OR ORDINANCE OR PUBLIC
POLICY, CONTRACT, TORT OR PROPERTY LAW THEORY, OR ANY OTHER CAUSE OF ACTION
WHATSOEVER THAT AROSE ON OR BEFORE THE EFFECTIVE DATE AND (B) ALL CLAIMS
RELATING IN ANY WAY TO CREDITOR'S RIGHT TO COLLECT THE PAYABLE AMOUNT
(COLLECTIVELY, THE CLAIMS IDENTIFIED IN (A) AND (B) SHALL BE REFERRED TO HEREIN
AS THE "RELEASED CLAIMS").
3.2
UNKNOWN CLAIMS.
IT IS FURTHER UNDERSTOOD AND AGREED THAT AS A
CONDITION OF THIS AGREEMENT, ALL RIGHTS UNDER SECTION 1542 OF THE CIVIL CODE OF
THE STATE OF CALIFORNIA ARE EXPRESSLY WAIVED BY CREDITOR.
SUCH SECTION READS AS
FOLLOWS:
"A general release does not extend to claims which the creditor does not know or
suspect to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with the debtor."
Notwithstanding Section 1542, and for the purpose of implementing a full and
complete release and discharge of the Released Claims, Creditor, for itself and
on behalf of the applicable Releasing Parties, expressly acknowledges that the
foregoing release is intended to include, and does include in its effect,
without limitation, all Released Claims which the Releasing Parties do not know
or suspect to exist in their favor against the Released Parties at the time of
execution hereof, and that the foregoing release expressly contemplates the
extinguishment of all such claims.
4.
MISCELLANEOUS PROVISIONS.
4.1
THIRD PARTY BENEFICIARIES.
CREDITOR HEREBY ACKNOWLEDGES THAT EACH
OF THE DYNTEK'S AFFILIATES ARE INTENDED TO BE THIRD PARTY BENEFICIARIES OF THIS
AGREEMENT WITH THE RIGHT TO ENFORCE ANY OF THE TERMS CONTAINED HEREIN.
4.2
GOVERNING LAW.
THIS AGREEMENT IS MADE UNDER AND SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
ANY
ACTION OR PROCEEDING BROUGHT TO ENFORCE THIS AGREEMENT SHALL BE INSTITUTED AND
MAINTAINED IN ORANGE COUNTY, CALIFORNIA AND THE PARTIES HERETO CONSENT TO SUCH
JURISDICTION.
4.3
ASSIGNMENT.
NEITHER THIS AGREEMENT NOR ANY DUTIES OR OBLIGATIONS
UNDER THIS AGREEMENT MAY BE ASSIGNED BY EITHER PARTY WITHOUT THE PRIOR WRITTEN
CONSENT OF THE OTHER PARTY.
4.4
ATTORNEYS' FEES.
IF ANY ACTION IS BROUGHT TO ENFORCE OR INTERPRET
THE PROVISIONS OF THIS AGREEMENT, THE PREVAILING PARTY IN SUCH ACTION WILL BE
ENTITLED TO ITS REASONABLE ATTORNEYS' FEES AND COSTS INCURRED, IN ADDITION TO
ANY OTHER RELIEF TO WHICH SUCH PARTY MAY BE ENTITLED.
4.5
WAIVER OF BREACH.
THE WAIVER OF EITHER PARTY OF A BREACH OF ANY
PROVISION
2
OF THIS AGREEMENT SHALL NOT OPERATE OR BE CONSTRUED AS A WAIVER OF ANY
SUBSEQUENT BREACH OF THIS AGREEMENT.
4.6
SEVERABILITY.
TO THE EXTENT ANY PROVISION OF THIS AGREEMENT SHALL
BE INVALID OR UNENFORCEABLE, IT SHALL BE CONSIDERED DELETED HEREFROM AND THE
REMAINDER OF SUCH PROVISION AND OF THIS AGREEMENT SHALL BE UNAFFECTED AND SHALL
CONTINUE IN FULL FORCE AND EFFECT.
IN FURTHERANCE AND NOT IN LIMITATION OF THE
FOREGOING, SHOULD THE DURATION OR THE GEOGRAPHICAL EXTENT OF OR BUSINESS
ACTIVITIES COVERED BY ANY PROVISION OF THIS AGREEMENT BE IN