ERC Registry Terms & Conditions
Please note: a free listing is available to all artists, performers, speakers, film crew, services and facilities. All references to "cost or fees" in the Terms & Conditions below apply to OPTIONAL features which you may elect to purchase.
1. Definitions. In this Agreement:
A. "ERC" refers to Entertainment Resource Center, Inc, a sponsored listing of performers and related businesses.
B. "You" and "Your" refers to the Individual Artist or the Group Artist listed below after paragraph 24.
C. An "Individual Artist" is a natural person contracting with ERC on his/her own behalf and on behalf of no one else.
D. A "Group Artist" is two or more natural persons contracting with ERC as a single act or performance. If You are agreeing on behalf of a Group Artist to be bound by the terms of this Agreement, each reference to "You" and "Your" in this Agreement shall refer to each member of the Group Artist, individually, as well as to the Group Artist as a whole. "Your" accepting of this agreement states that you have the authority to represent all members of your group who are also bound by the terms of the agreement and they have authorized you to submit materials, information, sound bytes or images on their behalf.
E. "Web Site" and "Web Sites" refers to any web site hosted on computers owned or controlled by ERC including those accessible at www.ercregistry.com, film.ercregistry.com, www.bookentertainers.com, www.bookfilmcrew.com and others.
F. "The Service" refers to services provided by ERC under this agreement.
G. "Content" refers to any web site materials originated and provided by ERC or by You that is included in the Web Site including text, software, music, sound, photographs, graphics, video and messages.
2. Binding Contract. This is a legally binding contract between You and ERC. By submitting Your Material, You are expressly agreeing to the following terms and conditions applicable to Your use of ERC's membership and services at the Web Sites.
3. Web Site Content
Unless otherwise indicated, all Web site materials ("Content") originated by ERC, including, without limitation, the ERC logo, and all designs, text, graphics, other files, and the selection and arrangement thereof are the proprietary and copyrighted property of ERC. You may electronically copy and print to hard copy portions of this Web site for the sole purpose of using materials it contains for informational and non-commercial, personal use only. Any other use of the materials in this Web site that originated from ERC �including any commercial use, reproduction for purposes other than described above, modification, distribution, republication, display or performance�without the prior written permission of ERC is strictly prohibited.
The ERC name and logo are trademarks of ERC, and may not be copied, imitated or used, in whole or in part, without the prior written permission of ERC. In addition, all page headers, custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of ERC, and may not be copied, imitated or used, in whole or in part, without the prior written permission of ERC.
LINKING TO OUR WEB SITE
You are granted a limited, non-exclusive right to create a hyperlink to this Web site provided such link does not portray ERC or any of its services in a false, misleading, derogatory or otherwise defamatory manner. This limited right may be revoked at any time. You may not use, frame or utilize framing techniques to enclose any ERC trademark, logo or other proprietary information, including the images found at this Web site, the content of any text or the layout/design of any page or form contained on a page without ERC's express written consent. Further, you may not use any meta tags or any other �hidden text� utilizing an ERC name, trademark or product name without ERC's express written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of ERC or any third party. ERC makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of Web sites linking to this Web site.
CONTENT SUBMITTED BY YOU
You acknowledge and agree that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials are the sole responsibility of the person from which such Content originated. You are entirely responsible for all Content that is uploaded, posted, transmitted or otherwise made available via the Service by you or through your account, if any. You understand that Content may in some cases be viewed through third party websites or interfaces through which the Service is accessed and/or used and that ERC does not control such third party websites and interfaces. You represent and warrant that you own or have the necessary rights in and to any and all Content (including written consent for each individual person identifiable in such Content to use the name or likeness of each such person in the manner contemplated by the Service) uploaded, posted, transmitted or otherwise made available via the Service by you. ERC does not control the Content posted via the Service and does not guarantee the accuracy, integrity or quality of any such Content. ERC will use commercially reasonable efforts to block or remove offensive or inappropriate Content discovered by or reported to ERC. However, ERC cannot and will not review all Content, and you understand that by using the Service, you may be exposed to Content that you find to be offensive. Under no circumstances will ERC be liable to you or to any third party in any way for any Content, including, but not limited to, for any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of any access to or use of any Content posted, transmitted or otherwise made available via the Service. You acknowledge that ERC is under no obligation to pre-screen or otherwise review any Content, but also that ERC and its designees shall have the right in their sole discretion for any reason and without notice to refuse, move or remove and discard any Content submitted, posted or otherwise available via the Service. You agree that you must evaluate, and bear all risks associated with, the use of any Content, and you shall not rely on the accuracy, completeness, usefulness or nature of such Content. You acknowledge and agree that ERC may preserve Content and may also disclose Content to others if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any Content violates the rights of third-parties; or (d) protect the rights, property, or personal safety of ERC, its users and the public. You understand that the technical processing and transmission of the Service, including Content, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices.
ERC expressly reserves the right to modify or edit the Materials to conform to ERC's technical requirements. ERC also reserves the right to reject any Content if, in ERC's sole and unrestricted judgment, ERC finds the creative quality of the Content insufficient or if the Content is deemed unsatisfactory. You hereby waive any claims You may have against ERC in connection with any inadvertent errors or omissions in the Content as posted by ERC. ERC will not be obligated to return any of the Content to You. In this connection, You understand that You should keep copies of all Content and should not send to ERC the original master copy of any of the Content, as we cannot be responsible for return of any materials sent to us.
ERC'S PERMISSION TO USE CONTENT SUBMITTED BY YOU
You agree that any Content you upload, post, email, transmit or otherwise make available via the ERC Service is non-confidential and that by submitting Content via the Service, and until such Content is removed, you grant ERC a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish such Content solely for the purpose of providing the Service. ERC does not claim ownership of your Content posted, transmitted or otherwise made available by you via the Service. You are solely responsible for your Content and ERC acts only as a passive conduit for Your distribution and publication of your Content.
4. Membership Terms. As a Member, You: (a) agree not to give Your membership ID number or password to any non-members; (b) agree not to hold ERC liable for any non-payment of fees for services performed which were negotiated as a result of a referral from ERC; (c) agree that it is Your responsibility to collect fees for any services performed and that any delay in collecting payment does not negate Your responsibility to pay amount due ERC under terms of this Agreement; and (d) agree not to use ERC's database to identify, contact, refer or contract with any other Member or non-member for any reason unrelated to Your own act or performance, without first notifying ERC..
5. Commencement Date. The term of this Agreement (the "Membership Term") will commence upon ERC's posting of the Materials. The rights of ERC granted herein and the warranties and indemnification given by You to ERC herein, including those stated in paragraph 7 (Member Warranties), paragraph 8 (Release), paragraph 9 (License), paragraph 15 (Indemnity), and paragraph 18 (No Agency), shall survive the expiration or termination of the Membership Term.
6. Membership Fees for Businesses and Services only. ERC's Membership Fees schedule for Businesses and Services (NOT performers, performing artists, and actors) is available at the Web Sites. ERC may change the Membership Policy and the fees for ERC's services from time to time. Unless otherwise stated, all fees are quoted in US dollars. You are responsible for paying all fees associated with using ERC's services and ERC's web site. You will be informed via e-mail of any changes to fees or policies 30 prior to effective date.
7. Member Warranties. You warrant that: (a) You are eighteen (18) years old or older and under no disability, restriction or prohibition with respect to Your right to execute and enter into this Agreement; (b) You have the right to enter into this Agreement and to grant the rights and licenses granted by You herein and that You have secured all third party consents necessary before entering into this Agreement) (c) You are the exclusive owner of all of the Materials or have the authority to grant all of the rights to the Materials as set forth herein; (d) all information contained on the Membership Form or otherwise submitted as part of this Membership Agreement is accurate and truthful; (e) all sound recordings submitted as part of the Materials contain Your original performances and do not use or include any portion of any musical composition or sound recording that is not entirely owned or controlled by You (i.e., there are no unlicensed so-called "samples" contained in the musical work); (f) the Materials submitted to ERC and the use thereof on the ERC web site or otherwise as provided herein will not violate any law, statute, ordinance, or regulation or violate or infringe upon the rights of any other party, including, without limitation, contractual rights, intellectual property rights, publicity and privacy rights and the rights against libel, defamation and slander; (g) no part of the Materials is indecent or obscene; (h) the Materials contain no viruses, Trojan horses, worms, time bombs or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, date or other information; (i) if any member of Your group is a minor, that You have the legal right to execute this Agreement on behalf of the minor artist and guarantee such person's performance of the terms and conditions of this Agreement; and (j) where You refers to a Group Artist, that the signatory to this Agreement is legally authorized to enter into this Agreement on behalf of the Group Artist and by each individual member thereof.
8. Release. Because ERC may not be involved in the actual transaction between Members and the public using Your services, in the event that You have a dispute with anyone we have referred to You, You release ERC (and our offices, directors, agents, subsidiaries and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If You are a California resident, You waive California Civil Code 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
9. License. You hereby irrevocably grant to ERC, its successors, assignees or agents, distributors and licensees, the non-exclusive right and license in perpetuity to display, reproduce, exhibit, publicly display, broadcast, transmit, distribute through electronic means, including via streaming technology, electronically publish and/or synchronize with visual images, the Materials on the ERC web site, and to use the Materials for advertising and promotional purposes with respect to the ERC web site on or outside the ERC web site, by any and all means and media now known or later developed.
10. Termination. You may terminate this Agreement at any time by so notifying ERC. The Agreement will terminate upon ERC's actual receipt of such notice via postal service or email return receipt requested. ERC may terminate this agreement at any time by so notifying You. The Agreement will terminate upon Your actual receipt of such notice or three (3) days after ERC has sent a notice of termination to the e-mail address, which You supplied in Your Materials.
11. Breach. Without limiting other remedies, ERC may immediately issue a warning, temporarily suspend, indefinitely suspend or terminate Your Membership and refuse to provide ERC's services to You: (a) if You breach this Agreement or the documents it incorporates by reference; (b) if ERC is unable to verify or authenticate any information You provide to ERC; or (c) if ERC believes that Your actions may cause legal liability for You, ERC's users or ERC.
12. Privacy. ERC respects Your privacy and promises not to disclose personal or business information to third parties without Your express permission.
13. No Warranty. ERC PROVIDES THE ERC WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. ERC SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to You. This warranty gives You specific legal rights and You may also have other legal rights that vary from state to state.
14. Liability Limit.To the maximum extent permitted by application law, in no event will ERC be liable for incidental, consequential, special or indirect damages. ERC's liability in any event is expressly limited to the fees paid by artist under this agreement. Without limitation of the foregoing, it is agreed that ERC will have no liability whatsoever for interrupted communications, lost data or lost profits, arising out of or in connection with this agreement.
15. Indemnity. You agree to defend, indemnify and hold harmless ERC, its successors, assignees, agents, distributors, licensors and licensees, from any claim, demand, liability, cost and expense (including reasonable attorney's fees and costs) that arise out of, result from or relate in any way to conduct by You that is inconsistent with any agreement, undertaking, representation or warranty made by You in this Membership Agreement.
16. Legal Compliance. Artist agrees to comply with all applicable domestic, and international laws, statutes, ordinances and regulations regarding Your use of ERC's service.
17. Assignment. You agree that this Agreement and all incorporated agreements may be automatically assigned by ERC, in ERC's sole discretion, to a third party in the event of a merger or acquisition.
18. No Agency. You agree that You and ERC are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisee relationship is intended or created by this Agreement. You will have no authority to make or accept offers or representations on ERC's behalf. This Agreement will not create an exclusive relationship between You and ERC.
19. Notices. Except as expressly stated otherwise, any notices shall be given by postal mail to ERC. (in the case of ERC) or to the e-mail address You provide to ERC in Your membership Materials (in Your case). Notice shall be deemed given 24 hours after e-mail is sent, unless the sending party is notified that the e-mail address is invalid. Alternatively, ERC may give You notice by certified mail, postage prepaid and return receipt requested, to the address provided ERC during the registration process. In such case, notice shall be deemed given three (3) days after the date of mailing.
20. Arbitration. Any legal controversy or legal claim arising out of or relating to this Agreement or ERC's services, excluding legal action taken by ERC to collect ERC's fees and/or recover damages for, or obtain an injunction relating to, ERC site operations, intellectual property, and ERC services, shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in Sacramento, California, and judgment on the arbitration award may be entered in any court having jurisdiction thereof. In any arbitration arising under this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs.
21. General. This Membership Agreement will be governed by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents. Both You and ERC agree to submit to jurisdiction in California and further agree that any cause of action arising under this Agreement shall be brought in a court in Sacramento County, California. In any action or proceeding arising out of this Agreement, the prevailing party may recover reasonable attorney's fees and costs. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. ERC's failure to act with respect to a breach by You or others does not waive ERC's right to act with respect to subsequent or similar breaches. Nothing in this paragraph 21 shall supercede Your obligations or ERC's obligations under paragraph 20 of this Agreement.
22. Entire Agreement. This Membership Agreement is fully integrated and contains the entire agreement between ERC and You related to ERC's provision of the on-line services described herein. This Membership Agreement supersedes any and all prior understandings and/or agreements between ERC and You. In consenting to the terms of this Membership Agreement, neither You nor ERC has relied on any promise or representation not set forth in this Membership Agreement.
23. Modifications and Amendments. ERC may modify or amend this Agreement at any time by posting the amended terms on the ERC website. Modifications or amendments to this Membership Agreement shall automatically be effective thirty (30) days after such modification and amendments are initially posted to the ERC website. All other modifications and amendments are enforceable only if they are set forth in a writing signed by the party to be charged.
24. Disclosures. The services hereunder are offered by ERC, a California corporation, located at 2255 Watt Avenue, Suite 300, Sacramento, California. If You are a California resident, You may have this same information e-mailed to You by sending a letter to the foregoing address with Your e-mail address and a request for this information.
BY CLICKING THE ACCEPT BUTTON ASSOCIATED WITH THIS AGREEMENT I AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
SERVICE LISTING AGREEMENT
This Service Listing Agreement (�Agreement�) contains the terms and conditions under which Entertainment Resource Center, Inc., a California corporation (�ERC) agrees to provide you, the subscriber, with a listing on ERC's online (�Database�) located on the Internet at the Web Sites ("Web Site").
By clicking on the �I Accept� button associated with this Agreement on the Web Site, you acknowledge your acceptance of this Agreement. This is a legal agreement between you and ERC, and you are entitled to the listing and other related services from ERC only if you accept all of the terms contained in this Agreement. Before clicking on the �I Accept� button below, please read all of the terms and conditions of this agreement.
Service. ERC agrees to provide You with a listing in the Database and other services associated with the service plan selected by You (the �Services�). ERC agrees to continue to provide such Services contingent upon You not being in breach of this Agreement. The Services are subject to limitations caused by local land lines, atmospheric or technical conditions and may be temporarily unavailable, limited or interrupted or curtailed as necessary or appropriate in the sole discretion of the ERC. ERC reserves the right to change the Services provided in its sole discretion.
Access To Site And Database. You will be provided with a password and account designation (�Password�). The Password will enable you to access your information in the Database. As a material condition to your continued access to and use of the Site and the Services, you are responsible for maintaining the confidentiality of the Password, and are fully responsible for all activities that occur under your Password. You agree to immediately notify ERC of any unauthorized use of your Password or any other breach of security, and ensure that you exit from Your Database entry at the end of each session. ERC is not responsible or liable for any losses or damages arising from your failure to comply with the provisions of this Section. You are responsible for obtaining access to the Site and Database and that access may involve third party fees (such as Internet Service Provider or airtime charges). You are solely responsible for those fees. In addition, you must provide and are responsible for all equipment necessary to access the Site and Database.
Restrictions. The Database (and all content, including without limitation, images, animation, object or font files and all other items) and the accompanying printed or written materials are protected by applicable national copyright laws and are also subject to trade secret laws. Unauthorized copying of the Database or any related materials, including the Database search engine, or those instances where any aspects of the Database or related material have been modified, merged, or included with other data, code or software for any reason, is expressly forbidden. You will be liable for copyright infringement and all damages that result from any such unauthorized copying. You further agree not to de-compile, reverse engineer or disassemble the Database or the Database search engine, or otherwise reduce either to a human perceivable form. You may not modify, adapt, translate, rent, lease, loan, resell for profit, distribute, network or create derivative works based on all or any part of the Database or its search engine, or any accompanying content or documentation.
Billing and Payments. You will pay for the Services according to the payment frequency specified in the offer to provide a given service. Payment will be due in advance prior to delivery of any service. Fees for Services shall be as set forth on the plan description page of ERC's website. Acceptance of late or partial payment will not waive our rights. Payment will be made by credit card, or other means specifically approved in advance by ERC.
Default. If You fail to pay any monies owed to ERC on or before the due date or fail to perform any other obligation to ERC, violate any laws, regulations or rules in connection with the use of the Services, ERC will provide written notice of such default to You and You shall have ten (10) days from the date of the written notice to cure the default. If the default is not cured by You within the ten (10) day period, ERC may immediately terminate this Agreement and remove Your listing from the Database.
Effects of Termination. In the event of termination of this Agreement, You shall forfeit any monies already paid to ERC. Upon termination, any fees or monies due to ERC will be immediately due and payable. Your access to Services and Your account will be deactivated immediately upon termination of this Agreement.
Account Information. You consent to ERC's disclosure of information about Your account to any person able to provide Your username and password and to the making of changes to the account by any such person.
Limited Warranty. Conditioned upon You not being in breach of this Agreement, ERC warrants that Your listing in the Database will comprise of the information you provide to ERC and designate as part of the listing (�Warranty�). ERC does not warrant that the Services will meet your requirements or that the operation of the Services or Database will be uninterrupted or error free. ERC'S ENTIRE LIABILITY AND Your EXCLUSIVE REMEDY WITH RESPECT TO BREACH OF THE WARRANTY WILL BE A REFUND OF THE FEES PAID BY You. No oral or written information, advice or advertisement given by ERC, its dealers, distributors, agents or employees will create a warranty or in any way increase the scope of the limited warranties set forth herein, and you may not rely on any such information, advice or advertisement for such purposes.
Disclaimer Of Damages. EXCEPT FOR THE EXPRESS LIMITED WARRANTY STATED ABOVE, THE SERVICES ARE PROVIDED �AS IS� WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESSED OR IMPLIED, AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY DISCLAIMED. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES IS WITH You. SHOULD THE SERVICES PROVE DEFECTIVE BEYOND THE STATED WARRANTY OR DUE TO MISUSE, ALTERATIONS OR MODIFICATIONS BY You, OR DUE TO USE OUTSIDE THE SCOPE OF USE FOR WHICH THE SERVICES WERE INTENDED, You (AND NOT ERC OR ANY AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. SOME STATES DO NOT ALLOW THE DISCLAIMER OF DAMAGES, SO ALL OR A PORTION OF THE ABOVE LIMITATION MAY NOT APPLY TO You. THIS WARRANTY GIVES THE SPECIFIC LEGAL RIGHTS AND You MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE.
No Warranties. IN NO EVENT WILL ERC OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION, USE OR DELIVERY OF THE SERVICES BE LIABLE TO You FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, SAVINGS, LOST OR DAMAGED DATA OR OTHER PROGRAMS ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR THE INABILITY OF THIRD PARTIES TO ACCESS Your LISTING IN THE DATABASE, EVEN IF ERC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY NOTHWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR ANY CLAIM BY You OR ANY OTHER PARTY. ERC'S SOLE LIABILITY TO You OR ANY THIRD PARTY AND Your SOLE REMEDY ARISING OUT OF OR RELATED TO THIS AGREEMENT HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE WILL NOT EXCEED THE FEES PAID BY You FOR THE SERVICES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO ALL OR A PORTION OF THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO You
Indemnification. You shall defend, indemnify and hold harmless ERC from and against any and all claims, demands or causes of action (including costs and reasonable attorney's fees) arising from the You's use of the Services, except to the extent arising from the intentional misconduct of ERC or its employees.
Miscellaneous. The rights and obligations of the parties and the interpretation and performance of this Agreement shall be governed by the law of California, excluding its conflict of laws rules. Any litigation, suit or other proceeding regarding the rights or obligations of the parties hereunder shall be conducted before an appropriate court in Sacramento County, California, and the parties specifically consent to Sacramento as the exclusive location for any such proceeding. This Agreement may be executed in any number of counterparts with the same effect as if the parties had all signed the same document. All counterparts shall be construed together and shall constitute one agreement. Any of the terms or conditions of this Agreement may be waived at any time by the party entitled to the benefit thereof, but no such waiver shall affect or impair the right of the waiving party to require observance, performance or satisfaction either of that term or condition as it applies on a subsequent occasion or of any other term or condition. This document constitutes the entire agreement between the parties, all oral agreements being merged herein, and supersedes all prior representations. There are no representations, agreements, arrangements, or understandings, oral or written, between or among the parties relating to the subject matter of this Agreement that are not fully expressed herein. Any notice under this Agreement shall be in writing, and any written notice or other document shall be deemed to have been duly given (i) on the date of personal service on the parties, (ii) on the third business day after mailing, if the document is mailed by registered or certified mail, (iii) one day after being sent by professional or overnight courier or messenger service guaranteeing one-day delivery, with receipt confirmed by the courier, or (iv) on the date of transmission if sent by telegram, telex, telecopy, electronic mail or other means of electronic transmission. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Agreement which can be given effect without the invalid provision shall continue in full force and effect and shall in no way be impaired or invalidated. If the services of an attorney are required by any party to secure the performance of this Agreement or otherwise upon the breach or default of another party to this Agreement, whether or not litigation is commenced, the prevailing party shall be entitled to recover its attorneys' fees, costs The provisions of this Agreement may be modified at any time by agreement of the parties. Any such agreement hereafter made shall be ineffective to modify this Agreement in any respect unless in writing and signed by the parties against whom enforcement of the modification or discharge is sought.