Rosetta Stone 2011 Annual Report Download - page 229

above, shall be immediately refunded to the Company); provided that in such circumstances this Agreement and the
facts and circumstances relating to its execution shall be inadmissible in any later proceeding between the parties,
and the statutes of limitations applicable to claims asserted in the proceeding shall be deemed to have been tolled for
the period between the Effective Date and 10 days after the date on which Section 2(a) is declared unenforceable.
(g) This Agreement constitutes the entire agreement of the parties and a complete merger of prior negotiations and
agreements.
(h) This Agreement shall not be modified except in a writing signed by the parties.
(i) Waiver. No term or condition of this Agreement shall be deemed to have been waived, nor shall there be an
estoppel against the enforcement of any provision of this Agreement, except by a writing signed by the party
charged with the waiver or estoppel. No waiver of any breach of this Agreement shall be deemed a waiver of any
later breach of the same provision or any other provision of this Agreement.
(j) Headings are intended solely as a convenience and shall not control the meaning or interpretation of any provision
of this Agreement.
(k) Pronouns contained in this Agreement shall apply equally to the feminine, neuter and masculine genders. The
singular shall include the plural, and the plural shall include the singular.
(l) Each party shall promptly execute, acknowledge and deliver any additional document or agreement that the other
party reasonably believes is necessary to carry out the purpose or effect of this Agreement.
(m) Any party contesting the validity or enforceability of any term of this Agreement shall be required to prove by clear
and convincing evidence fraud, concealment, failure to disclose material information, unconscionability,
misrepresentation or mistake of fact or law.
(n) The parties acknowledge that they have reviewed this Agreement in its entirety and have had a full and fair
opportunity to negotiate its terms and to consult with counsel of their own choosing concerning the meaning and
effect of this Agreement. Each party therefore waives all applicable rules of construction that any provision of this
Agreement should be construed against its drafter, and agrees that all provisions of the agreement shall be construed
as a whole, according to the fair meaning of the language used.
(o) Every dispute arising from or relating to this Agreement shall be tried only in the state or federal courts situated in
the Commonwealth of Virginia. The parties consent to venue in those courts, and agree that those courts shall have
personal jurisdiction over them in, and subject matter jurisdiction concerning, any such action.
(p) In any action relating to or arising from this Agreement, or involving its application, the party substantially
prevailing shall recover from the other party the expenses incurred by the prevailing party in connection with the
action, including court costs and reasonable attorneys' fees.
(q) This Agreement may be executed in counterparts, or by copies transmitted by telecopier, all of which shall be given
the same force and effect as the original.
10