NOTICE IS DEPOSITED IN THE UNITED STATES MAIL, IF MAILED BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, RETURN RECEIPT REQUESTED, (III) UPON THE DATE
SCHEDULED FOR DELIVERY AFTER SUCH NOTICE IS SENT BY A NATIONALLY RECOGNIZED
OVERNIGHT EXPRESS COURIER OR (IV) BY FAX UPON WRITTEN CONFIRMATION (INCLUDING
THE AUTOMATIC CONFIRMATION THAT IS RECEIVED FROM THE RECIPIENT'S FAX MACHINE) OF
RECEIPT BY THE RECIPIENT OF SUCH NOTICE:
if to Buyer, to:
with a copy to:
Datawatch Corporation
Quorum Office Park
271 Mill Road
Chelmsford, MA 01824
Attn: Chief Financial Officer
Phone: 978-441-2200
Facsimile: 978-453-4443
William B. Simmons, Jr.
Choate, Hall & Stewart LLP
Two International Place
Boston, MA 02110
Telephone: (617) 248-5095
Facsimile: (617) 248-4000
if to Seller, to:
with a copy to:
ClearStory Systems, Inc.
Alfred L. Browne, III
One Research Drive
Suite 200B
Westborough, MA 01581
Attn: Hank Nelson
Telephone: (508) 870-4100
Facsimile: (508) 870-4221
Sullivan & Worcester, LLP
One Post Office Square
Boston, MA 02109
Telephone: (617) 338-2800
Facsimile: (617) 338-2880
13.02
AMENDMENTS; NO WAIVERS.
(A)
ANY PROVISION OF THIS AGREEMENT MAY BE AMENDED PRIOR TO THE
CLOSING DATE IF, AND ONLY IF, SUCH AMENDMENT IS IN WRITING AND SIGNED BY BUYER
AND SELLER. ANY PROVISION OF THIS AGREEMENT MAY BE WAIVED BY BUYER OR SELLER IF
THE WAIVER IS IN WRITING AND SIGNED BY THE PARTY TO BE BOUND.
(B)
NO FAILURE OR DELAY BY EITHER PARTY IN EXERCISING ANY RIGHT,
POWER OR PRIVILEGE HEREUNDER SHALL OPERATE AS A WAIVER THEREOF NOR SHALL ANY
SINGLE OR PARTIAL EXERCISE THEREOF PRECLUDE ANY OTHER OR FURTHER EXERCISE
THEREOF OR THE EXERCISE OF ANY OTHER RIGHT, POWER OR PRIVILEGE. THE RIGHTS AND
REMEDIES HEREIN PROVIDED SHALL BE CUMULATIVE AND NOT EXCLUSIVE OF ANY RIGHTS OR
REMEDIES PROVIDED BY LAW.
44
13.03
EXPENSES. ALL COSTS AND EXPENSES INCURRED IN CONNECTION WITH THIS
AGREEMENT SHALL BE PAID BY THE PARTY INCURRING SUCH COST OR EXPENSE.
13.04
SUCCESSORS AND ASSIGNS. THE PROVISIONS OF THIS AGREEMENT SHALL BE
BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS.
13.05
GOVERNING LAW. THIS AGREEMENT AND THE ANCILLARY AGREEMENTS SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF DELAWARE,
WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SUCH STATE.
13.06
COUNTERPARTS; EFFECTIVENESS. THIS AGREEMENT MAY BE SIGNED IN ANY
NUMBER OF COUNTERPARTS, EACH OF WHICH SHALL BE AN ORIGINAL, WITH THE SAME EFFECT
AS IF THE SIGNATURES THERETO AND HERETO WERE UPON THE SAME INSTRUMENT. THIS
AGREEMENT SHALL BECOME EFFECTIVE WHEN EACH PARTY HERETO SHALL HAVE RECEIVED A
COUNTERPART HEREOF SIGNED BY THE OTHER PARTIES HERETO.
13.07
ENTIRE AGREEMENT. THIS AGREEMENT AND THE ANCILLARY AGREEMENTS
CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT
MATTER HEREOF AND SUPERSEDES ALL PRIOR AGREEMENTS, UNDERSTANDINGS AND
NEGOTIATIONS, BOTH WRITTEN AND ORAL, BETWEEN THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER HEREOF. NO REPRESENTATION, INDUCEMENT, PROMISE, UNDERSTANDING,
CONDITION OR WARRANTY NOT SET FORTH HEREIN HAS BEEN MADE OR RELIED UPON BY
EITHER