Allee, to:
CMS Solutions, Inc.
2727 N. Grove Industrial
Fresno, California
93727
Attn:
Mitchell Allee
With a copy to:
Caswell, Bell & Hillison, LLP
5200 N. Palm Avenue, Suite 211
Fresno, California 93704
Attn:
James Bell, Esq.
If to Licensee, to:
RPW Consolidated Information Systems Incorporated
1100 Peaked Hill Road
Bristol, NH
03222
Attn:
Rob Wilson
With copies to:
Allegiant Travel Company
8360 S. Durango Drive
Las Vegas, NV 89113
Attn:
Maurice J. Gallagher, Jr.
And also to:
Ellis Funk, P.C.
3490 Piedmont Road, Suite 400
Atlanta, GA
30305
Attn:
Robert B. Goldberg, Esq.
or to such other individual or address as a party hereto may designate for
itself by notice given as herein provided.
6.3
THIS AGREEMENT MAY BE EXECUTED SIMULTANEOUSLY IN COUNTERPARTS,
EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT ALL OF WHICH TOGETHER SHALL
CONSTITUTE ONE AND THE SAME INSTRUMENT.
THIS AGREEMENT MAY BE SIGNED BY THE
PARTIES IN SEPARATE COUNTERPARTS, WITH THE SAME EFFECT AS IF ALL PARTIES SIGNED
THE SAME COUNTERPART.
A COUNTERPART SIGNED BY A PARTY AND TRANSMITTED TO
ANOTHER PARTY BY FACSIMILE WILL HAVE THE SAME EFFECT AS THE DELIVERY OF THE
ORIGINAL COUNTERPART.
6.4
LICENSOR IS AND SHALL BE AN INDEPENDENT CONTRACTOR TO LICENSEE,
AND NOTHING HEREIN SHALL BE DEEMED TO CAUSE THIS AGREEMENT TO CREATE AN AGENCY,
PARTNERSHIP, OR JOINT VENTURE BETWEEN THE PARTIES.
NOTHING IN THIS AGREEMENT
SHALL BE INTERPRETED OR CONSTRUED AS CREATING OR ESTABLISHING THE RELATIONSHIP
OF EMPLOYER AND EMPLOYEE BETWEEN LICENSEE AND EITHER LICENSOR OR ANY EMPLOYEE OR
AGENT OF LICENSOR.
8
6.5
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS
EXECUTED IN AND PERFORMED ENTIRELY WITHIN THAT STATE.
6.6
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF
THE PARTIES HERETO AND THEIR RESPECTIVE HEIRS, PERSONAL REPRESENTATIVES,
SUCCESSORS AND ASSIGNS.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE
CONTRARY, LICENSEE SHALL BE PERMITTED TO TRANSFER (BY MERGER OR OTHERWISE) ALL
OF ITS RIGHT, TITLE AND INTEREST IN THIS AGREEMENT TO ALLEGIANT OR AN AFFILIATED
ENTITY.
IN THAT REGARD, ALLEGIANT (OR ITS AFFILIATE) SHALL BE A THIRD PARTY
BENEFICIARY OF THIS AGREEMENT, ENTITLED TO ENFORCE ANY PROVISIONS HEREOF TO THE
SAME EXTENT AS LICENSEE, WITH OR WITHOUT LICENSEE'S INVOLVEMENT IN SUCH
ENFORCEMENT PROCEEDINGS.
UPON SUCH TRANSFER AND ASSIGNMENT, ALLEGIANT SHALL
SUCCEED TO ALL RIGHTS OF LICENSEE HEREUNDER, INCLUDING, BUT NOT LIMITED TO,
LICENSEE'S RIGHTS TO INDEMNIFICATION PURSUANT TO SECTION 5.1 HEREOF.
6.7
THIS AGREEMENT SETS FORTH THE ENTIRE AGREEMENT AND UNDERSTANDING
OF THE PARTIES IN RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREBY AND SUPERSEDES
ALL PRIOR AGREEMENTS, ARRANGEMENTS AND UNDERSTANDINGS RELATING TO THE SUBJECT
MATTER HEREOF AND IS NOT INTENDED TO CONFER UPON ANY OTHER PERSON ANY RIGHTS OR
REMEDIES HEREUNDER.
THERE HAVE BEEN NO REPRESENTATIONS OR STATEMENTS, ORAL OR
WRITTEN, THAT HAVE BEEN RELIED ON BY ANY PARTY HERETO, EXCEPT THOSE EXPRESSLY
SET FORTH IN THIS AGREEMENT.
6.8
Subject to the terms and conditions expressly set forth herein,
the