UPON ANY FACTS, PROMISES,
UNDERTAKINGS OR REPRESENTATIONS MADE BY ANY OTHER PARTY, OR THE AGENTS OR
ATTORNEYS OF ANY OTHER PARTY, PRIOR TO THE EXECUTION HEREOF AND NOT INCLUDED IN
THIS AGREEMENT.
24.
THIS AGREEMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS.
ELAN-POLO, INCLUDING ITS AFFILIATES, OFFICERS AND AGENTS, ACKNOWLEDGES
AND AGREES THAT THAT THIS AGREEMENT AND THE TECHNOLOGY AGREEMENT ARE PERSONAL.
AS SUCH, ELAN-POLO MAY NOT ASSIGN THIS AGREEMENT OR THE TECHNOLOGY AGREEMENT, BY
OPERATION OF LAW OR OTHERWISE, WITHOUT THE PRIOR WRITTEN APPROVAL OF HEELING.
25
ANY NOTICE OR COMMUNICATION REQUIRED OR
PERMITTED TO BE GIVEN BY EITHER PARTY HEREUNDER SHALL BE DEEMED SUFFICIENTLY
GIVEN IF MAILED BY REGISTERED MAIL OR BY NATIONALLY RECOGNIZED COURIER (FEDERAL
EXPRESS, UPS, OR THE LIKE) AND ADDRESSED TO THE PARTY TO WHOM NOTICE IS GIVEN AS
FOLLOWS:
IF TO ELAN-POLO:
ELAN-POLO, INC.
JOSEPH V. RUSSELL, CO-CEO
603 MELROSE AVENUE
NASHVILLE, TN 37211
WITH A COPY (WHICH SHALL NOT CONSTITUTE NOTICE) FAXED TO ATTORNEY TIM F.
WILLIAMS, ESQ. AT (864) 233-7342, AND EMAILED TO TIMW@DORITY-MANNING.COM
16
IF TO HEELING:
HEELING SPORTS LIMITED
MICHAEL HESSONG, CFO
3200 BELMEADE
CARROLLTON, TEXAS 75006
WITH A COPY
(WHICH SHALL NOT CONSTITUTE NOTICE) FAXED TO ATTORNEY ROBERT J.
WARD, ESQ. AT (214) 999-3266, AND EMAILED TO RWARD@GARDERE.COM.
26.
NO BREACH OF ANY PROVISION OF THIS AGREEMENT
CAN BE WAIVED UNLESS DONE SO EXPRESSLY AND IN WRITING. EXPRESS WAIVER OF ANY ONE
BREACH SHALL NOT BE DEEMED A WAIVER OF ANY OTHER BREACH OF THE SAME OR OF ANY
OTHER PROVISION HEREOF. THIS AGREEMENT MAY BE AMENDED OR MODIFIED ONLY BY A
WRITTEN AGREEMENT EXECUTED BY THE PARTIES HERETO.
27.
EACH PERSON EXECUTING THIS AGREEMENT
WARRANTS THAT HE IS AUTHORIZED TO EXECUTE THE AGREEMENT ON BEHALF OF THE PARTY
FOR WHOM HE SIGNS.
28.
THIS AGREEMENT SHALL BE GOVERNED,
INTERPRETED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS,
WITHOUT REGARD TO ITS OR OTHER JURISDICTIONS CHOICE OF LAW RULES.
IT IS AGREED
THAT THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, DALLAS
DIVISION, SHALL HAVE EXCLUSIVE JURISDICTION AND VENUE TO DECIDE ANY DISPUTES
REGARDING THIS AGREEMENT, THE TECHNOLOGY AGREEMENT, OR ANY RELATED DISPUTE AMONG
THE PARTIES.
29.
THE TERM "AFFILIATES" AND "REPRESENTATIVES"
AS USED IN THIS AGREEMENT SHALL MEAN ANY PERSON OR ENTITY THAT DIRECTLY OR
INDIRECTLY THROUGH ONE OR MORE INTERMEDIARIES, CONTROLS OR IS CONTROLLED BY, OR
IS UNDER COMMON CONTROL (THROUGH THE POWER TO DIRECT OR CAUSE THE DIRECTION OF
THE MANAGEMENT OR POLICIES OF SUCH PERSON OR ENTITY THROUGH OWNERSHIP OF VOTING
SECURITIES, BY CONTRACT OR OTHERWISE) WITH SUCH PERSON OR ENTITY.
30.
THIS AGREEMENT MAY BE SIGNED IN ONE OR MORE
COUNTERPARTS, AND EACH FULLY EXECUTED COUNTERPART SHALL BE DEEMED AN ORIGINAL OF
THIS AGREEMENT WHICH, WHEN TAKEN TOGETHER,
17
REPRESENT A FULLY EXECUTED AND COMPLETE AGREEMENT.
FACSIMILE SIGNATURES SHALL
BE DEEMED ORIGINAL SIGNATURES.
31.
EXCEPT WHERE A SHORTER TIME PERIOD IS
EXPRESSLY SPECIFIED ABOVE,