unless by an instrument in writing executed by a duly authorized officer of the party against whom enforcement of such amendment, modification, or waiver is sought.
43.a. Waiver. No failure on the part of NASD or Nasdaq to exercise, no delay in exercising, and no course of dealing with respect to any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement.
43.b. Severability. If any of the provisions of this Agreement, or application thereof to any person or circumstance, shall to any extent be held invalid or unenforceable, the remainder of this Agreement, or the application of such terms or provisions to persons or circumstances other than those as to which they are held invalid or unenforceable, shall not be affected thereby and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
Section 44. Good Faith/Reasonableness. The parties will act in good faith in the performance of their respective obligations under this Agreement and, unless otherwise expressly provided, will not unreasonably withhold, and will act as promptly as is reasonably practicable under the circumstances in granting or denying, any consent or approval required hereunder.
Section 45. Covenant of Further Assurances. NASD and Nasdaq covenant and agree that, subsequent to the execution and delivery of this Agreement and without any additional consideration, they will each execute and deliver any further legal instruments and perform any acts that are or may become reasonably necessary to effectuate the purposes of this Agreement.
Section 46. Interpretation. The masculine, feminine or neuter gender and the singular or plural number shall be deemed to include the other gender or numbers where the context so indicates or requires. Unless otherwise expressly provided, references to days, months or years are to calendar days, months or years. Person or persons includes individuals, partnerships, corporations, government agencies or other entities. Section headings are included for convenience only and are not to be used to construe or interpret this Agreement.
Section 47. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and such counterpart together shall constitute but one and the same instrument.
Section 48. Conditions to Effectiveness. The parties understand and agree that Nasdaq shall have no obligations under this Agreement until and unless its Audit Committee approves the terms of this Agreement. Further, neither party shall have any obligation under this agreement in the event the parties fail to gain any SEC approvals.
IN WITNESS WHEREOF, each party has caused this Agreement to be executed on its behalf by its officers thereunto duly authorized on the day and year first above written.