USING COMMERCIALLY REASONABLE EFFORTS TO MITIGATE OR ELIMINATE THE
CAUSE OF SUCH DELAY OR ITS EFFECTS AND, IF EVENTS IN THE NATURE OF THE FORCE
MAJEURE EVENT WERE FORESEEABLE, USE COMMERCIALLY REASONABLE EFFORTS PRIOR TO ITS
OCCURRENCE TO ANTICIPATE AND AVOID ITS OCCURRENCE OR EFFECT.
IN THE EVENT OF
SUCH FORCE MAJEURE EVENT, THE DATE OF PERFORMANCE HEREUNDER OR UNDER ANY OF THE
OTHER ALLIANCE AGREEMENTS SHALL BE EXTENDED FOR A PERIOD NOT TO EXCEED THE TIME
LOST BY REASON OF THE FAILURE OR DELAY.
SECTION 12.11.
COUNTERPARTS.
THIS AGREEMENT AND THE OTHER ALLIANCE AGREEMENTS
MAY BE EXECUTED IN TWO OR MORE COUNTERPARTS, EACH OF WHICH SHALL BE BINDING AS
OF THE DATE FIRST WRITTEN ABOVE (OR, IN THE CASE OF THE SERVICES AGREEMENT, ON
THE DATE OF SUCH AGREEMENT OR AGREEMENTS), AND ALL OF WHICH SHALL CONSTITUTE ONE
AND THE SAME INSTRUMENT.
EACH SUCH COUNTERPART SHALL BE DEEMED AN ORIGINAL, AND
IT SHALL NOT BE NECESSARY IN MAKING PROOF OF THIS AGREEMENT OR THE ALLIANCE
AGREEMENTS TO PRODUCE OR ACCOUNT FOR MORE THAN ONE SUCH COUNTERPART.
SECTION 12.12.
GOVERNING LAW.
THIS AGREEMENT AND THE OTHER ALLIANCE AGREEMENTS
WILL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK (WITHOUT REGARD TO THE CHOICE OF LAW PROVISIONS THEREOF).
SECTION 12.13.
ORDER OF PRECEDENCE.
IN THE EVENT OF AN INCONSISTENCY OR
CONFLICT BETWEEN A PROVISION OF THIS AGREEMENT AND A PROVISION OF ANY OTHER
ALLIANCE AGREEMENT, THIS AGREEMENT SHALL PREVAIL UNLESS SUCH OTHER ALLIANCE
AGREEMENT EXPRESSLY PROVIDES THAT ITS PROVISION SUPERSEDES THE PROVISION OF THIS
AGREEMENT.
SECTION 12.14.
NOTICES.
ANY AND ALL NOTICES, REQUESTS, DEMANDS AND OTHER
COMMUNICATIONS REQUIRED OR OTHERWISE CONTEMPLATED TO BE MADE UNDER THIS
AGREEMENT AND THE OTHER ALLIANCE AGREEMENTS SHALL BE IN WRITING AND IN ENGLISH,
SHALL BE PROVIDED BY ONE OR MORE OF THE FOLLOWING MEANS AND SHALL BE DEEMED TO
HAVE BEEN DULY GIVEN (A) IF DELIVERED PERSONALLY, WHEN RECEIVED, (B) IF
TRANSMITTED BY FACSIMILE (TO THOSE FOR WHOM A FACSIMILE NUMBER IS SET FORTH
BELOW), ON THE DATE OF RECEIPT OF THE TRANSMISSION CONFIRMED BY RECEIPT OF A
TRANSMITTAL CONFIRMATION, OR (C) IF DELIVERED BY INTERNATIONAL COURIER SERVICE,
ON THE FOURTH BUSINESS DAY FOLLOWING THE DATE OF DEPOSIT WITH SUCH COURIER
SERVICE.
All such notices, requests, demands and other communications relating to any of
the Alliance Agreements shall be addressed as follows:
(A)
IF TO ACI:
ACI Worldwide, Inc.
120 Broadway, Suite 3350
New York, New York 10271
Attention:
Philip Heasley, Chief Executive Officer
Telephone:
(646) 348-6700
Facsimile:
(212) 479-4000
38
with a copy (which copy shall not constitute notice) to the following in-house
counsel of ACI:
ACI Worldwide, Inc.
224 South 108th Avenue, Suite 7
Omaha, Nebraska 68154
Attention:
Dennis P. Byrnes, Senior Vice President and General Counsel
Telephone:
(402) 390-8993
Facsimile:
(402) 390-8077
(B)
IF TO IBM:
IBM CORPORATION
NEW ORCHARD ROAD
ARMONK, NY 10504
ATTENTION:
JAMES WALLIS, IBM ALLIANCE EXECUTIVE
TELEPHONE:
(914) 766-1035
WITH A COPY (WHICH COPY SHALL NOT CONSTITUTE NOTICE)