9. Limitation of Liability. In no event will either party hereto be liable to the other for incidental, special or consequential damages arising out of, resulting from, or in any way connected with the performance or breach of the Agreement regardless of the form of action, even if such party has been advised of the possibility of such damages. Akua’s liability to the Company for any cause whatsoever, and regardless of the form of action (including negligence), arising out of, resulting from, or in any way connected with the performances or breach of the Agreement will in no event exceed the amount actually paid for the portion of the Services or deliverables involved. Neither of us will be liable for any delays or failures in performance due to circumstances beyond our reasonable control.
10. LIMITATIONS ON USE. Customer acknowledges and agrees that portions of the Embedded Software, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of Akua and its licensors. Accordingly, Customer shall not disassemble, decompile or reverse engineer the Embedded Software, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. In addition, Customer shall not reverse engineer copy or modify the Endpoint Hardware, in whole or in part, nor permit or authorize any third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. Customer shall not remove, amend, obscure or modify any product markings or any proprietary rights notice of Akua or its licensors or suppliers appearing on the Endpoint Hardware or as delivered to Customer.
11. Assignment. Neither party may assign this Agreement, in whole or in part, by operation of law or otherwise, without the written consent of the other party, which consent shall not be unreasonably withheld or delayed. Any attempt to assign or transfer this Agreement without such consent shall be null and of no effect. Notwithstanding the foregoing, however, each party shall have the right to assign this Agreement upon written notice to the other party, without the requirement to obtain consent: (i) to the surviving corporation in the event of a merger or acquisition of that party, or the purchase of all or substantially all of the assets of that party; or (ii) a company controlling, controlled or under common control with that party. For these purposes “control” means the ownership of a majority of the equity or the ability to elect the majority of the governing body of another entity. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and permitted assigns.
12. Governing Law & Venue. The Agreement will be governed by and construed in accordance with the laws of the State of Maryland, applicable to agreements made and to be fully performed therein. For the purpose of any suit, action or other proceeding arising out of or based on the Agreement, or the subject matter hereof (an “Action”), each party hereto
irrevocably submits to the jurisdiction of any state or federal court located in Baltimore County, Maryland, USA.
13. Indemnification. The Customer agrees to indemnify and hold harmless Akua, its affiliates and their respective control persons, managers, members, shareholders, directors, officers, employees and agents (“Indemnitees”), to the fullest legal extent against any and all claims, losses, damages, liabilities, costs and expenses as incurred, including all attorneys’ fees and costs of collection (collectively, “Losses”) in connection with, arising out of or related to Akua’s engagement under the Agreement and performance of the Services, including but not limited to any pending or threatened claim, litigation or other Action by or against the Company; provided, however, there will be excluded from such indemnification any such Losses that are found in a final court order to constitute willful misconduct or gross negligence on the part of Akua.
14. Waiver. The invalidity or unenforceability of any provision of the Agreement will not affect the invalidity or enforceability of any other provision of the Agreement, which will remain in full force and effect pursuant to the terms thereof. No failure by either party to exercise or enforce any of its rights under this Agreement will act as a waiver of such rights, and no waiver of a breach in a particular situation will be held to be a waiver of any other or subsequent breach
15. Entire Agreement. The Agreement incorporates the entire understanding of the parties regarding the subject matter hereof, and supersedes all previous agreements and understandings regarding the same, whether written or oral. The Agreement may not be amended and no provision hereof may be waived or modified except in writing and signed by each of the parties hereto.
16. Trademarks. Neither party grants the other party any rights to use its trademarks, service marks, or other proprietary symbols or designations; however, with the advance written consent of the other party, the requesting party may state in advertising, sales literature and correspondence, and other publicity, that the approving party has a relationship with the other party.
17. Representation and Warranties. The Company’s representative signing the Agreement hereby represents and warrants to CyberPoint, that (i) he or she has the unconditional authority to enter into the Agreement on behalf of the Company, and (ii) if the Company is a business entity, such authority has been granted in accordance with the requirements of the Company’s organizational documents. CyberPoint gives the same representation and warranty to the Company. The Agreement has been reviewed by the signatories thereto and their counsel; accordingly, there will be no construction of any provision against CyberPoint because the Agreement was drafted by CyberPoint, and the parties waive any statute or rule of law to such effect.
18. Severability. The invalidity or unenforceability of any provision of the Agreement will not affect the invalidity or enforceability of any other provision of the Agreement, which will remain in full force and effect pursuant to the terms thereof.
19. Counterparts; Electronic Delivery. The Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. Further, the Agreement may be executed by transfer of an originally signed document by facsimile or e-mail in PDF format, each of which will be as fully binding as an original document.