This excerpt taken from the CMRO 8-K filed Jul 16, 2008.
13.1 Executed Counterparts. This Agreement may be executed in any number of original, fax or copied counterparts, and all counterparts shall be considered together as one agreement. A faxed or copied counterpart shall have the same force and effect as an original signed counterpart. Each of the parties hereby expressly forever waives any and all rights to raise the use of a fax machine to deliver a signature, or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a fax machine, as a defense to the formation of a contract.
13.2 Successors and Assigns. Except as expressly provided in this Agreement, each and all of the covenants, terms, provisions, conditions and agreements herein contained shall be binding upon and shall inure to the benefit of the successors and assigns of the parties hereto.
13.3 Section Headings. The section headings used in this Agreement are inserted for convenience and identification only and are not to be used in any manner to interpret this Agreement.
13.4 Severability. Each and every provision of this Agreement is severable and independent of any other term or provision of this Agreement. If any term or provision hereof is held void or invalid for any reason by a court of competent jurisdiction, such invalidity shall not affect the remainder of this Agreement.
13.5 Governing Law. This Agreement shall be governed by the laws of the State of California, without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of California.
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13.6 Entire Agreement. This Agreement and the additional documents referenced in Article 6, contain the entire understanding among the parties hereto and supersede any and all prior written or oral agreements, understandings, and negotiations between them respecting the subject matter contained herein.
13.7 Attorneys Fees. If any legal action (including arbitration) is necessary to enforce the terms and conditions of this Agreement, the prevailing party shall be entitled to costs and reasonable attorney fees.
13.8 Amendment. This Agreement may be amended or modified only by a writing signed by all of the parties.
13.9 Remedies Exclusive. Except for any remedy available for a breach of any provision in Article 10, the indemnification provision set forth in Article 9 shall constitute each partys exclusive remedy against the other party for any and all claims for breaches of the representations, warranties, covenants and agreements contained herein.
13.10 Waiver. No failure by any party to insist on the strict performance of any covenant, duty, agreement, or condition of this Agreement or to exercise any right or remedy on a breach shall constitute a waiver of any such breach or of any other covenant, duty, agreement, or condition.
13.11 Assignability. This Agreement is not assignable by either party without the expressed written consent of all parties.
13.12 Time. All parties agree that time is of the essence as to this Agreement.
13.13 Disputes. The parties agree to meet in order to resolve any disputes or controversies arising under this Agreement. Should they be unable to do so within 30 days of the parties first meeting concerning the dispute, then either may elect arbitration under the rules of the American Arbitration Association, and both parties are obligated to proceed thereunder. Arbitration shall proceed in Orange County, and the parties agree to be bound by the arbitrators award, which may be filed in the Superior Court of California, County of Orange. The parties consent to the jurisdiction of California Courts for enforcement of this determination by arbitration. The prevailing party shall be entitled to reimbursement for his attorneys fees and all costs associated with arbitration. In any arbitration proceeding conducted pursuant to the provisions of this Section, both parties shall have the right to conduct discovery, to call witnesses and to cross-examine the opposing partys witnesses, either through legal counsel, expert witnesses or both, and the provisions of the California Code of Civil Procedure (Right to Discovery; Procedure and Enforcement) are hereby incorporated into this Agreement by this reference and made a part hereof. The Arbitrator shall be required to follow California law, and any award made contrary to California law shall not be confirmed by the Court and, if confirmed, shall be subject to appeal as any other judgment entered by a Superior Court in California.
13.14 Provision Not Construed Against Party Drafting Agreement. This Agreement shall be deemed to have been drafted by all parties and, in the event of a dispute, no party hereto shall be entitled to claim that any provision should be construed against any other party by reason of the fact that it was drafted by one particular party.
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13.15 Incorporation of Schedules. The Schedules identified in this Agreement are incorporated herein by reference and made a part hereof as if set out in full herein.
13.16 Consents, Approvals and Discretion. Except as herein expressly provided to the contrary, whenever this Agreement requires consent or approval to be given by a party, or a party must or may exercise discretion, the parties agree that such consent or approval shall not be unreasonably withheld, conditioned, or delayed, and such discretion shall be reasonably exercised. Except as otherwise provided herein, if no response to a consent or request for approval is provided within ten (10) days from the receipt of the request, then the consent or approval shall be presumed to have been given.
13.17 No Third Party Beneficiaries. This Agreement has been entered into solely by and between the Parties, solely for their benefit. There is no intent by either party to create or establish a third party beneficiary to this Agreement, and no such third party shall have any right to enforce any right, claim, or cause of action created or established under this Agreement.
13.18 Payments. All payments owed from one party to another pursuant to this Agreement shall be payable by cashiers check or by wire transfer of immediately available funds.
13.19 Definitional Provisions. For purposes of this Agreement, (i) those words, names, or terms which are specifically defined herein shall have the meaning specifically ascribed to them; (ii) wherever from the context it appears appropriate, each term stated either in the singular or plural shall include the singular and plural; (iii) wherever from the context it appears appropriate, the masculine, feminine, or neuter gender, shall each include the others; (iv) the words hereof, herein, hereunder and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole, and not to any particular provision of this Agreement; (v) all references to Dollars or $ shall be construed as being United States dollars; and, (vi) all references to all statutes, statutory provisions, regulations, or similar administrative provisions shall be construed as a reference to such statute, statutory provision, regulation, or similar administrative provision as in force at the date of this Agreement and as may be subsequently amended.
[Signatures on Following Page]
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