Terms and Conditions

RAD (Revolution Audiology Development) Services and Responsibilities.

1. RAD Services. RAD shall use commercially reasonable efforts to provide to Client the email and text automation marketing services (the “Services”) as described in an Order Form to be executed by Client and RAD (each, a “Order Form”). RAD shall be responsible for the payment of all compensation owed to its personnel, including, if applicable, the payment and withholding of social security and other payroll taxes, withholding of income taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits. Client acknowledges that RAD may, in the rendition of the Services hereunder, engage third party suppliers and other vendors and subcontractors (“Subcontractors”) from time to time to provide certain services. RAD shall remain fully responsible for the performance of each Subcontractors and its employees and for their compliance with all the terms and conditions of this Agreement as if they were RAD’s own Subcontractors or employees. Nothing contained in this Agreement shall create any contractual relationship between Client and any RAD Subcontractor.
2. Compliance with Laws. Each Party shall, to the best of its knowledge, at all times comply with all applicable federal, state, and local laws, ordinances, regulations, and orders, as well as judicial and administrative decisions (“Laws”) that are applicable to this Agreement and its performance hereunder. Without limiting the generality of the foregoing, each Party shall at all times, at its own expense, obtain and maintain all certifications, credentials, authorizations, licenses, and permits necessary to conduct that portion of its business relating to the exercise of its rights and the performance of its obligations under this Agreement.

Client Obligations and Responsibilities.

1. Client shall provide copies of or access to Client’s information, documents, samples, products, or other material (collectively, “Client Materials”) as RAD may reasonably request in order to carry out the Services in a timely manner, and ensure that they are complete and accurate in all material respects. Client and its licensors are and shall remain the sole and exclusive owner of all right, title, and interest in and to all Client Materials, including any and all trade secrets, trademarks, domain names, original works of authorship and related copyrights, and any other intangible property in which any person holds proprietary rights, title, interests, or protections, however arising, pursuant to the laws of any jurisdiction throughout the world (collectively “Intellectual Property”) therein. This shall include all applications, registrations, renewals, issues, reissues, extensions, divisions, and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing. Client shall respond promptly to any RAD request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for RAD to perform the Services in accordance with the requirements of this Agreement. Client shall comply with all applicable federal, state, and local laws, ordinances, regulations, and orders that are applicable to this Agreement and its performance hereunder.
2. Client’s failure to timely perform any Client tasks or provide any Client Materials may result in or require a change to the Services, the performance or delivery schedule, or fees and require the Parties to execute an amendment to document such impact. RAD may equitably delay any Services to the extent impacted by a Client failure to perform any Client tasks or provide Client Materials.

Services Terms.

1. Client shall have and retain sole responsibility for the content of its mailings, data and transmissions. RAD may suspend the Services upon five (5) days written notice to Client specifying the basis for such suspension if RAD reasonably believes that Client: (i) has violated any Laws in connection with Client’s use of the Services, (ii) is violating or has violated any terms of use or Client’s own privacy policies (“Terms”), (iii) is violating or has violated any third-party rights; or (iv) has misused any data or information or if Client has suffered a data security incident. RAD and Client shall use diligent efforts to resolve any such issues to RAD’s reasonable satisfaction during the five (5) day period, after which RAD may suspend the Services until Client provides RAD with appropriate evidence that Client complies with all Laws or Terms. If such suspension continues for fifteen (15) days without RAD reinstating the Services, RAD may terminate the applicable Order Form upon five (5) days written notice to Client. In the event of such a termination, RAD shall not have any further obligations under each Order Form but such termination shall not affect  Client’s payment obligations.
2. If an internet service provider (“ISP”) notifies RAD that a Client mailing has violated such ISP’s established acceptable conduct standards, then RAD may immediately suspend those Services until Client provides RAD with appropriate evidence that Client complies with all Terms. If Client fails to correct such violation within a reasonable time, then RAD may immediately terminate any effected Order Forms upon written notice to Client.
3. RAD may immediately suspend a Client mailing event prior to or during RAD processing without being deemed in breach of this Agreement if RAD learns or reasonably suspects that with respect to such mailing: (i) the list of individuals’ or entities’ (the “Recipients”) email addresses provided by Client to RAD in connection with the Services (the “Recipient List”) contains e-mail addresses obtained from known unsolicited commercial email purveyors; (ii) some or all of the Recipient List has been obtained without the permission of those on the Recipient List; or, (iii) Client has violated Laws or these Terms, including acceptable data hygiene and/or security requirements, in connection with the compilation or use of the Recipient List. In the event of such a suspension, RAD shall endeavor to inform Client within a reasonable period of time following such suspension and the parties shall discuss the appropriate corrective action.
4. With respect to each mailing pursuant to the Services, Client is solely responsible and liable for ensuring that: (a) each Client e-mail message shall clearly identifies the Client as ‘Sender’, as defined by the CAN SPAM Act of 2003, and with commercial messages, incorporate both commercial identification and postal identification of that ‘Sender’ within the message; (b) each Client email message includes a reasonable, working Internet-based mechanism for the Recipient to unsubscribe or opt-out, and where reasonable, unsubscribe instructions should include the e-mail address the mailing was sent to, the particular Client from which the Recipient may unsubscribe and be operable for thirty (30) days following message deployment; (d)  each Client e-mail message appropriately identifies the subject of the e-mail message on the subject line and may not utilize misleading subject lines; (e) each Client e-mail message contains valid, working header information; (f) no Client e-mail mailing content contains any content that RAD deems obscene, contains nudity, threatening. abusive, libelous, hateful, encourages criminal conduct, gives rise to civil liability or violates any federal, state or local law, rule or regulation (“Objectionable Content”). Client shall not propagate chain letters or send malicious email, including but not limited to “mailbombing” (flooding a user or site with large or numerous e-mail pieces). In addition, Client understands and agrees that it is solely responsible and liable for ensuring that its use of the Services complies with the Telephone Consumer Protection Act (the “TCPA”).  If Client intends to use the Services to send text message marketing campaigns, Client agrees that it shall not: (i) send SMS messages to anyone Client does not have the required consent to contact or without the required opt-out method or language within the SMS message; (ii) send any unsolicited messages (spam) or confuse, deceive, defraud, mislead, or surprise people with Client’s communications; (iii) send any messages that contain Objectionable Content; (iv) take any action that imposes an unreasonable or disproportionately large load on RAD’s infrastructure; or (v) impersonate any person or entity or falsely state or otherwise misrepresent an affiliation with a person or entity.

Intellectual Property Rights; Ownership; Supplied Data.

1. License to Supplied Data. Client grants RAD and its affiliates and Subcontractors anon-exclusive, royalty-free, worldwide license to use any data that Client or Client’s designee supplies to RAD, including any Recipient List and Client Materials (“Supplied Data”). RAD may aggregate and deidentify Supplied Data and use such aggregated data for any purpose and such aggregated and deidentified data shall not be considered Supplied Data. Client grants no other right or license to any Supplied Data to RAD by implication, estoppel, or otherwise. Client shall ensure that Supplied Data does not incorporate or include any data relating to individuals under the age of eighteen (18) years and shall be responsible for any claims that may arise in connection with RAD’s use or receipt of such Supplied Data.
2. License to the Platform. Subject to and in accordance with the terms and conditions of this Agreement, RAD hereby grants to Client a limited, nonexclusive, nontransferable and perpetual license to use RAD’s email and text automation platform provided to Client as part of the Services (the “Platform”), subject to the use restrictions set forth in Section 4.3.
3. Use Restrictions. Client shall use the Platform only for marketing purposes and in strict accordance with all: (i) applicable Laws; (ii) industry guidelines (including Direct Marketing Association Guidelines); and (iii) Client’s own privacy policies. Client shall not: (a) copy or otherwise reproduce any Platform, except as necessary for backup or security purposes; (b) resell, or otherwise provide or disclose Platform to any third party; (c) attempt to discover or reverse engineer any confidential and proprietary criteria developed or used by RAD in the performance of the Services; (d) merge or incorporate the Platform with any third party platform or material without RAD’s prior written consent; or (e) use the Platform to enhance any third party file or list, or develop, publish or maintain any list, enhancement, directory, or other similar product. Client shall provide to RAD, upon RAD’s request, a copy of all components of any Client direct marketing offer using the Platform for RAD review and approval. If Client fails to comply with this Section 4.3, RAD may suspend the applicable Services. Client shall not use the Platform to refer to selection criteria or presumed knowledge about the Recipient in any marketing communication. RAD may, upon reasonable notice to Client, amend the terms and conditions relating to Client’s use of the Platform and the Services to address any requirements imposed by Laws, or matters concerning privacy and confidentiality pertaining to data provided hereunder. Client shall honor all Unsubscribe and Opt-out requests received by Client outside of the RAD provided Services to a Recipient List within ten (10) days following such request. Client shall provide any Unsubscribe or Opt-out requests it receives to RAD within ten (10) days and at regular intervals for up to thirty (30) days after RAD deploys an e-mail message.
4. Supplied Data. During the term of the Agreement, each Party represents and warrants that it will comply with current and new laws, regulations, governmental requirements, and industry standards applicable to the processing of Supplied Data, including personal information contained therein (“Data Laws”) and will provide the same level of privacy protection as is required by Data Laws. Client represents and warrants that it has the appropriate and required permissions and consents for it to disclose the Supplied Data to RAD and for RAD to use such Supplied Data in compliance with the Agreement and as otherwise instructed by Client. Client will promptly notify RAD if there is any request, complaint, or demand that would impact RAD’s ability to process Supplied Data in compliance with the Agreement. Each Party agrees to implement and maintain physical, technical, and administrative safeguards to protect Supplied Data, taking into account the nature of the processing of such data. Each Party shall promptly notify, if legally permitted, and cooperate with the other Party to the extent reasonable and necessary for the other Party to comply with, any requests, demands, notices, investigations, complaints, or other actions from third Parties (including, without limitation, from individuals or governmental authorities) related to either Party’s processing of Supplied Data. Each Party shall notify the other Party without undue delay of any confirmed security incident that leads to unauthorized access, misappropriation, loss, damage, or other compromise of the security, confidentiality, availability, or integrity of Supplied Data.

Fees and Expenses; Payment Obligations.

1. Fees and Expenses. Client shall pay to RAD, when due, the fee for Services as described in the applicable Order Form. Client agrees to reimburse RAD for all actual, documented, and reasonable travel and out-of-pocket expenses incurred by RAD in connection with the performance of the Services that have been approved in advance in writing by Client. RAD shall issue monthly invoices to Client for the fees that are then payable, together with a detailed breakdown of any expenses incurred.
2. Payment. Client shall pay all invoiced amounts due to RAD within thirty (30) days after Client’s receipt of such invoice.
3. Taxes. All fees payable by Client under this Agreement are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on such amounts. RAD shall be responsible for any taxes imposed on, or with respect to, RAD’s income, revenues, gross receipts, personnel, or real or personal property, or other assets. Client shall be solely responsible for the payment of any sales and use taxes assessed against the sale of Client’s goods and services.
4. Invoice Disputes. Client shall notify RAD in writing of any dispute with an invoice (along with a reasonably detailed description of the dispute) within five (5) days from the date of such invoice. Client will be deemed to have accepted all invoices for which RAD does not receive timely notification of dispute and shall pay all undisputed amounts due under such invoices within the period set forth in 5.2. The Parties shall seek to resolve all such disputes expeditiously and in good faith.
5. Late Payments. Except for invoiced payments that Client is disputing under Section 5.4, Client shall pay interest on all late payments, calculated daily and compounded monthly at 1.5% per month or the highest rate permissible under applicable law, whichever is greater. Client shall also reimburse RAD for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

Representations, Warranties, and Certain Covenants.

1. RAD represents, warrants, and covenants to Client that it shall perform the Services: (i) in a good and workmanlike manner, (ii) in compliance with all Laws; and (iii) in substantial accordance with the specifications set forth in the applicable Order Form.
2. Client represents, warrants and covenants that: (a) the Supplied Data will not violate or infringe in any manner any third party rights, including, without limitation, Intellectual Property rights and rights of publicity and privacy, or any obligations of confidentiality; (b) its use of the Services shall comply with all Laws and these Terms, as may be modified from time to time, as well as the Party’s own publicly available terms, policies and conditions; (c) it shall only use the Services provided hereunder solely to deliver e-mail mailings to customers relating to Client’s proprietary brand(s) only; and (d) it will not use the Services, or the Platform, to send (i) any commercial e-mail or text/SMS message that is not a transactional or relationship message (as currently defined in the CAN SPAM Act of 2003 or as considered under the TCPA) and is sent to a Recipient without the Recipient’s prior affirmative or implied consent for unlawful purposes or (ii) e-mail or text/SMS messages that contain Objectionable Content.
3. NO OTHER REPRESENTATIONS OR WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS SECTION 6, (A) NEITHER PARTY TO THIS AGREEMENT, NOR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, TRADE, OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) EACH PARTY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY THE OTHER PARTY, OR ANY OTHER PERSON ON SUCH PARTY’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 6.

Indemnification.

1. Client Indemnification Obligations. Client shall defend, indemnify, and hold harmless RAD, and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “RAD Indemnified Party”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”), that are incurred by RAD Indemnified Party arising out of or resulting from any third-party claim alleging: (a) that any Supplied Data or RAD’s receipt or use thereof in accordance with the terms of this Agreement infringes any Intellectual Property or other proprietary rights of a third party; (b) Client’s gross negligence, willful misconduct or fraud; (c) Client’s breach of its confidentiality obligations; or (d) Client’s violation of any applicable Laws in Client’s use of the Services.
2. RAD Indemnification Obligations. RAD shall defend, indemnify, and hold harmless Client, and its officers, directors, employees, agents, successors, and permitted assigns (collectively, “Client Indemnified Party”), from and against any and all Losses, awarded against Client Indemnified Party in a final, non-appealable judgment, administrative proceeding, or any alternative dispute resolution proceeding arising out of or resulting from any third-party claim alleging that: (a) any of the Services or Client’s receipt or use thereof infringes any Intellectual Property rights of a third party or (b) RAD’s violation of applicable Laws in RAD’s performance of the Services.
3. Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, RAD shall have no obligations to indemnify or defend Client or any of its Representatives against any Losses arising out of or resulting from infringement claims relating to: (i) any Supplied Data or any instruction, information, designs, specifications, or other materials provided by Client in writing to RAD; (ii) Client’s use of the Services in combination with any materials not supplied to Client or specified by RAD in writing, if the infringement would have been avoided by the use of the Services of RAD not so combined; or (iii) any modifications or changes made to the Services by or on behalf of any person other than RAD.
4. Indemnification Procedures. A Party seeking indemnification under this 7 (the “Indemnified Party”) shall give the Party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; and (b) reasonable cooperation, at the Indemnifying Party’s expense, in the defense of such claim. The Indemnifying Party shall have the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
5. EXCLUSIVE REMEDY. THIS 7 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY OF EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 7.

Limitation of Liability.

1. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT WITH RESPECT TO THE PARTIES’ LIABILITY FOR INDEMNIFICATION, EITHER PARTY’S BREACH OF APPLICABLE LAW, LIABILITY FOR BREACH OF CONFIDENTIALITY OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF USE, REVENUE OR PROFIT, BUSINESS INTERRUPTION, AND LOSS OF INFORMATION), WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2. MAXIMUM LIABILITY. EXCEPT WITH RESPECT TO THE PARTIES’ LIABILITY FOR INDEMNIFICATION, EITHER PARTY’S BREACH OF APPLICABLE LAW, LIABILITY FOR BREACH OF CONFIDENTIALITY OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY, EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO RAD PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

Confidentiality.

1. From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs and services, confidential information and materials comprising or relating to Intellectual Property, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Supplied Data as provided to RAD shall not be considered Client’s Confidential Information. Confidential Information does not include information that at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 9 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable law.
2. The Receiving Party shall (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Receiving Party shall be responsible for any breach of this Section 9 caused by any of its Representatives. At any time during or after the Term, at the Disclosing Party’s written request, the Receiving Party and its Representatives shall, pursuant to 10.3, promptly destroy all Confidential Information and copies thereof that it has received under this Agreement.

Term; Termination.

1. 10.1.Term. The term of this Agreement commences on the Effective Date and continues for the period specified in the Order Form (the “Initial Term”). After the Initial Term, this Agreement will automatically renew for successive additional terms of 1 year each (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless a different Renewal Term is specified in the Order Form, unless either Party in its sole discretion notifies the other Party at least 30 days prior to the end of the Initial Term or the current Renewal Term that such Party declines to renew for the next Renewal Term.
2. 10.2.Termination for Cause.
   1. Either Party may terminate this Agreement, effective upon written notice, to the other Party (the “Defaulting Party”) if the Defaulting Party:
      • materially breaches this Agreement, and the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach;
      • becomes insolvent or is generally unable to pay its debts as they become due;
      • files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;
      • makes or seeks to make a general assignment for the benefit of its creditors;
      • applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
      • is dissolved or liquidated.
   2. RAD may terminate this Agreement, effective upon written notice to Client if Client fails to make timely payment five (5) days after Client’s receipt of written notice of nonpayment.
3. 10.3.Effect of Expiration or Termination. Upon the effective date of termination of this Agreement, RAD shall cease providing the Services to Client and Client shall cease using the Services. All payment obligations of Client through the effective date of termination shall immediately become due and payable. Upon the expiration or termination of this Agreement for any reason, each Party shall promptly: (a) return to the other Party or destroy, at the other Party’s discretion, all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information; (b) permanently erase all of the other Party’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery or information technology backup systems, which it shall destroy upon the normal expiration of its backup files; and (c) certify in writing to the other Party that it has complied with the requirements of this clause.

Miscellaneous.

1. Entire Agreement. This Agreement, including the related schedules attached hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
2. Survival. Subject to the limitations and other provisions of this Agreement, 5 (Fees and Expenses; Payment Obligations), 7 (Indemnification), 8 (Limitation of Liability), Section 9 (Confidentiality), 10 (Term; Termination), and 11 (Miscellaneous), of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
3. Notices. All notices and other communications hereunder (including, for example, requests, consents, claims, demands, and waivers) shall be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving Party from time to time in accordance with this section). All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), e-mail (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt by the receiving Party, and (b) if the Party giving the notice has complied with the requirements of this 11.3.
4. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
5. Amendment and Modification. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized Representative of each Party.
6. Waiver. No waiver by either Party of any of the provisions hereof shall be effective unless explicitly set out in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
7. Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
8. Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Sections 4 and 9 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Client of any such obligations, RAD shall, in addition to any and all other rights and remedies that may be available to RAD at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that such Party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this 11.8.
9. Assignment. Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement, without the prior written consent of the other Party; provided, however, that RAD may assign this Agreement to an affiliate, a successor-in-interest by consolidation, merger, or operation of law or to a purchaser of all or substantially all of such Party’s assets. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns.
10. 11.10.No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
11. 11.11.Choice of Law. This Agreement and all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Virginia, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Virginia.
12. 11.12.Choice of Forum. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the courts of the State of Virginia sitting in Richmond County. A final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
13. 11.13.Relationship of Parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. RAD is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
14. 11.14.Counterparts. This Agreement may be executed in one or more counterparts, each of which is an original, and all of which together constitute only one agreement between the parties.