RIGHTS OR OTHER APPLICABLE RIGHT, FORGENT SHALL NOTIFY SUCH
TRANSFEREE OF THIS AGREEMENT AND THE TRANSFEREE SHALL BE SUBJECT TO ALL TERMS
AND CONDITIONS HEREOF.
(D)
THIRD PARTY BENEFICIARY:
DIRECTV SHALL BE A THIRD-PARTY
BENEFICIARY OF THE RIGHTS GRANTED HEREIN TO OTHER COVERED PARTIES, AND
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, RESERVES THE RIGHT
TO ENFORCE THOSE RIGHTS ON BEHALF OF SUCH COVERED PARTIES.
(E)
COUNTERPARTS:
THIS AGREEMENT MAY BE EXECUTED IN ONE OR MORE
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
THIS AGREEMENT WILL
BECOME BINDING AND EFFECTIVE UPON THE EXCHANGE OF FACSIMILE COPIES OF THE
REQUIRED SIGNATURES.
THE PARTIES WILL THEREAFTER EXCHANGE FORMAL SIGNED
ORIGINALS OF THIS AGREEMENT FOR THEIR PERMANENT RECORDS.
(F)
WAIVER:
THE FAILURE OF ANY PARTY AT ANY TIME TO REQUIRE
PERFORMANCE BY ANY OTHER PARTY OF ANY PROVISION OF THIS AGREEMENT SHALL NOT BE
DEEMED A CONTINUING WAIVER OF THAT PROVISION OR A WAIVER OF ANY OTHER PROVISION
OF THIS AGREEMENT AND SHALL IN NO WAY AFFECT THE FULL RIGHT TO REQUIRE SUCH
PERFORMANCE FROM SUCH OTHER PARTY AT ANY TIME THEREAFTER.
(G)
NEGOTIATED AGREEMENT:
THE TERMS OF THIS AGREEMENT WERE NEGOTIATED
BY FORGENT AND DIRECTV, AND NEITHER OF THE PARTIES SHALL BE DEEMED THE SOLE
7
CONFIDENTIAL TREATMENT
AUTHOR OF THIS AGREEMENT.
EACH PARTY HAS BEEN REPRESENTED BY LEGAL COUNSEL IN
CONNECTION WITH THE NEGOTIATION AND EXECUTION OF THIS AGREEMENT.
(H)
SEVERABILITY:
IF ANY PROVISION OF THIS AGREEMENT IS DECLARED OR
FOUND TO BE ILLEGAL, UNENFORCEABLE OR VOID, AND THE REMAINDER OF THIS AGREEMENT
IS NOT MATERIALLY AFFECTED BY SUCH A DECLARATION OR FINDING AND IS CAPABLE OF
SUBSTANTIAL PERFORMANCE, THEN THE REMAINDER SHALL BE ENFORCED TO THE EXTENT
PERMITTED BY LAW.
(I)
HEADINGS:
THE HEADINGS TO SECTIONS AND PARAGRAPHS OF THIS
AGREEMENT SHALL NOT BE DEEMED A PART OF THIS AGREEMENT AND SHALL NOT AFFECT THE
INTERPRETATION OF THIS AGREEMENT.
(J)
VOLUNTARY EXECUTION:
THIS AGREEMENT IS EXECUTED VOLUNTARILY BY
EACH OF THE PARTIES HERETO WITHOUT ANY DURESS OR UNDUE INFLUENCE ON THE PART, OR
ON BEHALF, OF ANY OF THEM.
THE PARTIES HERETO REPRESENT AND WARRANT TO EACH
OTHER THAT THEY HAVE READ AND FULLY UNDERSTAND THE PROVISIONS OF THIS AGREEMENT
AND HAVE RELIED UPON THE ADVICE AND REPRESENTATION OF LEGAL COUNSEL OF THEIR OWN
CHOOSING.
(K)
ATTORNEYS' FEES:
FORGENT AND DIRECTV EACH SHALL BEAR ITS OWN
ATTORNEYS' FEES, COSTS AND EXPENSES IN CONNECTION WITH THE ACTION, WITH THE
NEGOTIATION AND PREPARATION OF THIS AGREEMENT, AND WITH THE COMPLETION OF
SETTLEMENT AS HEREIN PROVIDED.
(L)
GOVERNING LAW:
THIS AGREEMENT SHALL BE INTERPRETED, AND THE
RIGHTS AND DUTIES OF THE PARTIES HERETO SHALL BE DETERMINED, IN ACCORDANCE WITH
THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ITS CONFLICTS OF LAWS
PROVISIONS.
[***]
(M)
AUTHORITY:
EACH PARTY WARRANTS AND REPRESENTS THAT IT HAS ALL
NECESSARY RIGHTS AND IS FULLY AUTHORIZED TO ENTER INTO THIS AGREEMENT AND TO
CARRY OUT THE OBLIGATIONS PROVIDED FOR HEREIN.
(N)