Incredimail 2013 Annual Report Download - page 250

EXECUTION VERSION
6. Mutual Release .
6.1 By Conduit . Conduit, on behalf of itself and each of its officers, directors, employees, and Affiliates (the “Conduit
Releasing Parties”), hereby irrevocably and unconditionally releases and forever discharges Microsoft and each and all of its former or present
directors, officers, agents, consultants, shareholders, investors, supervisors, employees, representatives, attorneys, and their successors and
assigns and all persons acting by, through, under, or in concert with any of them (the “Microsoft Released Parties”) from any and all charges,
demands, complaints, claims, proceedings, causes of action, orders, obligations, contracts, agreements, promises, debts, liabilities, controversies,
losses, damages, costs and expenses (including attorneys’ fees and costs actually incurred) of any kind or nature, whatsoever, fixed or
contingent, whether known or unknown, suspected or unsuspected, both at law and in equity, which Conduit or its Affiliates now has, has ever
had, or may hereafter have against the Microsoft Released Parties or any of them relating to or arising from or in connection with the Agreement
(including the negotiation and formation of the Agreement) prior to the Amendment Effective Date (the “Conduit Claims”). Conduit, on behalf
of itself and each of the Conduit Releasing Parties, covenants and agrees never to commence, prosecute, or cause, permit, or advise to be
commenced or prosecuted on behalf of Conduit or any of the Conduit Releasing Parties, any action, suit or proceeding based upon any Conduit
Claim, and Conduit shall procure that the other Conduit Releasing Parties shall comply with the terms of this Section 6.1 as if they were a party
to it.
6.2 By Microsoft . Microsoft, on behalf of itself and each of its officers, directors, employees, and Affiliates (the
“Microsoft Releasing Parties”), hereby irrevocably and unconditionally releases and forever discharges Conduit and each and all of its former or
present directors, officers, agents, consultants, shareholders, investors, supervisors, employees, representatives, attorneys, and their successors
and assigns and all persons acting by, through, under, or in concert with any of them (the “Conduit Released Parties”) from any and all charges,
demands, complaints, claims, proceedings, causes of action, orders, obligations, contracts, agreements, promises, debts, liabilities, controversies,
losses, damages, costs and expenses (including attorneys’ fees and costs actually incurred) of any kind or nature, whatsoever, fixed or
contingent, whether known or unknown, suspected or unsuspected, both at law and in equity, which Microsoft or its Affiliates now has, has ever
had, or may hereafter have against the Conduit Released Parties or any of them relating to or arising from or in connection with the Agreement
(including the negotiation and formation of the Agreement) prior to the Amendment Effective Date (the “Microsoft Claims”). Microsoft, on
behalf of itself and each of the Microsoft Releasing Parties, covenants and agrees never to commence, prosecute, or cause, permit, or advise to
be commenced or prosecuted on behalf of Microsoft or any of the Microsoft Releasing Parties, any action, suit or proceeding based upon any
Microsoft Claim, and Microsoft shall procure that the other Microsoft Releasing Parties shall comply with the terms of this Section 6.2 as if they
were a party to it.
6.3 Waiver
. Each Party has been advised of the existence of Section 1542 of the California Civil Code which provides as
follows:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of
executing the release, which if known to him or her must have materially affected his or her settlement with the debtor.
Each Party hereby irrevocably waives and relinquishes all rights and benefits which it has or may have under California Civil Code, Section
1542, as well as any other Law, as it pertains to the general releases above, and acknowledges and agrees that this waiver is an essential and
material term of this Amendment, and that without such waiver this Amendment would not have been entered into. Each Party represents to the
other Party that it has received the advice of its legal counsel and understands and acknowledges the significance and consequence of this waiver
of Section 1542.
6.4 Intended Beneficiaries . Each of the Microsoft Released Parties and the Conduit Released Parties are intended third-
party beneficiaries of this Section 6 and shall be entitled to enforce the releases directly against the releasing Party and each of its Affiliates.
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