IN THE
CASE OF WAIVER, BY THE PARTY OR PARTIES WAIVING COMPLIANCE, PROVIDED, THAT IN
THE CASE OF IG, SUCH AMENDMENT MUST BE APPROVED BY A MAJORITY OF THE MEMBERS OF
IG'S BOARD OF DIRECTORS WHO ARE NOT SELECTED BY OR AFFILIATED WITH ACCESS.
THE
DELAY OR FAILURE OF ANY PARTY AT ANY TIME OR TIMES TO REQUIRE PERFORMANCE OF ANY
PROVISIONS SHALL IN NO MANNER AFFECT THE RIGHTS AT A LATER TIME TO ENFORCE THE
SAME. NO WAIVER BY ANY PARTY OF ANY CONDITION OR OF THE BREACH OF ANY TERM
CONTAINED IN THIS AGREEMENT, WHETHER BY CONDUCT, OR OTHERWISE, IN ANY ONE OR
MORE INSTANCES, SHALL BE DEEMED TO BE, OR CONSIDERED AS, A FURTHER OR CONTINUING
WAIVER OF ANY SUCH CONDITION OR OF THE BREACH OF SUCH TERM OR ANY OTHER TERM OF
THIS AGREEMENT.
9.8
NO AGENCY OR PARTNERSHIP.
NOTHING CONTAINED IN THIS AGREEMENT SHALL GIVE EITHER PARTY THE RIGHT TO BIND
THE OTHER, OR BE DEEMED TO CONSTITUTE THE PARTIES AS AGENTS FOR THE OTHER OR AS
PARTNERS WITH EACH OTHER OR ANY THIRD PARTY.
9.9
ASSIGNMENT AND SUCCESSORS.
THIS AGREEMENT MAY NOT BE ASSIGNED BY EITHER PARTY WITHOUT THE WRITTEN CONSENT
OF THE OTHER WHICH SHALL NOT BE UNREASONABLY WITHHELD, EXCEPT THAT EACH PARTY
MAY ASSIGN THIS AGREEMENT AND THE RIGHTS, OBLIGATIONS AND INTERESTS OF SUCH
PARTY TO ANY PURCHASER OF ALL OR SUBSTANTIALLY ALL OF ITS ASSETS OR TO ANY
SUCCESSOR CORPORATION RESULTING FROM ANY MERGER OR CONSOLIDATION OF SUCH PARTY
WITH OR INTO SUCH CORPORATION.
9.10
FORCE MAJEURE.
NEITHER IG NOR
ACCESS SHALL BE LIABLE FOR FAILURE OF OR DELAY IN PERFORMING OBLIGATIONS SET
FORTH IN THIS AGREEMENT, AND NEITHER SHALL BE DEEMED IN BREACH OF ITS
OBLIGATIONS, IF SUCH FAILURE OR DELAY IS DUE TO NATURAL DISASTERS OR ANY CAUSES
BEYOND THE REASONABLE CONTROL OF IG OR ACCESS.
IN EVENT OF SUCH FORCE MAJEURE,
THE PARTY AFFECTED THEREBY SHALL USE REASONABLE EFFORTS TO CURE OR OVERCOME THE
SAME AND RESUME PERFORMANCE OF ITS OBLIGATIONS HEREUNDER.
9.11
INTERPRETATION.
THE PARTIES
HERETO ACKNOWLEDGE AND AGREE THAT:
(I) EACH PARTY AND ITS COUNSEL REVIEWED AND
NEGOTIATED THE TERMS AND PROVISIONS OF THIS AGREEMENT AND HAVE CONTRIBUTED TO
ITS REVISION; (II) THE RULE OF CONSTRUCTION TO THE EFFECT THAT ANY AMBIGUITIES
ARE RESOLVED AGAINST THE DRAFTING PARTY SHALL NOT BE EMPLOYED IN THE
INTERPRETATION OF THIS AGREEMENT; AND (III) THE TERMS AND PROVISIONS OF THIS
AGREEMENT SHALL BE CONSTRUED FAIRLY AS TO ALL PARTIES HERETO AND NOT IN A FAVOR
OF OR AGAINST ANY PARTY, REGARDLESS OF WHICH PARTY WAS GENERALLY RESPONSIBLE FOR
THE PREPARATION OF THIS AGREEMENT.
9.12
INTEGRATION; SEVERABILITY.
THIS
AGREEMENT IS THE SOLE AGREEMENT WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
SUPERSEDES ALL OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN THE PARTIES WITH
RESPECT TO SAME.
IF ANY PROVISION OF THIS AGREEMENT IS OR BECOMES
12
INVALID OR IS RULED INVALID BY ANY COURT OF COMPETENT JURISDICTION OR IS DEEMED
UNENFORCEABLE, IT IS THE INTENTION OF THE PARTIES THAT THE REMAINDER