Terms and Conditions
SOFTWARE TERMS OF SERVICE
The following Terms of Service ("TOS" or "Agreement") are between you ("you" or "LICENSEE") and Burble Software Company LLC, a Michigan limited liability company ("BSC" or "LICENSOR"), located at 211 N. Union Street Tecumseh, MI 49286 and constitute a legal agreement that governs your use of the Burble Bookings™ and or Burble DZM™ product, software, services and website, as more fully described at www.burblesoftware.com (collectively referred to as the "Service"). You must agree to these TOS before you can use the Service. You can agree to these TOS by: (a) actually using the Service, or (b) clicking a box that indicates you agree to the Service, where such a box is made available to you. If you do not agree to any of the following terms, you may not use the Service. You should print or otherwise save a copy of these TOS for your records.
1. Legal Authority.
To use and/or register for the Service you must be: (a) of legal age to form a binding contract with BSC, (b) having the mental and legal capacity to form a binding contract and (c) cannot be a person barred from receiving the Service under the laws of the United States or other applicable jurisdiction, including the country in which you reside or from where you use the Service. By accepting these TOS you represent that you understand and agree to the foregoing. BSC may update or change these TOS from time to time and recommends that you review the TOS on a regular basis. You can review the most current version of the TOS at any time. If BSC makes a change to the TOS, it will post the revised TOS on our website at the link as herein noted. You understand and agree that your continued use of the Service after the TOS has changed constitutes your acceptance of the TOS as revised. Without limiting the foregoing, if BSC makes a change to the TOS that materially impacts your use of the Service, BSC may post notice of any such change on our website and/or email you notice of any such change to your Burble account.
2. DEFINITIONS
2.1 "Confidential Information" means any confidential and proprietary data and information supplied to it by the other party in any form, including, but not limited to, the Licensee Credentials, processes, formulae, specifications, programs, instructions, source code for operating-system-dependent routines, technical know-how, methods and procedures of operation, benchmark test results, business or technical plans, and proposals.
2.2 "Licensee Credentials" means the valid user ID and password combination that provides user access to the Software.
2.3 "Parachuting Activity" means the following, including but not limited to: parachuting, skydiving, tandem jumping (which necessarily involves close personal contact by two individuals), group skydiving, free falling, experimental test parachute jumping, flying, aircraft ground operations, the exit from the plane, time under the canopy, the landing, any rescue operations or attempts, ground instruction, training, and related activities, both in the air and on the ground, as well as the utilization of the services, facilities and equipment of the LICENSEE and/or others in connection with any of the foregoing activities.
2.4 "Release" means the following, including but not limited to: the written, knowing, intelligent, and voluntary release of liability and assumption of risk of each and every person, organization, and entity that undertakes PARACHUTING ACTIVITIES under LICENSEE’S direct or indirect supervision, management, facilitation or other form of control, prior to their undertaking such PARACHUTING ACTIVITIES.
3. LICENSE GRANT.
3.1 License to the Service. Subject to the terms and conditions of this Agreement, BSC grants to LICENSEE, and LICENSEE accepts, a non-exclusive, nontransferable right and license to access and the Service and documentation during the term of this Agreement for its own internal business purposes and commercial use as defined herein. At its sole cost and expense, LICENSEE shall be responsible for providing and maintaining all necessary computer hardware, service (such as operating systems and web browsers), and telecommunications equipment required for its access to and use of the Service.
3.2 Limitations. Except as specifically permitted in this Agreement, LICENSEE shall not directly or indirectly (a) transfer, rent, sublicense, lease, time-share or use the Service in any service bureau arrangement; or (b) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify the Service. LICENSEE is not permitted to circumvent any technological measure that controls access to the Service.
3.3 System Access. Access by LICENSEE to the Service requires the Licensee Credentials. BSC will assign the initial Licensee Credentials for internal users and/or administrators upon registration and full payment of any the License Fees due in accordance with the provisions of this Agreement. Unauthorized access to the Service is a breach of this Agreement and is a violation of law. LICENSEE assumes all responsibility for keeping the Licensee Credentials secret. LICENSEE further assumes all responsibility and liability for any use of the Licensee Credentials, and LICENSEE shall notify BSC immediately upon becoming aware of any abuse or a security breach of the Licensee Credentials, including any use of the Service not authorized by this Agreement.
3.4 Ownership of Modifications. Any separate copyright or other intellectual property rights of any nature that come into existence at any time as a result of any modification or alteration of the Service, or entry of data into the Service, created by or for LICENSEE, shall vest solely in BSC, and LICENSEE assigns all rights, title, and interest, including, but not limited to, copyright in the modifications to the Service and related data to BSC. Any Licensee IP which is not considered by BSC, acting reasonably, as part of the Service, in planned releases, shall vest solely in LICENSEE and BSC hereby assigns, to the extent allowed under applicable law, all rights, title, and interest, including but not limited to, copyright in the enhancements made by LICENSEE, in and to such Licensee IP to LICENSEE.
3.5 Suitability. (a) LICENSEE alone is responsible for determining which service best suits LICENSEE's needs, for installing and operating the Service, and for the results obtained. (b) BSC makes no representation that the Service conforms to or satisfies any federal, state, or local laws. LICENSEE is encouraged to engage professional assistance from attorneys and accountants to evaluate the suitability of the Service for LICENSEE's use. (c) BSC makes no claims that the Service is suitable for LICENSEE's application.
4. PROPRIETARY RIGHTS.
This Agreement provides to LICENSEE a limited license only. BSC and its licensors retain all rights; title and interest in and to the Service and LICENSEE shall not take any action inconsistent with such title and ownership. Under this Agreement, LICENSEE does not acquire any rights of ownership in the Service. LICENSEE acquires only the right to use the Service subject to the terms of this Agreement. LICENSEE acknowledges and agrees that the Service may contain code or require devices that detect or prevent unauthorized use of the Service.
5. PAYMENTS.
5.1 License Fees. LICENSEE agree to pay all fees and charges specified when it signed up for the Service and any part thereof. All fees are exclusive of applicable taxes (e.g. sales, use, or value-added tax), unless otherwise stated, and you are solely responsible for the payment of any such taxes that may be imposed on your use of the Service.
5.2 Credit Card Authorization. LICENSEE may be asked to provide BSC with a credit card number from a card issuer that we accept in order to activate and/or pay for any fees related to the Service. BSC may seek pre-authorization of your credit card account prior to a purchase to verify the credit card is valid and/or has the necessary funds or credit available to cover your purchase. These pre-authorizations will reduce your available balance by the authorization amount until it is released or reconciled with the actual charge. Please contact your card issuer if you have additional questions regarding when an authorization amount will be removed from your statement.
5.3 Payment Method. BSC will charge the monthly subscription fees and any other additional fees you authorize to the charge or credit card account provided by you. By authorizing BSC to charge a credit card for the fees associated with your subscription, you are authorizing BSC to automatically continue charging that card (or any replacement card if the original card is renewed, lost, stolen, or changed for any reason by the card issuer, and the issuer informs BSC of the new replacement card account) for all fees or charges associated with your subscription including any renewal fees as described below. You authorize the card issuer to pay any amounts described herein and authorize BSC, or any other company that acts as a billing agent for BSC, to continue to attempt to charge all sums described herein to your credit card account until such amounts are paid in full. You agree to provide BSC updated information on your credit card upon BSC’s request and any time the information earlier provided is no longer valid. If payment is not received by BSC from your credit card issuer or its agents, you agree to pay all amounts due upon demand by BSC.
5.4 Automatic Renewal of Subscription. When you sign up online for the Service, your monthly subscription will be set to automatically renew each month. This means that unless you cancel your account or change its renewal settings prior to its expiration, your account will automatically renew for another month. At the time of renewal, we will charge your credit card the then-current fees to renew the Service. You may change your renewal settings to another Service plan at any time.
5.5 Account Information and Billing Inquiries. You may consult your Burble account management page for details on your account information including payment method and billing. BSC shall send an electronic invoice to your email address whenever any Service fees are charged to your account. If you believe you have been billed in error for the Service please notify us within 45 days of the billing date by contacting support.
5.6 Cancellations and Refunds. All fees and charges paid by you in relation to the Service are nonrefundable, except as otherwise stated herein. BSC shall refund the applicable fees paid by you upon initial online sign up or renewal of the Service provided BSC receives such refund request within forty-five (45) days of the billing date for any such fees. Applicable local law may vary this policy.
5.7 Changes in Price. BSC may at any time, upon notice required by applicable law, change the price of the Service or any part thereof, or institute new charges or fees. Price changes and institution of new charges implemented during your subscription term will apply to subsequent subscription terms and to all new subscribers after the effective date of the change. If you do not agree to any such price changes, then you must cancel your account and stop using the Service. Your continued use of the Service after the effective date of any such change shall constitute your acceptance of such change.
5.8 Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies and similar assessments and LICENSEE agrees to bear and be responsible for the payment of all such charges imposed, excluding taxes based upon BSC's net income. LICENSEE shall pay directly, and indemnify BSC against and repay BSC on demand for, any and all taxes, fees, or charges, such as imposed, excluding taxes based upon BSC's net income. LICENSEE shall pay directly, and indemnify BSC against and repay BSC on demand for, any and all taxes, fees, or charges, such as, but not limited to, local, state, or federal sales, use, excise, personal property, value-added, excise, income, franchise, ad valorem, or stamp taxes; levies; customs duties; or import fees, together with any loss, liability, claim, costs or expenses, interest, or penalties incurred by BSC as a result of LICENSEE's failure to pay any such taxes when due. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any foreign government.
6. TERMINATION.
This Agreement shall commence on the Effective Date and shall continue, unless earlier terminated by Licensee in accordance with Section 5 herein or at Licensor’s election, in its sole discretion. In addition, either party may terminate this Agreement immediately in the event any assignment is made by the other party for the benefit of creditors, or if a receiver, trustee in bankruptcy or similar officer shall be appointed to take charge of any or all of the other party's property, or if the other party files a voluntary petition under federal bankruptcy laws or similar state statutes or such a petition is filed against the other party and is not dismissed within sixty (60) days. Upon termination of this Agreement for any reason, all rights, obligations and licenses of the parties hereunder shall cease, except for the following obligations: (a) LICENSEE's liability for any charges, payments or expenses due to BSC that accrued prior to the termination date shall not be extinguished by termination, and such amounts (if not otherwise due on an earlier date) shall be immediately due and payable on the termination date; (b) no rebate for any unused portions of each annual License Fee will be provided unless LICENSEE shall have terminated the Agreement upon a material breach by BSC; and (c) LICENSEE shall, within 14 days of termination, return to BSC and not keep any copies of the Service and any other information supplied under this Agreement whether designated proprietary or not, as well as any training material provided by BSC, and testify in writing that all and any copies of the Service and mentioned material are returned to BSC. As of the termination of this Agreement or the expiration of the Term, LICENSEE shall have no further right to use the Service, and the license granted hereunder shall terminate. Termination, either voluntary or involuntary, shall not entitle LICENSEE to any refund for license fees paid, nor shall it relieve LICENSEE of the obligation to pay any outstanding amounts due BSC.
The provisions of Sections 4 (Proprietary Rights), 7 (Disclaimer of Warranty), 8 (Limitation of Liability), 9 (Compliance with Laws), 10 (Confidentiality), 11 (General Provisions), and this Section 6 shall survive any termination or expiration of this Agreement.
6.1 Duties upon Termination or Expiration. Upon termination or expiration of this Agreement, BSC shall, at no cost to LICENSEE: (i) immediately terminate all current use of and refrain from further use of any LICENSEE materials (including Licensee IP) in possession or contained in the Service; (ii) refrain from selling, distributing or otherwise disposing of any and all LICENSEE content and promotional materials; (iii) subject to Section 6.1, purge the LICENSEE materials from any and all computer systems, databases and files owned, operated or licensed by, for or on behalf of BSC; and (iv) deliver to LICENSEE, in a mutually agreed upon format, using the best available security measures, any and all data and information received from LICENSEE or any other authorized party, including, without limitation, any and all LICENSEE system content (including all LICENSEE materials in its possession) and shall destroy or delete all copies of such material that are in its possession. Upon termination or expiration of this Agreement other than in connection with a termination pursuant to Section 6.1, LICENSEE shall, at no cost to BSC (i) terminate all current use of and refrain from further use of the Service; (ii) subject to Section 6.1, purge the Service from any and all computer systems, databases and files owned, operated or licensed by, for or on behalf of LICENSEE; and (iii) deliver to BSC, in a mutually agreed upon format, using the best available security measures, any and all Service and other information received from BSC pursuant to this Agreement and shall destroy or delete all copies of such material that are in its possession.
Upon request by either party, such requested party shall deliver a certificate certifying as to compliance with these termination duties.
7. DISCLAIMER OF WARRANTY.
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE SERVICE IS NOT ERROR-FREE AND IS BEING PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. BSC HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICE INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. BSC MAKES NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE OF THE SERVICE, OR THAT THE PROVISION OF THE SERVICE, ACCESS TO THE SERVICE AND TO LICENSEE DATA STORED ON BSC SERVERS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
8. LIMITATION OF LIABILITY & INDEMNITY.
8.1 Limitation of Liability.
8.1.1 AS TO SERVICE: LICENSEE RECOGNIZES AND FREELY ADMITS THAT BSC SHALL IN NO EVENT BE LIABLE FOR ANY LOSS OF DATA, PROFITS OR USE OF (OR INABILITY TO USE) THE SERVICE, OR RESULTING FROM LOSS OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF LICENSEE’S TRANSMISSIONS OR DATA OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICE, WITHOUT REGARD TO WHETHER BSC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BSC’S LIABILITY TO LICENSEE FOR DAMAGES SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY LICENSEE UNDER THIS AGREEMENT. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. . Service error can cause a significant loss of data. BSC shall not be responsible for any loss of data. It is LICENSEE's responsibility to have adequate backup procedures to protect LICENSEE from significant loss of valid data.
8.1.2 AS TO PARACHUTING ACTIVITIES: THE SERVICE RELATES TO THE SCHEDULING AND CLERICAL MANAGEMENT OF "PARACHUTING ACTIVITES" AND IT IS UNDERSTOOD BY LICENSEE THAT PARACHUTING ACTIVITIES ARE INHERENTLY DANGEROUS AND THAT THERE ARE SERIOUS RISKS INVOLVED IN PARTICIPATING IN OR PROVIDING SUCH ACTIVITIES AND PARTICIPANTS CAN BE SERIOUSLY AND PERMANENTLY INJURED OR EVEN KILLED AS A RESULT OF PARTICIPATION IN PARACHUTING ACTIVITIES. LICENSEE HEREBY RECOGNIZES, REPRESENTS, AND WARRANTS THAT BSC BEARS NO ASSOCIATION, RELATIONSHIP, OR OTHER RESPONSIBILITY FOR OR TO LICENSEE’S PROVISION, ACTIONS, OR INACTIONS RELATING TO THE PARACHUTING ACTIVITIES OR TO THIRD PARTIES.
8.2 Indemnification of BSC. LICENSEE shall defend upon demand by BSC, indemnify, and hold harmless BSC and its Affiliates and their respective directors, officers, members, managers, employees, and agents against and from all claims, liabilities, damages, costs, and expenses, including attorneys’ fees, arising out of or in connection with or resulting from (a) the use or possession by LICENSEE or its customers, of the Service or other information, techniques, or practices disclosed by BSC, (b) Use of the Service, Maintenance of the Service, or Support of the Service in connection to LICENSEE’s provision of PARACHUTING ACTIVITIES, (c) the manufacture, use, possession, import, offer to sell, sale, or other disposition by LICENSEE or permitted transferees of any product made or service provided by use of the Service or any other information, techniques, or practices disclosed by BSC, or (d) any advertising or other promotional activities with respect to any of the foregoing, in all cases including any loss of or damage to property and any injury to or death of any person. BSC’s Affiliates, and the directors, officers, members, managers, employees, and agents of BSC and its Affiliates, shall be deemed to be express third party beneficiaries of this Section 8. For purposes of this Section 8, "Affiliate" means any entity that controls, is controlled by, or is under common control with BSC, and "control" means (a) an ownership interest, directly or indirectly, of more than fifty percent (50%) in such entity, or the maximum percentage permitted under local laws or regulations in those countries where more than fifty percent (50%) ownership by a foreign entity is not permitted, or (b) the ability to direct the management or policies of such entity, whether through ownership, contract, or otherwise.
8.3 Warranty by BSCBSC represents and warrants that it has all necessary powers and authority to enter into this Agreement and that it is the proprietor of, or alternatively is authorized to use the Service and has all necessary rights to sub-license the Service to LICENSEE in accordance with the terms of the Agreement. BSC further represents and warrants to LICENSEE that the Service and its use in accordance with any documentation relating to the Service provided by BSC to LICENSEE does not and will not infringe, violate or in any manner contravene, breach or constitute an unauthorized use or misappropriation of any patent, copyright, trade mark, license or other property or proprietary right of any third party.
8.4 Warranty by LICENSEE
8.4.1 LICENSEE agrees to certify on behalf of its respective directors, officers, members, managers, employees, and agents that no personnel involved in the delivery, use, or support of the Service are Specially Designated Nationals (SDN) of country origin on the US Department of Treasury Office of Foreign Assets Control sanctioned list. LICENSEE agrees to notify BSC of involvement from any such representatives. Failure to resolve SDN involvement to the satisfaction of BSC and US Department of Treasury OFAC regulations will constitute a material breach of this Agreement.
8.4.2 LICENSEE further agrees, warrants, and represents that its RELEASE shall also include and release BSC and its Affiliates and their respective directors, officers, members, managers, employees, and agents from any and all forms of liability connected to PARACHUTING ACTIVITIES. Furthermore, the RELEASE shall by drafted by a licensed attorney in the state of LICENSEE’s operation and minimally shall adequately inform participants of the risks of PARACHUTING ACTIVITIES, obtain participants’ assumption of risk and release of liability, include a covenant not to sue and an agreement to indemnify and hold BSC (and its Affiliates and their respective directors, officers, members, managers, employees, and agents) harmless from any and all claims and liability whatsoever (including attorney fees), and bind any participants’ Estate to the same terms. LICENSEE shall make its RELEASE form immediately available to BSC upon written demand for review for such terms and approval of the same in its sole discretion. LICENSEE’s failure to utilize or conform a RELEASE to the satisfaction of BSC will constitute a material breach of this Agreement.
9. COMPLIANCE WITH LAWS.
LICENSEE shall comply with all applicable laws, legislation, rules, regulations, and governmental requirements with respect to use of and licensing the Service, including, but not limited to, import and export restrictions, obtaining any necessary consents and licenses, and registering or filing any documents. LICENSEE shall defend, indemnify, and hold BSC harmless from and against any and all claims, judgments, costs, awards, expenses (including reasonable attorney fees), and liability of any kind arising out of the noncompliance with applicable governmental regulations, statutes, decrees or other obligations with respect to the use of the Service.
10. CONFIDENTIALITY.
10.1 Confidential Information. Each party acknowledges that all data and information supplied to it by the other party in connection with this Agreement, including the terms as set forth in this Agreement is confidential and/or proprietary. All Confidential Information received by either party shall only be used for purposes documented and mutually agreed to in this Agreement or expressly authorized by the providing party. Each party shall protect and preserve all Confidential Information from unauthorized access and disclosure to third parties (other than any agents, consultants, employees or representatives of that party who agree to be bound by the confidentiality provisions of this Agreement) using the same degree of care, but no less than a reasonable degree of care, as it uses to protect its own valuable and confidential information of a like nature. In the event that a party wishes to disclose the other party's Confidential Information to any other person or entity, or copy or otherwise reproduce any such Confidential Information, that party shall first obtain the other party's prior written approval, which that party may provide or withhold in its sole discretion. For the purposes of this Agreement, Confidential Information shall not include data and/or information that: (i) is known by the other party at the time of disclosure as evidenced by written records of that party; (ii) has become publicly known and made generally available through no wrongful act of that party; (iii) is rightfully obtained by that party from any third party without restriction and without breach of this Agreement or breach of any other agreement by such third party or its predecessors; or (iv) is disclosed by that party without restriction pursuant to judicial action or government regulations or other requirements; provided that that party has given the party disclosing the Confidential Information advance notice of any such requirement of disclosure and cooperates with the disclosing party if that party elects to pursue legal means to contest and avoid such disclosure. The commitments pursuant to this Section 10.1 of this Agreement shall continue during the Term of this Agreement and survive the termination of this Agreement for five (5) years. Periodically, with reasonable notice and during normal business hours, each party may require the other party to furnish information relating to that party's efforts to fulfill its obligations of confidentiality under this Agreement. LICENSEE agrees to allow BSC access to LICENSEE's computer systems to verify appropriate protection of BSC's trade secrets as defined in Section 10.2 and LICENSEE's usage of the Service.
10.2 Trade Secret. BSC considers the Service, databases, and files associated with operating the Service, along with training materials, release plans, feature designs, and supporting documentation to be a trade secret. BSC does not disclose any information to BSC competitors or potential competitors and expects LICENSEE to not disclose any such material to BSC competitor or potential competitors. LICENSEE shall not use this trade secret design, code, or documentation gained by access to the Service to develop a competing service product, or share with competitors or potential competitors of BSC.
11. GENERAL PROVISIONS.
11.1 Waiver. The waiver by either party of a breach or a default of any provision of this Agreement by the other party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.
11.2 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, USA, without regard to its choice of law provisions. Exclusive jurisdiction and venue for any litigation arising under this Agreement is in the federal and state courts located in Michigan and both parties hereby consent to such jurisdiction and venue for this purpose.
11.3 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing signed by both parties, and then such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given. Terms set forth in any purchase order of LICENSEE (or other similar document) that are in addition to or at variance with the terms of this Agreement are specifically waived by LICENSEE. All such terms are considered by BSC to be proposed material alterations of this license and are rejected. LICENSEE's purchase order is only effective as LICENSEE's unqualified commitment to pay for a license to the Service upon the terms (and only the terms) set forth herein.
11.4 Assignment. This Agreement and the rights and obligations hereunder, may not be assigned, transferred, or sublicensed in whole or in part by LICENSEE.
11.5 Notices. Any notice or communication from one party to the other shall be in writing and either personally delivered or sent via facsimile, expedited commercial delivery service, or certified mail, postage prepaid and return receipt requested, addressed to such other party at the addresses or facsimile numbers specified at the beginning of this Agreement. All such notices and communications shall be deemed properly given three (3) days after posted if by mail, on the date of delivery if given by expedited commercial delivery service, and immediately if by hand or by facsimile receipt confirmed.
11.6 Force Majeure. Except for payment obligations, neither party shall be liable for delays or nonperformance of this Agreement occasioned by acts of God, public enemies, civil disobedience, governmental regulations or decrees, labor disputes, unavailability of materials, equipment failure, strikes, fires, accidents, or any other causes, whether or not of the kind enumerated in this provision, that are beyond such party’s reasonable control. Except for payment obligations, if performance by either party to this Agreement is delayed due to any of the foregoing causes, such delay shall not be deemed a breach under this Agreement, and this Agreement shall remain in full force and effect. If it appears that performance by either party to this Agreement will be delayed due to any of the foregoing causes, such party shall promptly notify the other party in writing stating the cause of the delay and its expected duration and shall use commercially reasonable efforts to carry out performance as soon as reasonably possible.
11.7 Severability. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, that provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.
11.8 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, and all such counterparts shall constitute one and the same instrument. This Agreement may be executed via facsimile or PDF transmission.
11.9 Regulatory Reporting. It is understood that BSC is allowed to incorporate LICENSEE's name in any public filings required by law.