RIGHT HEREUNDER SHALL IMPAIR SUCH RIGHT OR BE
CONSTRUED TO BE A WAIVER OF, OR ACQUIESCENCE IN, ANY BREACH OF ANY
REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT.
12.
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS; PROVIDED, HOWEVER, THAT NO PARTY HERETO MAY ASSIGN ITS RIGHTS OR
DELEGATE ITS OBLIGATIONS UNDER THIS AGREEMENT WITHOUT THE EXPRESS PRIOR WRITTEN
CONSENT OF THE OTHER PARTY HERETO.
EXCEPT AS PROVIDED IN SECTION 5, NOTHING IN
THIS AGREEMENT IS INTENDED TO CONFER UPON ANY PERSON NOT A PARTY HERETO (AND
THEIR SUCCESSORS AND ASSIGNS) ANY RIGHTS, REMEDIES, OBLIGATIONS OR LIABILITIES
UNDER OR BY REASON OF THIS AGREEMENT.
13.
SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
THE
REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN SHALL SURVIVE THE CLOSING AND
SHALL THEREUPON TERMINATE 18 MONTHS FROM THE CLOSING, EXCEPT THAT THE
REPRESENTATIONS CONTAINED IN SECTIONS 3(A), 3(B), 4(A), AND 4(B) SHALL SURVIVE
INDEFINITELY.
ALL COVENANTS AND AGREEMENTS CONTAINED HEREIN WHICH BY THEIR
TERMS CONTEMPLATE ACTIONS FOLLOWING THE CLOSING SHALL SURVIVE THE CLOSING AND
REMAIN IN FULL FORCE AND EFFECT IN ACCORDANCE WITH THEIR TERMS.
ALL OTHER
COVENANTS AND AGREEMENTS CONTAINED HEREIN SHALL NOT SURVIVE THE CLOSING AND
SHALL THEREUPON TERMINATE.
14.
HEADINGS; DEFINITIONS.
THE SECTION HEADINGS CONTAINED IN THIS
AGREEMENT ARE INSERTED FOR CONVENIENCE OF REFERENCE ONLY AND WILL NOT AFFECT THE
MEANING OR INTERPRETATION OF THIS AGREEMENT.
ALL REFERENCES TO SECTIONS
CONTAINED HEREIN MEAN SECTIONS OF THIS AGREEMENT UNLESS OTHERWISE STATED.
ALL
CAPITALIZED TERMS DEFINED HEREIN ARE EQUALLY APPLICABLE TO BOTH THE SINGULAR AND
PLURAL FORMS OF SUCH TERMS.
15.
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT OR THE
APPLICATION THEREOF TO ANY PERSON OR CIRCUMSTANCE IS HELD TO BE INVALID OR
UNENFORCEABLE TO ANY EXTENT, THE REMAINDER OF THIS AGREEMENT SHALL REMAIN IN
FULL FORCE AND EFFECT AND SHALL BE REFORMED TO RENDER THE AGREEMENT VALID AND
ENFORCEABLE WHILE REFLECTING TO THE GREATEST EXTENT PERMISSIBLE THE INTENT OF
THE PARTIES.
11
16.
NOTICES.
ALL NOTICES HEREUNDER SHALL BE SUFFICIENTLY GIVEN FOR
ALL PURPOSES HEREUNDER IF IN WRITING AND DELIVERED PERSONALLY, SENT BY
DOCUMENTED OVERNIGHT DELIVERY SERVICE OR, TO THE EXTENT RECEIPT IS CONFIRMED,
TELECOPY, TELEFAX OR OTHER ELECTRONIC TRANSMISSION SERVICE TO THE APPROPRIATE
ADDRESS OR NUMBER AS SET FORTH BELOW:
If to the Company:
Blue Calypso, Inc.
19111 North Dallas Parkway, Suite 200
Dallas, Texas 75287
(215) 247-1163
Attention: William Ogle, Chief Executive Officer
with a copy to:
Fox Rothschild LLP
997 Lenox Drive
Building 3
Lawrenceville, NJ 08648-2311
(609) 895-6719
Attention:
Sean F. Reid, Esquire
If to Purchaser:
TO THAT ADDRESS INDICATED ON THE SIGNATURE PAGE HEREOF.
17.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE.
18.
ARBITRATION.
IF A DISPUTE ARISES AS TO THE INTERPRETATION OF
THIS AGREEMENT, IT SHALL BE DECIDED IN AN ARBITRATION PROCEEDING CONFORMING TO
THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION APPLICABLE TO COMMERCIAL
ARBITRATION THEN IN EFFECT AT THE TIME