ANY OBLIGATION OF CONFIDENTIALITY OR TRADE
SECRET OBLIGATION TO THE ORIGINATING PARTY.
12
ARTICLE XI
MISCELLANEOUS
SECTION 11.1
RELATIONSHIP. THE RELATIONSHIP OF EDWARDS AND PLC ESTABLISHED BY
THIS AGREEMENT IS OF INDEPENDENT CONTRACTORS AND NOT AGENTS (EXCEPT AS SET FORTH
IN SECTION 2.1), AND NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED:
(A)
TO GIVE EITHER PARTY THE POWER TO DIRECT OR
CONTROL THE DAILY ACTIVITIES OF THE OTHER PARTY BEYOND THE OBLIGATIONS IMPOSED
ON EDWARDS AND PLC, RESPECTIVELY, BY THIS AGREEMENT;
(B)
TO CONSTITUTE THE PARTIES AS PARTNERS, JOINT
VENTURES, CO-OWNERS OR OTHERWISE AS PARTICIPANTS IN JOINT UNDERTAKING; OR
(C)
TO ALLOW EITHER PARTY TO CREATE OR ASSUME
ANY OBLIGATION ON BEHALF OF THE OTHER PARTY FOR ANY PURPOSE WHATSOEVER. THE
PURCHASE, PROMOTION, AND RESALE OF, OR ANY OTHER LEGAL TRANSACTIONS CONCERNING
THE PRODUCTS HEREUNDER SHALL BE CARRIED OUT IN THE NAME OF AND FOR THE ACCOUNT
OF EDWARDS AS PRINCIPAL, AND EDWARDS SHALL NOT ENTER INTO ANY AGREEMENT WITH
THIRD PERSONS BINDING IN ANY WAY ON PLC.
SECTION 11.2
NO CONFLICT. EACH PARTY REPRESENTS AND WARRANTS TO THE OTHER
PARTIES THAT IT IS NOT SUBJECT TO ANY CONTRACTUAL OBLIGATION OR RESTRAINT WHICH
WILL MATERIALLY INTERFERE WITH ITS RIGHT AND ABILITY TO PERFORM PURSUANT TO THE
TERMS OF THIS AGREEMENT.
SECTION 11.3
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, INTERPRETED
UNDER, AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW
YORK, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401, 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B).
SECTION 11.4
ESCALATION. EDWARDS AND PLC (AND/OR PLC PARENT) WILL ATTEMPT IN
GOOD FAITH TO RESOLVE EXPEDITIOUSLY ANY DISPUTE, CLAIM OR CONTROVERSY ARISING
OUT OF OR RELATING TO THIS AGREEMENT (THE "DISPUTE") PROMPTLY BY NEGOTIATIONS
BETWEEN EXECUTIVES WHO HAVE AUTHORITY TO SETTLE THE CONTROVERSY AND WHO ARE AT A
HIGHER LEVEL OF MANAGEMENT THAN THE PERSONS WITH DIRECT RESPONSIBILITY FOR THE
ADMINISTRATION OF THIS AGREEMENT. EITHER PARTY MAY GIVE THE OTHER PARTY WRITTEN
NOTICE (THE "ESCALATION NOTICE") OF ANY DISPUTE NOT RESOLVED IN THE NORMAL
COURSE OF BUSINESS. WITHIN 15 DAYS AFTER DELIVERY OF THE ESCALATION NOTICE, THE
RECEIVING PARTY SHALL SUBMIT TO THE OTHER A WRITTEN RESPONSE. THE ESCALATION
NOTICE AND THE RESPONSE THERETO SHALL INCLUDE (A) A STATEMENT OF EACH PARTY'S
POSITION AND A SUMMARY OF ARGUMENTS SUPPORTING THAT POSITION, AND (B) THE NAME
AND TITLE OF THE EXECUTIVE WHO WILL REPRESENT THAT PARTY AND OF ANY OTHER PERSON
WHO WILL ACCOMPANY THE EXECUTIVE. WITHIN 30 DAYS AFTER DELIVERY OF THE
ESCALATION NOTICE, THE EXECUTIVES OF BOTH PARTIES SHALL MEET AT A MUTUALLY
ACCEPTABLE TIME AND PLACE, AND THEREAFTER AS OFTEN AS THEY REASONABLY DEEM
NECESSARY, TO ATTEMPT TO RESOLVE THE DISPUTE. ALL REASONABLE REQUESTS FOR
INFORMATION MADE BY ONE PARTY TO THE OTHER WILL BE HONORED. ALL NEGOTIATIONS
PURSUANT TO THIS CLAUSE ARE CONFIDENTIAL AND SHALL BE TREATED AS COMPROMISE AND
SETTLEMENT NEGOTIATIONS FOR PURPOSES OF APPLICABLE RULES OF EVIDENCE. THE
PARTIES SHALL ATTEMPT TO RESOLVE ANY DISPUTE