WHEREAS, Company provides access to the Services (as defined below) to certain third parties; and
WHEREAS, Licensee desires to access the Services, and Company desires to provide Licensee access to the Services, subject to the terms and conditions of this Agreement and that certain Software as a Service Agreement by and between Company and Licensee’s employer or other third party (“Customer”), pursuant to which such party has purchased a subscription to use the Services ( a “User Subscription”) on Licensee’s behalf and Licensee has been designated as an “Authorized User” of the Services (hereinafter, the “SaaS Agreement”).
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
- “Access Credentials” means the user name or ID, login credentials, passwords, and any other credentials necessary for an Authorized User to access and use the Services.
- “Aggregated Statistics” means data and information related to Licensee’s use of the Services that is used by Company in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- “Authorized User” means any individual who, pursuant to the SaaS Agreement, is provided the necessary Access Credentials and network links or connections to enable access and use of the Services.
- “Business Day” means a day other than a Saturday, Sunday or public holiday in Florida when banks in Florida are open for business.
- “Company IP” the Services, the Documentation, and any and all intellectual property provided to Licensee in connection with the foregoing. For the avoidance of doubt, Company IP includes Aggregated Statistics, Feedback, and any information, data, or other content derived from Company’s monitoring of Licensee’s access to or use of the Services, but does not include Licensee Data. “Device” means any device owned or otherwise controlled by Licensee or Customer and used to access the Services.
- “Documentation” means any and all user manuals, handbooks, and guides (in any medium) relating to the Services and use thereof, whether made available in electronic or hardcopy format.
- “Feedback” has the definition ascribed thereto in Section 7(c).
- “Interactive Services” has the definition ascribed thereto in Section 6.
- “Normal Business Hours” means between the hours of 8:00 a.m. and 6:00 p.m. Eastern Time on any Business Day.
- “Notice” has the meaning ascribed thereto in Section 27.
- “Services” means the means the online software application and content otherwise known as the HOW2 Application.
- “Third-Party Materials” has the meaning ascribed thereto in Section 12.
- “User Contributions” means, collectively, any information to be published or displayed on public areas of the Services, or transmitted to other users of the Services or third parties, including but not limited to messages, text, recordings, photographs, and other content or media.
Grant and Scope of License.
- Subject to and conditioned on Licensee’s strict compliance with the terms and conditions of this Agreement, and Customer’s strict compliance with the terms and conditions of the SaaS Agreement, Company hereby grants Licensee a non-exclusive, non-transferable, non-sublicensable right to access and use the Services and Documentation during the term (the “Term,” as further defined by the SaaS Agreement), unless otherwise terminated in accordance with Section 14, solely for use by Licensee in accordance with the User Subscription purchased by Customer. Company shall provide to Licensee the necessary Access Credentials to allow Licensee to access the Services.
- License agrees that: (i) in the event you are an Authorized User pursuant to the SaaS Agreement, you may only access and use the Services for your personal use to undertake any training for the purposes of improving your teaching technique, as required by Customer, and not for any commercial purposes (for the avoidance of doubt, you will only be provided access to Documentation that Customer has purchased on your behalf); (ii) in the event you are a potential Customer accessing the Services for a trial period, you acknowledge that (A) you may only access Services strictly for purposes of determining whether you wish to purchase a subscription to the Services; and (B) Company retains right to limit access to the full features of the Services during the trial period.
Use Restrictions. You shall not at any time, directly or indirectly:
- use the Services, Documentation or any other Company IP for any purposes beyond the scope of the limited license granted in this Agreement or in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law;
- copy, modify, or create derivative works of the Services, Documentation or any other Company IP, in whole or in part, except as expressly permitted by this license;
- modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Services, Documentation or any other Company IP;
- reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Services, or any component or part thereof;
- remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Services or Documentation, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation, or any features or functionality of the Services, to any third party for any reason, including by making the Services available on a network where it is capable of being accessed by more than one device at any time;
- remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Services;
- reveal or disclose your Access Credentials to any third party without the prior written consent of Company; or
- download, print or modify any content or materials obtained through the Services or Documentation without the prior written consent of Company, unless otherwise directed by the Company through the Services or in the Documentation.
Reservation of Rights. The Company reserves all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any intellectual property rights or other right, title, or interest in or to the Company IP. You acknowledge and agree that you do not acquire any ownership interest in the Company IP under this Agreement, or any other rights thereto other than to use the Services and Documentation in accordance with the rights and licenses granted, and subject to all terms, conditions, and restrictions, under this Agreement. Company and its licensors and service providers (as applicable) reserve and shall retain their entire right, title, and interest in and to the Company IP, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Company may monitor Licensee’s use of the Services and collect and compile Aggregated Statistics. As between Company and Licensee, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Company. Licensee acknowledges that Company may compile Aggregated Statistics based on Licensee Data input into the Services. Licensee agrees that Company may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Licensee or Licensee’s confidential information.
- The Services include a messaging center and certain content sharing facilities through which you may communicate with other users of the Services or the public (the “Interactive Services”) by posting, submitting, or sharing User Contributions.
- As an Authorized User of the Services, you may control, via drop-down selection, the visibility of any User Contributions in accordance with the following visibility settings:
- Shared with specific individuals (that you choose);
- Published for visibility by your organization;
- Published for visibility by your organization and (beginning January 1, 2023) your wider network (of other participating organizations).
- With respect to your use Interactive Services and any User Contributions you make, you acknowledge and agree:
- The Interactive Services are not private or confidential;
- User Contributions may be altered, changed, or removed from the Interactive Services in the sole discretion of Company and you hereby waive any rights you may have in having such User Contributions altered, changed, or removed in a manner not agreeable to you;
- Company is under no obligation to oversee, monitor or moderate any Interactive Services we provide;
- Company does not represent or endorse the accuracy or reliability of any advice, opinion, statement, or other information displayed, uploaded, or distributed through the Services by any user, information provider or any other person or entity;
- ANY RELIANCE UPON ANY OPINION, ADVICE, STATEMENT, OR INFORMATION CONTAINED IN ANY USER CONTRIBUTION SHALL BE AT YOUR OWN RISK;
- COMPANY IS IN NO WAY RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE TO YOU ARISING FROM THE USE OF ANY INTERACTIVE SERVICES BY A USER IN CONTRAVENTION OF OUR CONTENT STANDARDS;
- You will use the Interactive Services in a non-commercial manner only and you will not distribute or otherwise publish any material containing any solicitation of funds, advertising or solicitation for goods or services without the express written permission of Company;
- You will not contribute any User Contribution that is, or may reasonably be determined by Company, in its sole discretion, to be:
- Obscene, offensive, hateful, or inflammatory;
- Sexually explicit or pornographic in nature;
- Deceptive, misleading or otherwise misrepresentative;
- Promoting or inciting violence or acts of terrorism;
- Promoting discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or any protected class
- Promoting illegal activity or any criminal act;
- Infringing upon the intellectual property rights of others, including Company;
- Breaching a legal duty owed to any third party;
- Threatening, abusive, invasive of privacy, or causing annoyance, inconvenience, needless anxiety, or emotional distress;
- Harassing or likely to upset, embarrass, alarm, or annoy any other person;
- Impersonating Company or otherwise giving the impression to others that a User Contribution emanates from Company;
- Advertising or promoting the goods or services of others (including by submitting any unaffiliated third party web links);
- Posting deliberately disruptive repetitive messages or distributing “chain letters,” junk mail, spamming solicitations, or other bulk communications; or
- Harmful in any way to the Services or the personal property of others (including by transmitting or uploading Viruses).
- Failure to comply with the terms and conditions of this Section constitutes a material breach of this Agreement, pursuant to which Company may immediately suspend or terminate your access to the Services in accordance with the terms of this Agreement. Company reserves the right to take any and all legal recourse available to Company as we deem reasonably appropriate to remedy a breach of this Section, subject to applicable law. If you become aware of any user using the Interactive Services in contravention or violation of the terms of this Agreement, you agree to promptly report such activity to email@example.com.
Intellectual Property; Feedback.
- Company IP. Licensee acknowledges that, as between Licensee and Company, Company owns all right, title, and interest, including all intellectual property rights, in and to the Company IP and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Materials. Licensee further acknowledges that except as provided herein, this Agreement does not grant Licensee any rights to, under or in any Company IP.
- Feedback. If Licensee or any of its employees or contractors sends or transmits any communications or materials to Company by mail, email, telephone, or otherwise, suggesting or recommending changes to the Company IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Company is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to Company on Licensee’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Company is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Company is not required to use any Feedback.
Access Credentials. You will be provided with Access Credentials that will permit you to access the Services. You are responsible for keeping your Access Credentials secured and confidential, and you shall not permit anyone else to use your Access Credentials. You agree to promptly notify the Company about any unauthorized use of your Access Credentials. Company reserves the right to (a) disable your Access Credentials if in our reasonable opinion you have failed to comply with any of the provisions of this Agreement and (b) from time to time, require you to change your Access Credentials upon notice. Licensee further agrees and acknowledges that Company or Company’s designated auditor shall audit the Services from time to time, at the discretion of Company and in accordance with the terms and conditions of the SaaS Agreement.
Operating System Requirements. To use the Services, you need a Device, an internet connection and up-to-date web browser. We support the most recent versions of commonly-used web browsers such as Chrome, Edge, Firefox and Safari. You will also be required to have an email address at which you can receive email.
Collection and Use of Your Information.
Updates; Service Levels and Support.
- Updates. Company may from time to time in its sole discretion develop and provide updates to the Services, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. Company may develop and provide Updates in its sole discretion, and Licensee agrees that Company has no obligation to develop any Updates at all or enable or provide any particular features or functionality. Licensee further agrees that all Updates to the Services will be deemed to be the Services, and related documentation will be deemed Documentation, for purposes of this Agreement and as such shall be subject to all terms and conditions of this Agreement.
- Service Levels. Company shall use commercially reasonable efforts to make the Services available twenty-four (24) hours per day, seven (7) days per week, except for:
- regularly scheduled maintenance during the timeframe of 6:00 p.m. to 2:00 a.m. Eastern Time; and
- unscheduled maintenance performed outside Normal Business Hours, provided that the Company will make reasonable efforts to provide notice to Licensee at least six (6) hours in advance.
- Except as set forth in this Section, this Agreement does not entitle Licensee to any support for the Services, however, Company provides the following support services and may provide additional support from time to time in its sole discretion:
- Access during Normal Business Hours to the to the helpdesk, which can be reached at firstname.lastname@example.org.
- Informational tips and other Documentation on how to use the Services
- Web hosting;
- Technical support;
- Administrative support.
- Any additional support services as requested by Customer and agreed to by Company.
Suspension. The Company, in its sole discretion, may suspend access or use of the Services at any time for any reason or no reason at all.
Term and Termination.
- The term of Agreement commences on the Effective Date and will continue in effect until terminated by you or Company as follows:
- You may terminate this Agreement by discontinuing your use of the Services.
- Company may terminate this Agreement at any time without notice, subject to the terms and conditions of the SaaS Agreement.
- This Agreement will terminate immediately and automatically without any notice: (A) if you violate any of the terms and conditions of this Agreement; (B) in the case of a trial period, two (2) weeks after the Effective Date; or (C) upon the termination of the SaaS Agreement by Customer.
- Upon termination:
- all rights granted to you under this Agreement will also terminate; and
- you must cease all use of the Services.
- Termination will not limit any of Company's rights or remedies at law or in equity.
Disclaimer of Warranties.
- COMPANY DOES NOT MAKE ANY REPRESENTATIONS OR GUARANTEES REGARDING UPTIME OR AVAILABILITY OF THE SERVICES EXCEPT AS SET FORTH HEREIN. THE SERVICES ARE DESIGNED FOR THE PURPOSE OF ASSISTING THE TRAINING OF EDUCATORS; THE CONTENT AND INFORMATION IS DESIGNED TO BE USED IN CONJUNCTION WITH OTHER SOURCES OF LEARNING, IT IS NOT TO BE TAKEN AS A DEFINITIVE GUIDE ON TEACHING TECHNIQUES. LICENSEE ASSUMES THE SOLE RESPONSIBILITY FOR RESULTS OBTAINED FROM THE USE OF THE SERVICES. THE FOREGOING WARRANTY DOES NOT APPLY, AND COMPANY STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS.
- EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 15(a), THE COMPANY IP IS PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 15(a), COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE COMPANY IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Limitation of Liability. IN NO EVENT WILL COMPANY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO COMPANY FOR LICENSEE’S USER SUBSCRIPTION IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR THE AVOIDANCE OF DOUBT, COMPANY IS IN NO WAY RESPONSIBLE OR LIABLE FOR ANY LOSSES OF OR DAMAGES TO LICENSEE DATA RESULTING FROM THE NEGLIGENCE OF LICENSEE OR ANY THIRD PARTY OR LICENSEE’S FAILURE TO PROCURE, MAINTAIN OR SECURE ITS NETWORK, NETWORK CONNECTIONS, AND TELECOMMUNICATIONS LINKS.
Indemnification. You agree, without limitation, to indemnify, defend, and hold harmless Company and its officers, directors, employees, agents, affiliates, successors, and assigns 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 attorneys' fees, arising from or relating to: (i) Licensee Data, including any processing of Licensee Data; (ii) use or misuse of the Services, including any modifications not made or authorized by the Company; (iii) failure to comply with any applicable laws or regulations; (iv) breach of this Agreement, including but not limited to any non-conforming User Contributions you submit or make available through the Interactive Services; and (v) negligence or willful misconduct as to your use of the Services.
Indemnification Procedures. Whenever any third-party claim, suit, action, or proceeding (“Third-Party Claim”) shall arise for indemnification hereunder, the party entitled to indemnification (the “Indemnified Party”) shall promptly provide written notice of such claim to the other party (the “Indemnifying Party”). In connection with any Third-Party Claim, the Indemnifying Party, at its sole cost and expense and upon written notice to the Indemnified Party, may assume the defense of such Third-Party Claim with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party shall be entitled to participate in the defense of any such Third-Party Claim, with its counsel and at its own cost and expense. If the Indemnifying Party does not assume the defense of any such Third-Party Claim, the Indemnified Party may, but shall not be obligated to, defend against such Third Party Claim in such manner as it may deem appropriate, including settling such Third-Party Claim, after giving notice of it to the Indemnifying Party, on such terms as the Indemnified Party may deem appropriate and no action taken by the Indemnified Party in accordance with such defense and settlement shall relieve the Indemnifying Party of its indemnification obligations herein provided with respect to any damages resulting therefrom. The Indemnifying Party shall not settle any Third-Party Claim without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld or delayed).
Export Regulation. Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Licensee Data outside the US.
US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial product” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the state courts of the State of Delaware and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Mutual Waiver of Jury Trial. BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX BUSINESS ARRANGEMENTS AND SOFTWARE PLATFORMS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED EXPERT AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH PARTY TO THIS AGREEMENT HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG ANY OF THE PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY AND/OR THE RELATIONSHIP ESTABLISHED AMONG THE PARTIES HEREUNDER.
Limitation of Time to File Claims. SUBJECT TO APPLICABLE LAW, ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
Assignment. Company may freely assign or transfer its rights or delegate its duties or obligations under this Agreement. Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Company, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.
Notice. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and, for purposes of notice to Company, addressed to the addresses set forth on the first page of this Agreement or sent to Company at email@example.com, and for purposes of notice to Licensee, addressed to the email address Licensee provides in connection with obtaining access to the Services (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.